International Criminal Court: Other Developments

ICClogo

We just reviewed the current status of the investigative situations and cases of the International Criminal Court (ICC). [1] Now we look at two other major issues facing the ICC–Syria and Palestine, last year’s meeting of the Court’s Assembly of States Parties and the Chief Prosecutor’s statement about this month’s being genocide awareness month.

Syria. As we know from many news sources, popular demonstrations against Syrian President Bashar al-Assad commenced in March 2011 and immediately grew throughout the country. In April 2011, the Syrian Army was deployed to quell the uprising, and soldiers were ordered to open fire on demonstrators. After months of military sieges, the protests evolved into an armed rebellion. By January 2013 the U.N. estimated the war’s death toll had exceeded 60,000, and a month later this figure was updated to 70,000. Another 6,000 reportedly were killed in March 2013.

To respond to this horrible suffering, many have called for the ICC to become involved. One who has repeatedly done so is the U.N. High Commissioner for Human Rights, Navi Pillay. Here are some examples:

  • During a debate on Syria by the U.N. Human Rights Council in February 2012, she said she believed that the situation of Syria should be referred to the ICC by the U.N. Security Council.
  • On June 7, 2012, she said, “We continue to witness a serious deterioration of the human rights situation in Syria, which demands our full attention and engagement.” There is evidence of “a pattern of widespread or systematic attacks against civilian populations, and may amount to crimes against humanity and other international crimes. There are indications that the situation in Syria – at least in certain areas – amounts to an internal armed conflict. This would have legal implications, triggering the possibility of commission of war crimes, in addition to crimes against humanity. It makes the call I made to the Security Council to consider referring the case of Syria to the International Criminal Court even more urgent.”
  • At a February 13, 2013, Security Council meeting, she said, “The lack of consensus on Syria and the resulting inaction has been disastrous and civilians on all sides have paid the price. We will be judged against the tragedy that has unfolded before our eyes.” She said that referring Syria to the ICC could have a very significant preventive effect because it “would send a clear message to both the government and the opposition that there will be consequences for their actions”.

In January 2013, 58 countries signed a joint statement calling for such a referral. In response at least five Security Council members voiced support for same– France, Britain, Australia, Luxembourg and South Korea. The next month, February 2013, U.N. human rights investigator Carla del Ponte said the “time has come” for the Security Council to refer war crimes in Syria to the ICC for prosecution. Similar calls for referral have come from Amnesty International and Human Rights Watch.

The Syrian government obviously opposes such a referral. In January 2013 it said it “regrets the persistence of these countries [that signed the joint statement favoring referral] in following the wrong approach and refusing to recognize the duty of the Syrian state to protect its people from terrorism imposed from abroad.” The statement also accused some of the countries signing the statement of “deceit and double standards” in blaming Syria while financing, training and hosting “terrorists.”

Because Syria is not a state party to the ICC’s Rome Statute, the only way for the Syrian situation to get before the ICC is by a referral from the U.N. Security Council. But so far that has been impossible because Russia and China as permanent members of the Council would veto such a referral as they already have vetoed resolutions to impose sanctions on Syria.[2] For example, this past January the Russian Foreign Ministry said the joint request by over 50 countries for such a referral was  “ill-timed and counterproductive to resolving the main task at this moment: an immediate end to the bloodshed in Syria.”

Palestine. In November 2012 the U.N. General Assembly, 138 to 9 with 41 abstentions, voted to grant non-member observer state status to the Palestinian Authority. Those voting “No” included Israel, U.S. and Canada. The abstainers included the U.K. and Germany.

Israel and the U.S. are concerned that the Palestinian Authority (PA) may use its new U.N. status to try a press for an ICC investigation of Israeli practices in the occupied territories. The PA could: (1) attempt to become a State Party at the ICC by ratifying the Rome Statute and then referring alleged crimes to the ICC; or (2) remain a non-State Party but make a declaration accepting the Court’s jurisdiction over a particular set of crimes.

In either option the PA would have to refer an entire situation or train of events to the ICC that would permit the ICC Prosecutor to investigate or prosecute any crime within that situation allegedly committed by anyone, including alleged crimes by Palestinians against Israelis.

The State Party option would require the PA to ratify the Rome Statute and then present a document certifying the ratification to the U.N. Secretary-General, who is responsible for administering the Rome Statute. He would have to decide whether the PA was a state competent to ratify. Should he so decide, the Prosecutor and the rest of the ICC would be obliged to proceed as with any other State Party.

In the non-State Party option of a declaration of acceptance of jurisdiction followed by a referral, the ICC Prosecutor would have to make the first decision on whether the PA was a state competent to make the referral. This decision could be challenged in the Pre-Trial Chamber by the PA, or by another state involved in the situation giving rise to the referral, such as Israel.

The PA has in fact already tried this option by submitting a report of alleged crimes and declaration of acceptance of jurisdiction to the ICC Prosecutor in 2009. In April 2012, however, the Prosecutor released a statement that at he was not empowered to decide on the PA’s statehood status. Instead, the Prosecutor said, a U.N. body such as the Security Council or the General Assembly, or the ICC’s Assembly of States Parties, would have to make this determination. After the General Assembly’s recent action, the press has reported that the current Prosecutor is giving the earlier PA declaration further consideration.

Assembly of States Parties. Last November the Assembly of States Parties (ASP) held its 11th session and adopted a budget and made certain elections.

The ASP approved an amendment to the Court’s Rules of Procedure (new Rule 132 bis) that will permit a single judge to perform the functions of a Trial Chamber for the purposes of trial preparation. The amendment was agreed by consensus and is expected to expedite ICC trial preparation.

The ASP also had a general discussion of complementarity, i.e., the principle and practice of the ICC’s deferring to criminal prosecutions in national court systems. Helen Clark, the former prime minister of New Zealand and current administrator of the U.N. Development Program, spoke about the role international development agencies, such as UNDP and others, can contribute to domestic capacity for dealing with ICC crimes. She also urged governments to take responsibility to deliver justice.

U.S. Ambassador-at-Large for Criminal Justice, Stephen J. Rapp, congratulated the ASP for this crucial discussion on both the policy and practice of complementarity. He stressed the importance to governments – States Parties and non-States Parties alike – to strengthen domestic judicial capacity in a manner that is both concerted and coordinated. He also said the U.S. supports ICC prosecutions and building national justice systems by funding support of complementarity; using the tools of diplomacy to support complementarity; providing technical and legal assistance to national systems; and improving fugitive tracking efforts.

There also was discussion about an initiative to adopt a treaty on crimes against humanity that has been prepared by the Whitney R. Harris World Law Institute at the Washington University in St. Louis School of Law.

Genocide Awareness Statement by Prosecutor. In light of this April’s being genocide awareness month, the Court’s Chief Prosecutor called on “all States, whether parties to the Rome Statute or not, to cooperate with the ICC in seeking/pursuing accountability for genocide.” In particular, this meant enforcing the ICC’s warrant for the arrest of Sudanese President Omar al Bashir, who is charged with “genocide by killing, causing serious bodily injury or mental harm and by deliberating inflicting conditions of life calculated to bring about the physical destruction of the Fur, Masalit and Zaghawa ethnic groups in Darfur.”


[1] Many posts have covered the ICC.

[2] Some prior posts have discussed possible ICC consideration of the Syrian situation (here and here).

The Latest U.S. Report on International Religious Freedom

On July 30, 2012, the U.S. Department of State released its 2011 Report on International Religious Freedom.

The operating definition for this purpose is found in Article 18 of the Universal Declaration of Human Rights that was approved by the United Nations General Assembly in 1948. It states, “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.” Similar provisions are found in several multilateral human rights treaties.

Introducing the report, U.S. Secretary of State Hilary Clinton placed the subject in a broader context. She said, “religious freedom is both an essential element of human dignity and of secure, thriving societies. It’s been statistically linked with economic development and democracy stability.” Without such freedom, she continued, there can be “a climate of fear and suspicion that weakens social cohesion and alienates citizens from their leaders” and thereby “make it more difficult to solve national problems.” Indeed, she asserted that “the absence of religious freedom . . . is correlated with religious conflict and violent extremism.” As a result, the Obama Administration has made such freedom a diplomatic priority.

This report highlights what it sees as key trends in the year 2011: (a) the impact of political and demographic transitions on religious minorities; (b) the effects of conflict on religious freedom; (c) expanded use and abuse of blasphemy laws; and (d)  the rising tide of anti-Semitism;

This annual report reviewing the worldwide status of religious freedom is mandated by the International Religious Freedom Act of 1988, which also requires the report to designate countries as “Countries of Particular Concern” when they have “engaged in or tolerated particularly severe violations of religious freedom,” i.e., ” systematic, ongoing, egregious violations of religious freedom, including violations such as torture, degrading treatment or punishment, prolonged detention without charges, abduction or clandestine detention, or other flagrant denial of the right to life, liberty, or the security of persons.”

In this latest report covering 2011, the following eight countries were so designated: Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan and Uzbekistan.

With respect to China, the report said in 2011 there was a “marked deterioration . . . in the government’s respect for and protection of religious freedom.” It cited specific restrictions In the Tibetan Autonomous Region and other Tibetan areas. The report noted that only “groups belonging to one of the five state-sanctioned ‘patriotic religious associations'(Buddhist, Taoist, Muslim, Roman Catholic, and Protestant) . . . [could] register with the government and legally hold worship services.” Moreover, “Proselytizing in public or unregistered places of worship is not permitted” and some “religious and spiritual groups are outlawed.” Finally according to the report “Chinese Communist Party (CCP) members are required to be atheists and are generally discouraged from participating in religious activities.”

Not too surprisingly China immediately rejected the report’s comments. China said the report was “full of prejudice, arrogance and ignorance” and was “a political tool used by the U.S. Government to exert pressure on other countries, mostly deemed its rivals.”

The importance of religious freedom for the U.S. is evidenced by the U.S. Constitution’s First Amendment stating “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” and by the U.S. Supreme Court’s broad interpretation of those provisions. This importance also has been demonstrated by the following more recent events:

  • The 1988 enactment of the previously mentioned International Religious Freedom Act, which In addition to requiring the annual reports on the subject, created in the Department of State the Office of International Religious Freedom headed by an Ambassador at Large for International Religious Freedom.
  • That same Act also created the quasi-independent U.S. Commission on International Religious Freedom that is required to issue separate annual reports on such freedom. In addition, it is charged to “consider and recommend options for policies of the [U.S.] Government with respect to each foreign country the government of which has engaged in or tolerated violations of religious freedom, including particularly severe violations of religious freedom, including diplomatic inquiries, diplomatic protest, official public protest demarche of protest, condemnation within multilateral fora, delay or cancellation of cultural or scientific exchanges, delay or cancellation of working, official, or state visits, reduction of certain assistance funds, termination of certain assistance funds, imposition of targeted trade sanctions, imposition of broad trade sanctions, and withdrawal of the chief of mission.”
  • On October 18, 2011, the Department of State established the Working Group on Religion and Foreign Policy that includes representatives of religious groups and other members of civil society. Its mission is to engage in “a continuing dialogue with religious leaders and other members of civil society that informs U.S. foreign policy and fosters common partnerships with the NGO community, including faith-based groups, in support of conflict mitigation and development as well as efforts to promote human rights, including religious freedom.”

I have developed a special interest in Cuban religious freedom, and a subsequent post will review this report’s section on Cuba.

]

Is the International Criminal Court Flawed?

A July 8th New York Times headline proclaims, “Arab Uprisings Point Up Flaw in Global Court.” It erroneously suggests that the people operating the International Criminal Court are stupid or cowardly or that the diplomats who in 1998 drafted the ICC’s governing treaty, the ICC’s Rome Statute, were similarly stupid or cowardly.

The article starts with the facts that the ICC has not initiated an investigation of human rights abuses in Yemen and Syria. That is lamentable, but it is not due to a flaw in the operations of the ICC or the Rome Statute.

It is due instead to the limitations on the Court’s jurisdiction that were intentionally established in the drafting of the Rome Statute because of opposition of states like the U.S. that did not want the Court commencing investigations or criminal prosecutions against their citizens if the state did not ratify that Statute.

That Statute’s Article 12 provides, in part, that the Court has jurisdiction if certain crimes (genocide, crimes against humanity or war crimes) are committed on the territory of a state that is a party to the Rome Statute or by nationals of such a state. Neither Yemen nor Syria is such a party, as is true for all other states in the Mideast except Jordan. Thus, the Court does not have jurisdiction of such an investigation or prosecution under Article 12.

The Rome Statute’s Article 13(b) also provides jurisdiction for the Court if the U.N. Security Council, acting under Chapter VII of the U.N. Charter (Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression), refers a situation of suspected crimes of that nature to the ICC even if the state where the conduct occurred or whose nationals are involved had not ratified the Rome Statute. In fact, as the New York Times article points out, the Security Council has twice done so: Sudan (Darfur) and Libya.

However, as most people know, the U.N. Charter that was drafted in 1945 at the end of World War II grants in Article 27(3)  a veto on any action by the Council to each of its five permanent members: the U.S., the United Kingdom, France, the Union of Soviet Socialist Republics [now Russia] and the Republic of China. The failure of the ICC to undertake any investigation of the Yemen situation is due to a threatened veto by the U.S. of such a referral.

With respect to Syria, the U.S. in June 2011 reportedly was seeking Russian and Chinese support for a Council referral of the situation to the Court, but that was obviously unsuccessful because no such proposal was actually advanced in the Council. In November 2011 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.” Security Council referral of Syria to the ICC also has been endorsed by the New York Times.

The next month (December 2011) the U.N. High Commissioner for Human Rights urged the Security Council to make such a referral. But nothing happened, again because of threatened vetoes by Russia and China.

If there is any “flaw” in this structure with respect to Yemen and Syria it is the veto right of the five permanent members of the Security Council. Although many, if not most, of the U.N. members that are not permanent Council members dislike the superior status and veto rights of the permanent Council members and voice various suggestions for reform of the Security Council, expert observers of the U.N. do not think that is at all likely in the near future.

In the meantime, 121 of the 192 U.N. members are now parties to the Rome Statute, and the Court’s governing body (its Assembly of States Parties) is working towards its goal of universal ratification of the Rome Statute. If and when that happened, the Court could initiate investigations and prosecutions with respect to all such parties without Security Council action.

Over the last 60-plus years the peoples of the world through their nation-state governments have been struggling to climb out of the pits of depravity of World War II by creating or codifying international norms or human rights and by constructing mechanisms to protect individuals that are beyond the control of their own national governments while such governments still have sovereignty over most aspects of their lives. The creation and operation of the International Criminal Court and other so-called ad hoc international criminal tribunals are important pieces of this effort. This is an inherently difficult process, and many compromises are necessary in order to make any progress. But the story is not finished. Further development, I am confident, will occur.

U.S. Releases Annual Report on Human Rights in the World

On May 24, 2012, the U.S. Department of State released its annual report on human rights conditions in every other country in the world. Secretary of State Clinton said that the reports “make clear to governments around the world: We are watching and we are holding you accountable. And they make clear to citizens and activists everywhere: You are not alone. We are standing with you.” Assistant Secretary of State Michael Posner added, “In too many countries, egregious human rights violations continue, including torture, arbitrary detention, denial of due process of law, disappearance, and extrajudicial killings.”

The annual U.S. reports cover internationally recognized individual, civil, political, and worker rights, as set forth in the Universal Declaration of Human Rights and various international treaties. The U.S. Department of State submits reports on all countries receiving assistance and all United Nations member states to the U.S. Congress in accordance with the Foreign Assistance Act of 1961 and the Trade Act of 1974.

The Department of State prepares these reports using information from U.S. embassies and consulates abroad, foreign government officials, nongovernmental and international organizations and published reports. U.S. diplomatic missions abroad prepared the initial drafts of the individual country reports, using information they gathered throughout the year from a variety of sources, including government officials, jurists, the armed forces, journalists, human rights monitors, academics, and labor activists.

Once the initial drafts of the individual country reports are completed, the Department’s Bureau of Democracy, Human Rights and Labor, in cooperation with other Department offices, work to corroborate, analyze, and edit the reports, drawing on their own sources of information. These sources included reports provided by U.S. and other human rights groups, foreign government officials, representatives from the U.N. and other international and regional organizations and institutions, experts from academia and the media. Bureau officers also consult experts on worker rights, refugee issues, military and police topics, women’s issues, and legal matters, among many others. The guiding principle was to ensure that all information was reported objectively, thoroughly, and fairly.

As Secretary of State Clinton stated on the release of the latest report, “Congress mandated these country reports more than three decades ago to help guide lawmakers’ decisions on foreign military and economic aid, but they have evolved into something more. Today, governments, intergovernmental organizations, scholars, journalists, activists, and others around the world rely on these reports as an essential update on human rights conditions around the world – where we have seen progress, where progress has come too slowly or at great cost, and all too often, where it has been rolled back.”

In my work as a pro bono lawyer for asylum seekers in the U.S., for example, these reports were important corroborative evidence to support the claim of someone who alleges that he or she has a well founded fear of persecution on account of race, religion, ethnic group, political opinion or membership in a particular social group if returned to his or her home country. In addition, my experience with some of the country reports, especially El Salvador, has shown that over time they have become increasingly more objective.

With respect to China, the new report said that human rights had deteriorated. It cites “repression and coercion” of rights advocates, tight restrictions on political dissidents, curbs on journalists and on Internet access, and “severe cultural and religious repression” of ethnic Uighurs and Tibetans.

The next day (May 25th) China said that the U.S. report was inaccurate and irresponsible. As the Foreign Ministry spokesperson said, the report was “baseless, biased and completely wrong.” In fact, the spokesman said China has made world-recognized gains in improving human rights since broad social and economic reforms were launched 30 years ago. China’s economy has grown rapidly over the last three decades, and the government marks poverty reduction as one of its greatest human rights achievements. Moreover, the person said, “The Chinese people themselves are the most qualified to judge China’s human rights condition . . . . Countries can hold talks about human rights on equal footing to increase mutual understanding and help each other improve, but should never use the relevant issue as a tool for interfering in the internal affairs of other countries.”

China simultaneously retaliated with its report on human rights in the U.S. It criticized the arrest of Occupy Wall Street protesters and other alleged U.S. violations of civil and political rights.

The Chinese report on human rights in the U.S. reflects other countries’ frequent criticism of the U.S.’ annual reports for failure to evaluate and criticize the U.S. itself. But the U.S.’ recent submission of its own human rights record to Universal Periodic Review by the U.N. Human Rights Council, as discussed in a prior post, is another means for the U.S. to do just that with on-the-record comments and criticism by other governments.




U.N. Security Council Briefing on Libya by ICC Prosecutor

 

Luis Moreno-Ocampo

   

U.N. Security Council

On May 16, 2012, the ICC’s Chief Prosecutor, Luis Moreno-Ocampo, briefed the U.N. Security Council on the status of the ICC’s investigation and prosecution of crimes committed in Libya since February 15, 2011. He did so because the Council on February 26, 2011, had referred this situation to the ICC for investigation and prosecution.

Mr. Moreno-Ocampo reported that his office has been cooperating with states, INTERPOL, NGO’s and others, including the separate U.N. Commission of Inquiry on Libya and the Libyan National Transitional Council (NTC).

The Prosecutor emphasized that the “intensity of the cooperation [between the ICC and the NTC] . . . is only increasing” and that the NTC had asked the ICC to postpone its investigation and prosecution of two individuals to enable Libya to prosecute them for the same crimes. The Prosecutor said that his office was well aware of the “primacy of national proceedings” under the Rome Statute and on June 2nd would submit his comments on the request to the Court.

The report also discussed the Prosecutor’s continuing investigation of gender crimes (rape of opponents), the alleged arbitrary arrests and enforced disappearances of presumed Gaddafi loyalist and the alleged killings, looting, property destruction and forced disappearances of suspected Gaddafi loyalists in the town of Tawergha.

In addition, the Prosecutor stated that his office had investigated alleged crimes by NATO forces, but that it had “no information to conclude that the NATO air strikes which may have resulted in civilian deaths and injury or damaged civilian objects were the result of the intentionally directing of attacks against the civilian population as such or against civilian objects.” Nor did the Prosecutor have any “information to suggest that [NATO] . . .  authorized the launching of strikes in the knowledge that such attacks would cause incidental loss of life or injury to civilians or damage to civilian objects which would be clearly excessive in relation to the concrete and directed overall military advantage anticipated.”

These conclusions regarding NATO were specifically welcomed by some of the NATO members on the Security Council (U.K., France and Germany). Russia and China, on the other hand, expressed concern that no charges had been brought against NATO leaders for some of their air strikes.

The Togo representative on the Council mentioned the need for greater cooperation between the ICC and African states and hoped that the recent visit to the African Union headquarters by the President of the ICC’s Assembly of States Parties “will enable a strengthening of ties so that the shared goal of combating the impunity of the perpetrators of heinous crime can be met.”

The most recent prior post on the ICC and Libya was on November 16, 2011 with nine comments thereto.


The Abominable Rules of the U.S. Senate Are Modified

   The Rules of the U.S. Senate improperly thwart the rule of the majority.[1]

Last week another facet of those Rules raised its ugly head. In response there was a modest indirect change to the rules that facilitates the Senate’s being able to act on measures on the merits.[2]

At least sixty-two Senators, including 11 Republicans, had voted to end debate on a bill to impose sanctions on China for failure to revalue its currency. Under a Rule that allows consideration only of proposed amendments that the parties agree to be considered after cloture, there was an agreement for consideration of seven such amendments for the Chinese currency bill.

Senator Mitch McConnell

Republican Senate Minority Leader Mitch McConnell then made ten motions to suspend the rules to allow introduction, debate and voting on unrelated amendments. Under the Senate Rules, such a motion to suspend the rules requires a two-thirds vote (67 Senators).

In response to one of the motions to suspend the rules, Democratic Senate Majority Leader Harry Reid raised a point of order that such a motion was not permitted. The Senate Parliamentarian speaking through the chair of the Senate rejected the point of order and thereby allowed consideration of the motion to suspend. Reid then appealed the ruling of the chair to the entire Senate, and the Senate by a simple majority vote sustained the appeal and thereby overruled the Parliamentarian and barred the motion to suspend the rules.

Senator Harry Reid

I am against the Senate Rule that requires at least 60 votes to end debate on a measure and another Senate Rule that requires a two-thirds vote (67) to change the Rules. I, therefore, am pleased to see this very modest indirect modification of the Rules to improve the ability of the Senate to act on measures on the merits.

But maybe it is not such a modest change. Senators are now “abuzz” about the previously rarely used tactic of challenging the Parliamentarian’s rulings. Texas Senator John Cornyn, Chairman of the National Republican Senatorial Committee, is reported to have said, “If we get in the majority, in which I anticipate we will, this completely freezes out the minority, which is where the Democrats will find themselves.” There is speculation that it may make Republicans in the current Senate less willing to break a filibuster if Senator Reid does not agree to allow their amendments for votes.[3]

Senator Reid reportedly is trying to soothe tensions by inviting Republican Senators to join Democrats in a rare bipartisan closed-door meeting to discuss these arcane issues of Senate Rules and procedure.[4]

In the meantime, on October 11th, the Senate by a vote of 63 to 35 (with 16 Republicans) passed the bill that would require the U.S. Treasury Department to determine if China was improperly valuing its currency to gain an economic advantage and if such a determination were made to order the U.S. Commerce Department to impose stiff tariffs on certain Chinese goods.[5]

That vote, however, is not the end of that story. Another version of a bill on Chinese currency passed the House of Representatives, 348 to 79, in 2010 while the Democrats still controlled that body. Now House Republicans in the majority do not intend to bring the Senate bill to the floor. The White House probably is pleased with this stalemate because it is concerned about the impact of such a bill on the many issues between the U.S. and China. Not surprisingly China has threatened a trade war if the bill becomes law.[6]


[1] See Post: The Abominable Rules of the U.S. Senate (April 6, 2011).

[2] Sonmez, Senate makes unprecedented rules changes amid late-night debate over jobs, procedure, http://www.washpost.com (Oct. 7, 2011); Reid, Trying to restore Senate comity, http://www.washpsot.com (Oct. 10, 2011); Editorial, Chipping Away at Gridlock, N.Y. Times (Oct. 10, 2011).

[3] Raju, Is 51 the new 60 under Senate rules?, http://www.politico.com (Oct. 11, 2011).

[4] Id.

[5]  Steinhauer, Senate Jabs China Over Its Currency, N.Y. Times (Oct. 11, 2011).

[6]  Id.; Liberto, Senate passes China currency bill, http://www.cnnmoney.com (Oct. 11, 2011).

 

 

 

International Criminal Justice: Libya, Sudan, Kenya, Rwanda and Serbia Developments

Over the last several weeks there have been important developments regarding the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Court (ICC).

ICTR.

As we already have seen, the ICTR is winding down to complete its work by July 1, 2012, and one of the ways it is doing so is referring some cases to national judicial systems.[1] On June 26th, the ICTR referred one of its cases to the Rwandan national courts, the first time it had ever done so. It did so because there was evidence that Rwanda had made material changes to its laws and now had the capacity and intention to prosecute such cases in accordance with international standards of fair trial and human rights. The ICTR suggested that the African Commission on Human and Peoples Rights monitor the proceedings and notify the ICTR of any problems for its possible revocation of the referral.[2]

On June 24th the ICTR announced the conviction of six defendants in the Butare case for genocide and related crimes. They received sentences from 25 years to life.[3]

Finally the recently arrested Bernard Munyagishari made his initial appearance before the ICTR and pleaded not guilty to charges of genocide, conspiracy to commit genocide and crimes against humanity (murder and rape) of Tutsi women.[4]

ICTY.

On June 29th the U.N. Security Council unanimously adopted Resolution 1993 to extend the terms of office of the ICTY judges until December 31, 2012. It did so to facilitate the ICTY’s completing the trial of all of its pending prosecutions. The resolution also called for all States, especially the States of the former Yugoslavia, to intensify cooperation with, and assistance to, the ICTY, including the arrest of Goran Hadzic.[5]

On July 4th Ratko Mladic made his initial appearance before the ICTY and refused to enter pleas  because he said he was not represented by lawyers of his choice. After he had repeatedly and loudly interrupted the proceedings, the judges ordered him removed from the courtroom and thereafter entered pleas of not guilty on his behalf. He faces charges of genocide and war crimes.[6]

ICC

There have been significant developments regarding the Libyan, Sudan (Darfur) and Kenyan  investigations and prosecutions by the ICC. Many of these developments involve the ICC’s tense relations with the African Union (AU) as will be seen below.

Libya. As previously reported, the ICC on June 27th authorized the issuance of arrest warrants for Colonel Muammar Gadhafi and two others for crimes against humanity in Libya since February 15, 2011. The ICC Prosecutor has emphasized the importance and difficulty of making the actual arrests of these three individuals.[7]

On July 2nd the execution of these ICC arrest warrants was made even more difficult by a resolution adopted by the AU. It recommended that its 53 member-states “not cooperate in the execution of the arrest warrant” for Colonel Gadhafi.  This warrant, the AU said, “seriously complicates the efforts aimed at finding a negotiated political solution to the crisis in Libya which will also address, in a mutually-reinforcing way, issues relating to impunity and reconciliation.” This decision increases the chances for Gadhafi to avoid ICC prosecution by obtaining refuge in another African country. The AU also requested the U.N. Security Council to exercise its authority under Article 16 of the ICC’s Rome Statute to defer or stay the ICC’s investigations and prosecutions regarding Libya for one year.[8]

This AU resolution conflicts with the obligations of the 32 African states that are parties to the ICC’s Rome Statute. Its Article 86 obligates them to “cooperate fully with the Court in its investigation and prosecution of crimes within [its] jurisdiction.”

Sudan. Pursuant to U.N. Security Council referral, the ICC Prosecutor has been conducting investigations and prosecutions regarding the Sudan (Darfur). One of the prosecutions has been of the Sudanese President Bashir.[9]

The just noted inherent difficulties of enforcing ICC arrest warrants has also been in the news with respect to the recent trip to China by President Bashir.[10] His earlier trips to other African countries (Chad, Kenya and Djibouti) that are ICC States Parties have been defended by the AU as consistent with these countries’ obligations under the AU’s Constitutive Act and Article 98 of the Rome Statute as well as their efforts to promote peace and stability in their regions.[11]

In the meantime, violence continues in Sudan.[12] The AU Summit issued nice-sounding words about the need for a peaceful transition in Sudan. This included a more general request to the U.N. Security Council to defer all ICC investigations and prosecutions regarding Sudan for one year. [13]

Kenya. As previously reported, the ICC Pre-Trial Chamber on March 31, 2010, authorized the Prosecutor to commence an investigation of post-election violence in Kenya in 2007-2008, and on March 8, 2011, that Chamber authorized the issuance of six arrest summonses.[14]

At its recent Summit, the AU stressed the need to pursue all efforts to have the U.N. Security Council use its authority under Article 16 of the Rome Statute to defer or stay the ICC’s investigations and prosecutions regarding Kenya for one year. Such a deferral, the AU stated, would enable an investigation and prosecution by a reformed Kenyan judiciary in accordance with the ICC’s principle of complementarity. [15]

U.N. Security Council.

As we have just seen, all of the current ICC investigations and prosecutions come from Africa, two upon referrals by the U.N. Security Council and all of which potentially are subject to deferral by the Council. Thus, it is not surprising that the AU at its recent Summit meeting re-emphasized its desire for reform of the U.N. Security Council in order “to correct . . . the historical injustice done to the [African] continent, which continues to be unrepresented in the permanent category and under-represented in the non-permanent category of the . . . [Council].”[16]

To this end, the AU reaffirmed its Ezulwini Consensus on proposed U.N. reforms. With respect to the Security Council, this Consensus called for Africa to have two permanent and five non-permanent members on a reformed Council as chosen by the AU.[17]


[1] Post: International Criminal Justice: Winding Down Two Ad Hoc Criminal Tribunals (June 18, 2011).

[2] ICTR Press Release, Case of Jean Uwinkindi Referred for Trial to the Republic of Rwanda (June 28, 2011); Reuters, U.N. Court Refers Genocide Case to Rwanda, N.Y. Times (June 28, 2011). Uwinkindi is a former Pentecostal pastor who has been accused of genocide, conspiracy to commit genocide and crimes against humanity (extermination) against the Tutsi people. (Id.)

[3] ICTR Press Release, Butare Judgment Released (June 24, 2011)

[4] ICTR Press Release, Bernard Munyagishari Pleads Not Guilty (June 20, 2011).

[5]  U.N. Security Council Press Release, Terms of 17 Judges with [ICTY] Extended (June 29, 2011); ICTY Press Release, Security Council extends Terms of ICTY Judges and Calls for Increased Cooperation with the Tribunal (June 30, 2011).

[6] Reuters, Mladic to ‘boycott war crimes hearing,’ Guardian (July 4, 2011); Simons & Cowell, Hague Judge Orders Mladic Removed From Courtroom, N.Y. Times (July 4, 2011). See Post: International Criminal Justice: Mladic To Face Charges at ICTY (May 27, 2011); Post: International Criminal Justice: Mladic Update (June 1, 2011); Post: International Criminal Justice: Winding Down Two Ad Hoc Criminal Tribunals (June 18, 2011).

[7]  See Post: The International  Criminal Court: Introduction (April 28, 2011); Post: The International  Criminal Court’s Investigations and Prosecutions (April 28, 2011); Post: The International  Criminal Court: Libya Investigation Status (May 8, 2011); Post: The International  Criminal Court: Investigation of Gang-Rape in Libya (May 17, 2011); Post: The International  Criminal Court: Issuance of Libyan Arrest Warrants and Other Developments (June 27, 2011); Stephen, Muammar Gaddafi war crimes files revealed, Guardian (June 18, 2011); Fahim, Claims of Wartime Rapes Unsettle and Divide Libyans, N.Y. Times (June 19, 2011).

[8]  Associated Press, AU Members Agree to Disregard ICC Gadhafi Warrant, N.Y. Times (July 2, 2011); Associated Press, African Union calls on member states to disregard ICC arrest warrant against Libya’s Gadhafi, Wash. Post (July 2, 2011); Amann, AU v. ICC, yet another round (July 3, 2011), http://intlawgrrls.blogspot.com/2011/07/au-v-icc-yet-another-round.html; AU Comm’n, Decisions adopted during the 17th African Union Summit (July 4, 2011), http://www.starafrica.com/en/news. Less than three weeks earlier the AU told the U.N. Security Council that the AU will not hide from its responsibility to help resolve the Libyan conflict. (U.N. Security Council, Press Release: African Union Will Never Hide from Responsibilities in Resolving Libyan Conflict (June 15, 2011).

[9]  See Post: The International  Criminal Court: Introduction (April 28, 2011); Post: The International  Criminal Court’s Investigations and Prosecutions (April 28, 2011).

[10] Post: International Criminal Court: ICC Prosecutor Updates U.N. Security Council on Sudan (Darfur) (June 17, 2011); Higgins, Oil interests tie China to Sudan leader Bashir, even as he faces genocide charges, Wash. Post (June 22, 2011); Associated Press, Embattled Sudan president visits chief diplomatic backer, China, Wash. Post (June 29, 2011); Wines, Sudanese Leader Is Welcomed in Visit to China (June 29, 2011); Associated Press, UN: China Should Have Arrested Al-Bashir, N.Y. Times (June 30, 2011) (U.N. High Commissioner for Human Rights).

[11] AU Comm’n, Decisions adopted during the 17th African Union Summit (July 4, 2011), http://www.starafrica.com/en/news.

[12]  Post: International Criminal Court: ICC Prosecutor Updates U.N. Security Council on Sudan (Darfur) (June 17, 2011); Gettleman, Sudan to Pull Troops From Abyei and Allow Peacekeepers, N.Y. Times (June 20, 2011); Kron, Ethnic Killings by Army Reported in Sudanese Mountains, N.Y. Times (June 20, 2011); Gettleman, As Secesssion Nears, Sudan Steps Up Drive to Stop Rebels, N.Y. Times (June 20, 2011); Bilefsky, U.N. Approves Troop Deployment in Sudan, N.Y. Times (June 27, 2011); Gettleman, Sudan Signs Pact With Opposition Forces, N.Y. Times (June 28, 2011); Reuters, Two Sudans to Create a Buffer Zone, N.Y. Times (June 29, 2011); Kristof, Yet Again in Sudan (June 29, 2011)(Sudanese government conducting vicious campaign of ethnic cleansing, murder and rape in Nuba Mountains); Gettleman, Another Area Girds for Revolt as Sudan Approaches a Split, N.Y. Times (June 30, 2011); Reuters, Sudan President [Bashir] vows to Fight, N.Y. Times (July 1, 2011); Gettleman, Sudanese Struggle to Survive Endless Bombings Aimed to Quell Rebels, N.Y. Times (July 3, 2011); Fagotto, Sudan partition leaves rebel Nuba region feeling betrayed, Guardian (July 3, 2011); Reuters, North and South Sudan Delay Talks Until After Split, N.Y. Times (July 4, 2011); Associated Press, Sudan President to Speak at S. Sudan Independence, N.Y. times (July 4, 2011).

[13] AU Comm’n, Decisions adopted during the 17th African Union Summit (July 4, 2011), http://www.starafrica.com/en/news.

[14]  Post: The International Criminal Court’s Investigations and Prosecutions (April 28, 2011).

[15] AU Comm’n, Decisions adopted during the 17th African Union Summit (July 4, 2011), http://www.starafrica.com/en/news.

[16]  Id.

[17] Au, Elzwini Consensus  (March 8, 2005).