Wednesday, March 04, 2015

Yesterday's complete policy on reparations gives important guidance to future Trial Chambers

Yesterday, 3 March 2015, the Appeals Chamber pronounced its judgment in the case of Thomas Lubanga Dyilo (DRC) regarding reparations to victims. Mr Lubanga’s case was groundbreaking as the Court’s first. Mr Lubanga was found guilty on 14 March 2012, which generated the need to deal for the first time with questions about reparations. The Trial Chamber concluded that it should make its decision a complete policy on reparations, which the Trial Chambers and Trust Fund for Victims could apply when making judgments about handling reparations in the future.

The policy was appealed by both sides. The Appeals Chamber modified and amended the "decision establishing the principles and procedures to be applied to reparations" and thus established the final principles for reparation. Since it is the Appeals Chamber’s first judgment elaborating on who where and why to award reparations, the judgment is epoch-making for the ICC. It is a most important step because the Statute calls for a reparation scheme, but does not lay out its details. The provision of reparations in the Statute is a unique feature that recognizes the need to provide effective remedies for victimsin court proeedings, which has not been recognized before.

The Appeals Chamber confirmed in its policy that the judgment may provide both individual and collective reparations, but that reparations in the case of Mr Lubanga will be awarded only collectively. Thus, the Appeals Chamber instructed the TFV to compose a plan of how to implement collective reparations, which would describe how to implement the principles the Appeals Chamber established. The principles are general concepts, which the Trial Chamber can apply to a future case in light of its specific circumstances. For example, according to the principles not only persons, families and groups of people but also legal entities will be entitled to reparations.

One of the Appeal Chamber’s key amendments of the principles links the responsibility of reparations intrinsically with the convicted. Therefore, Mr. Lubanga has, contrary to the Trial Chamber’s judgment, now become liable for the reparation to the victims. This makes a difference for later cases both emotionally for the victims and instrumentally regarding who pays what. If the TFV for instance advances its resources in order to enable the implementation of the order, it will be able to claim reimbursement of there from Mr Lubanga at a later date.

This reparations policy, refined by the Appeals Chamber, is likely to be controversial but it does provide the TFV with much needed guidance in the proceedings with reparations. The Appeals Chamber instructed the implementation to be finished in six months in which all victims are to be treated fairly and equally, regardless of whether they participated in the trial proceedings.

                                                                                                             Written by Kathrine G. Lodberg

Friday, February 27, 2015

Court demonstrates professionalism and maturity in Chui Appeal

Today, 27 February 2015, the Appeals Chamber of the International Criminal Court pronounced its judgment confirming, by a 3-2 majority, the decision of Trial Chamber II acquitting Mathieu Ngudjolo Chui of charges of crimes against humanity and war crimes. The conduct of this case by the prosecutor and judges has turned out to be completely professional. It has proceeded according to the standards of acknowledged national criminal justice systems around the world. Secondly this clearly impartial judgment demonstrates the internal independence between the offices of the court. 

The Appeals Chamber grounded its decision on technical matters of evidence and process which according to the Chamber did not meet the standard of proof “beyond reasonable doubt”. The judgments of both the Trial Chamber and Appeals Chamber demonstrate the strong emphasis ICC judges give to high-quality and extensive evidence at all stages of a case. It has been clear that the Prosecutor, Fatou Bensouda, will make every effort to meet this requirement in future cases. 

The court has shown that only relevant and admissible items will be admitted into evidence and that every item will undergo a very exhaustive examination. Moreover, the failure to prove the allegation beyond a reasonable doubt does not mean that the Chamber believes that the attack on the village did not happen. Therefore, the judgment “does not negate the fact that crimes were committed in Bogoro or the suffering of the victims” (Fatou Bensouda). 

Written by Kathrine G. Lodberg

Wednesday, January 28, 2015

Statement of the Prosecutor clarifies Palestine's eligibility to ratify Rome Statute

A previous post reported ICC Prosecutor Fatou Bensouda’s press release announcing a preliminary investigation into the Palestine-Israel situation. There is currently continued confusion concerning Palestine’s eligibility for accession to the Rome Statute. The Prosecutor’s press release addressed this issue.

In her statement, the Prosecutor distinguishes between the eligibility of Palestine’s  Rome Statute article 12(3) declaration lodged on January 22, 2009 and Palestine’s more recent ratification of the Rome Statute and simultaneous presentation of a new, second declaration. When Palestine lodged the first declaration with the ICC in 2009, Palestine’s status at the United Nations (UN) existed as “an observer entity.” There were no general international law provisions to guide the Court on how it should respond to this situation. It therefore made its own decision that Palestine was not a state eligible to make the declaration.

As the Prosecutor pointed out in her statement, the UN General Assembly granted Palestine “non-member observer State” status on November 29, 2012. Palestine thereafter presented both the second declaration and a document of ratification to UN Secretary General (UNSG), Ban Ki Moon. This invoked his responsibilities under international law as “depository” of the Rome Statute. These responsibilities are to manage ratifications of those treaties which designate him for this status. Acting in this capacity as depository, the UNSG independently determined, in light of the General Assembly’s 2012 decision, that Palestine now had statehood status and eligibility to ratify the Rome Statute. He therefore accepted Palestine’s accession to the Rome Statute on January 6, 2015, following Palestine’s deposit of the instruments of accession. Under international law, once the depository has acted, officials or judges of the ICC are pre-empted from making any determination about Palestine’s eligibility to ratify the Rome Statute, a fact underscored in the Prosecutor’s statement.

We accept and agree with the Prosecutor’s explanation of this pre-emption.

Written by Michaela Connolly

Friday, January 16, 2015

Prosecutor opens preliminary examination of Palestine situation

ICC Prosecutor Fatou Bensouda announced today in a press release that she has opened a preliminary investigation into the Palestine-Israel situation. The press release is significant not only because it identifies the Prosecutor’s first steps following Palestine becoming a State Party to the ICC , but also because it underscores her commitment to the independence and impartiality of the Court.

As stated by the Prosecutor, a preliminary examination differs significantly from an investigation. A preliminary examination involves reviewing available information to determine whether there is a “reasonable basis to proceed with an investigation pursuant to the criteria established by the Rome Statute.” The Court’s Rome Statute does not impose any deadline for this examination.  The Office of the Prosecutor (OTP) will render a determination only when it has sufficient facts and legal findings to decide whether an investigation is justified.

The Prosecutor also takes special care to identify the reasons for why Palestine is considered a State and thus eligible for accession to the Rome Statute.  In doing so, she emphasizes that it is not the ICC that determines a State’s eligibility to join the Court. She explains this by describing how Palestine’s eligibility was in fact established. Through reference to the United Nations General Assembly (UNGA) Resolution 67/19 – resolution upgrading Palestine to non-member observer state in the UN – the Prosecutor explains that the eligibility of Palestine to accede to the Rome Statute was contingent on Palestine’s statehood status in the UN. 

The Prosecutor makes it expressly clear in today’s press release her determination that her office will proceed in examining the Palestine situation impartially. As the preliminary examination progresses, we will monitor the Prosecutor’s actions to confirm that this impartiality persists, and will provide further information as events unfold.

Written by Michaela Connolly

Tuesday, January 13, 2015

Palestine ratifies the International Criminal Court’s Rome Statute: politicizing the court?

Palestine ratifies the International Criminal Court’s Rome Statute: politicizing the court? 

Palestine’s ratification of the Rome Statute of the International Criminal Court is a significant event for the ICC and for the future of the Palestine/Israel confrontation which has brought and will bring different political reactions to the international and domestic scenario. 

What Abbas did after the UNSC failed resolution

Two weeks ago, President of the Palestinian Authority (PA), Mahmoud Abbas, took the first move toward joining the ICC by signing the Rome Statute. This move directly followed the defeat of a United Nations Security Council resolution that called for an end to Israel’s occupation of Palestinian territory by 2017. It was quickly followed by the PA’s becoming a State Party to the ICC by accession to the Statute. On 7 January 2015, the President of the Assembly of States Parties to the Rome Statute ("the Assembly"), Minister Sidiki Kaba, welcomed the deposit by the State of Palestine of the instruments of accession to the Rome Statute of the International Criminal Court. The deposit was notified on 6 January 2015 by the Secretary-General of the United Nations acting in his capacity as depositary. The deposit of the instruments of accession by the State of Palestine, on 2 January 2015, brings to one hundred twenty-three (123) the number of States Parties to the Rome Statute.
According to Article 126 of the Rome Statute, now that Palestine’s ratification documents have been delivered to the United Nations Secretary General and distributed to the Court’s 122 members, there will be a 60 day waiting period before any member state including Palestine can ask the Prosecutor to look into the Palestine situation. Therefore, the ICC’s jurisdiction over grave crimes committed in Palestine will take effect on 1 April 2015. Palestine also submitted a declaration to the Court under Article 12.3 of the Rome Statute giving it jurisdiction over grave crimes committed on its territory or by its nationals since 13 June 2014. By such a declaration, States can choose to give the Court retroactive jurisdiction over grave crimes committed before the date of accession, but not before 1 July 2002, the treaty’s initial entry into force.

 The possible scenario

The PA has become a State Party by ratifying the Rome Statute of the ICC. Becoming a State Party to the Rome Statute does not guarantee that there will be an ICC investigation into crimes associated with the Israeli- Palestinian situation.
If the ICC conducts an investigation into crimes related to the Palestinian- Israeli conflict, there are several things to consider. Firstly, in order for the Court to have jurisdiction over a crime, the crime must meet a very high standard of seriousness, the so-called “gravity threshold”.  Secondly, the current ICC Prosecutor abides by a formal policy to prosecute crimes and assess opposing parties of a situation concurrently, rather than sequentially. Put simply, both Israel and Palestine would be subject to roughly simultaneous investigations. Thirdly, should a national government with applicable jurisdiction demonstrate a willingness and ability to conduct a thorough and unbiased investigation of the crime in question, the Court must defer to that national government’s criminal jurisdiction (under the Rome Statute’s doctrine of “complementarity”). Therefore, even if Palestine brings a situation to the ICC, should Israel prove its own justice system is capable of dealing crimes within that situation, the ICC would cede jurisdiction to it.
In April 2012, the ICC Office of the Prosecutor (OTP) rejected a special ad-hoc declaration (art.12.3 of the Rome Statute), made by Palestine in 2009 accepting the Court’s jurisdiction over acts committed on its territory since 1 July 2002. Such declarations are reserved for states only. The OTP said that it was unable to proceed with a preliminary examination into whether to open an investigation because it did not have the competence to decide whether Palestine was a state under the Rome Statute, leaving it to the competent UN bodies or eventually the Assembly of States Parties—the ICC’s governing body—to resolve the legal issue relevant to Palestine’s statehood for the purpose of the Court’s jurisdiction. In November 2012, by UN General Assembly Resolution67/19, Palestine’s status at the UN was upgraded from observer entity to non-member observer state, allowing it to join a number of international treaties. At the December 2014 session of the ICC’s Assembly of States Parties, Palestine was for the first time invited to participate with non-state party observer status.

Abbas’s move to join the Court and US ‘s law

As some observers argued, under American law, any Palestinian case against Israel at the court would trigger an immediate cutoff of U.S. financial support. However, ICC membership itself doesn't automatically incur U.S. this action. The FY15 Consolidated appropriations bill passed last month by Congress cuts off all aid to the Palestinians if Palestine starts or supports an ICC’S authorized investigation into Israeli nationals’ crimes against Palestinians. Therefore, this does not mean that by ratifying the RS, the US law will sanction Palestine. Only if the ICC investigates Israeli individuals after a referral made by Palestine, may the US apply this legislation.   

The impartial and cautious approach of the OTP

It is very unlikely that the Prosecutor will start a one side investigation against Israel only. There is no evidence that Palestine has chosen to sign the Rome Statute because the ICC is likely to be hostile and biased about Israel. Instead it is clear to most observers that Palestine has turned to the ICC after concluding that all other international avenues to dealing with the Israel settlements on the West Bank have been blocked.
According a former OTP investigator, Alex Whitining, in the event that the OTP will open preliminary examinations on both Gaza last year crimes arising from the declaration pursuant to Article 12 (3) and the settlements on the West Bank (widely considered a crime against humanity), the Prosecutor will take a very cautious and slow approach. It is also likely that the Prosecutor will start looking into crimes committed by Palestinian extremists affiliated to Hamas. The ICC is not favorable to one state or to another, it deals only with individual criminal responsibility and its goal is to bring impartial justice and to put an end to impunity for the most heinous crimes.
Two arguments that the Court is politicized are now increasingly made.
The first arises from the termination by the Office of the Prosecutor (OTP) of the preliminary investigations of the situation referred by the Union of Comoros regarding the 31 May 2010 Israeli raid on the Humanitarian Aid Flotilla bound for [the] Gaza Strip. The prosecutor, although concluding that there was a reasonable basis for the incident to be considered a crime against humanity, decided that she could not proceed into an investigation. She found that the Rome Statute's requirements for the sufficient seriousness of a crime (the “gravity threshold”) of the RS were not met because the scale of the incident and the number of victims were not enough.
In her preliminary examination, Prosecutor Bensouda applied the Statute without underestimating the relevance of the incidents and its importance for the families of victims. This objective application of the Statute was therefore with any bias toward either Israel or Palestine. It is also claimed that the long explanation of why the settlements might constitute an ICC crime in the 60 page report of the Prosecutor on the Comoros submission shows bias against Israel. In fact, the Prosecutor wanted to show that her decision to cease an investigation was not a judgment about the legal nature of the settlements.
 The second argument is based on the preliminary examination by the OTP about alleged crimes against humanity and war crimes committed by US military and international forces in Afghanistan, particularly the alleged torture or ill treatment of detainees. When reading carefully the PE report issued by the OTP in December 2014, what stands out is the sources of information used by the Prosecutor. There is nothing in the report that could confirm that the OTP is using an inaccurate or superficial approach to the situation. Instead, the Office conducted a mission to Kabul to start collaborating with Afghanistan civil society in a transparent and impartial manner. This collaboration continues. Moreover, the report concluded that the Court did not have jurisdiction over these alleged crimes. Here again is evidence that Bensouda is not playing politics, but rather is taking a slow and cautious approach to complex situations.

Congress’s possible reaction

As evidenced by statements made by the State Department, the US has made it clear that it very strongly disapproves of Palestine membership in the ICC. It has said that it does not accept that the PA has become a state and that it believes that Palestine’s new status as an ICC State party will seriously damage the negotiations between Israel and the PA. Secretary of State John Kerry discussed the matter by telephone with Israeli Prime Minister Benjamin Netanyahu. Other U.S. officials spoke with Palestinian President Mahmoud Abbas, hoping to dissuade him from his course. U.S.-brokered peace talks collapsed last spring and a 50-day war followed between Israel and Palestinian militants in Gaza over the summer. Jennifer Rene "Jen" Psaki, State Department spoke woman said that the administration is reviewing its assistance to the Palestinians to ensure it complies with U.S. law
At the same time, however, the U.S. criticized Israel for withholding tens of millions in tax revenues to the Palestinians, saying such a step "raises tensions." Taken together, the statements reflected Washington trying to come to grips with a Palestinian move it has spent years trying to avert a peace process that offers no hope for an immediate breakthrough.
There is a risk that the Palestine’s accession to the Rome Statute will result in political backlash in Washington, (especially in Congress) against the US policy of constructive engagement with the Court which has been growing since the end of President’s Bush second term and in the Obama’s administration. However, some argue that this move may likely fail as it will damage US relations with many countries important to American international interests.
 The PA is taking a twofold track. On one hand, Abbas would like to see a possible solution regarding the settlement question which would allow the resumption of negotiations with Israel. Palestine has now succeeded in being recognized as a state by most of the international community and thus seeks to negotiate as a state.
Abbas is also seeking justice for the persistent and continuous settlement of Israel of the territory occupied by Palestinians. He wants the Court to find that this could be a war crime or crime against humanity.
According to some experts, if American and the Israelis will stop funding the Palestinian government, it will collapse and extreme elements which are part of the coalition, like Hamas, could then take power.   According to international law experts, Palestine met the criteria for statehood — permanent population, defined territory, government, and recognition by other states — and that those would not be nullified if the authority and the coalition disappeared and chaos ensued on the ground. Therefore, Palestine’s statehood status would not be threatened. Thus, even if the PA dissolves, another Palestine government would still be free to move forward to establish that the settlement policy is a crime within the Rome Statute.

Written for AMICC by
Miriam Morfino on 13/01/2015