Representational Practices at the International Criminal Court: The Gap between Juridified and Abstract Victimhood

Bruce Broomhall, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law (Oxford: Oxford University Press, 2003). Antonio Cassese, Paolo Gaeta, John R.W....

THE POWER OF THE UNITED NATIONS SECURITY COUNCIL TO REFER COUNTRY situations to the International Criminal Court (ICC) has been hailed, particularly among international human rights activists, as a chance to expand the reach of international criminal justice by offering the opportunity to hold accountable perpetrators of atrocities who might otherwise be exempt from prosecution and punishment. The historic referral of the situation in Darfur in March 2003 was widely welcomed as an important step in the fight against impunity as was the Security Council's later, and more controversial, referral of Libya in February 2011. In principle the expansion of the reach of accountability is something to be welcomed, but it is important to recognize the costs of this expansion as well as the danger that they may outweigh the intended benefits. When the ICC was established in 1998, it was heralded as a significant step forward for international justice, a permanent court that would aid in the fight against impunity for genocide, crimes against humanity, war crimes, and eventually aggression, and that would expand the reach of international justice beyond the hybrid and ad hoc mechanisms that had been established in the preceding years. To date, 122 states have become parties to the Rome Statute, accepting the ICC's jurisdiction over humanity's worst crimes, albeit in a form that is complementary or secondary to the jurisdiction of national courts. The Rome Statute includes a number of provisions that are particularly celebrated in the human rights community, not least Article 13(b) that grants the Security Council the power to refer country situations to the court, thereby placing even nonsignatory states under the court's jurisdiction in cases where the Council, acting under Chapter VII of the UN Charter, finds a threat to international peace and security. This, in a sense, simply confirms the powers previously exercised by the Council when it created the ad hoc tribunals for the former Yugoslavia and for Rwanda, among others. But referrals to the ICC engage a whole new set of issues. Along with the referral power, the Security Council was also granted powers to defer an ICC investigation or prosecution for a renewable period of twelve months under Article 16. Unsurprisingly, this provision has been far more contentious among those seeking to advance the legal protection of human rights, and international criminal justice as a whole, with many viewing it as providing an unwelcome opportunity for political interference in a judicial body as well as reducing the scope for accountability. So far, the Security Council has referred only two cases to the ICC--those of Darfur in 2005 and Libya in 2011--and has not yet exercised its Article 16 deferral powers to stay an active investigation or prosecution. In the cases of both Sudan and Libya, the Council's decision to act in the face of evidence of significant and widespread human rights violations was, particularly in the West, largely applauded by those who have actively supported the development of human rights and international criminal tribunals. Both cases demonstrate the primary benefit of Council referrals, which is that they expand the reach of accountability to cases where the ICC would normally not have access--cases where the suspects are either not nationals of a country that has ratified the Rome Statute, or where the crimes under scrutiny were not committed on the territory of a ratifying party. Yet for all the good that Security Council referrals do in expanding accountability and combating impunity, there is a danger they could, and already do, undermine the wider aims of international criminal justice. Such referrals not only could erode the legal principles at the heart of this project, not least the fundamental tenets of the rule of law, but also on a more practical level could provoke a backlash against the ICC over the perceived use of international justice as a bargaining chip or tool to gain political powers. …

This contribution explores the implications of United Nations Security Council (UNSC) referrals under Chapter VII of the Charter of the United Nations to the International Criminal Court (ICC) for the immunity ratione personae of officials of states that are not party to the ICC Statute. While Article 13(b) of the ICC Statute allows the ICC to receive referrals of situations by the UNSC, disagreement remains among authors as to when such a referral removes the customary immunity attached to a head of state of a nonstate party to the ICC Statute. In particular, it remains disputed whether the broad obligation placed on Sudan by UNSC Resolution 1593 (2005) had the implicit effect of doing so. In referring the situation in Darfur (Sudan) to the ICC under Chapter VII of the UN Charter, the UNSC determined that “the government of Sudan, and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the prosecutor pursuant to this resolution.”

In 1998, the international community decided to establish the first permanent International Criminal Court (ICC) with jurisdiction over persons for the most serious crimes of international concern, as referred to in the Rome Statute. As noted by many observers, some of the specific crimes within the Rome Statute are not grounded on customary international law but are more germane to treaty-based crimes. Thus, the exercise of treaty-based jurisdiction over non-party States would conflict with the principle pacta tertiis nec nocent nec prosunt. While the ICC jurisdiction is limited to crimes committed in the territory or by nationals of its States Parties, the Court may, where a situation is referred by the UN Security Council under Chapter VII of the UN Charter, exercise jurisdiction over crimes committed in the territory and by nationals of States not party to the Statute. Since the Rome Statute may go beyond existing applicable law, the referrals to the ICC are thus normative in their character. They impose new rules to be observed by any actors in the situations referred. This paper argues that this feature of a Security Council referral fits the definition of an international legislative act. The paper also inquires whether the obligation to cooperate fully with the Court arising from the Security Council resolution and the principle of complementarity require the State to modify its domestic law.

In the context of a special issue on ‘practices’ at the International Criminal Court, this article focuses on the practice of representation, and in particular on the practice of representing victims. As political and social theorists such as Pitkin and Bourdieu have argued with respect to politics, representation does not merely reflect reality, it is constitutive of it. In the ICC, two practices of victim representation have been prevalent. The first is the rather novel and widely welcomed practice of representing victims as participants in ICC proceedings. The second is the older practice of the discursive invocation of victims as the telos of international criminal law. But these two practices lead in different directions. Victim participation in court proceedings has led to the juridification of victimhood — the legal categorisation of victims — and as a result of this juridification, very few individuals are actually personally represented in the Court’s proceedings. The discursive invocation of victims as the telos of the Court’s work has created a deity-like and seemingly sovereign entity — ‘The Victims’ — that transcends all actual victims and corresponds to no individual victim in their particularity. The result of the two practices is an increasing gap between the limited role that victims play in international criminal proceedings due to the juridification of victimhood and the continued presentation of ‘The Victims’ as the raison d’etre of international criminal law. The overdetermined presence of the figure of ‘The Victims’ as a rhetorical construct obscures the representative challenges faced by conflict-affected individuals in accessing the form of justice that is practiced in their (abstract) name.

The legality principle is enshrined in the Rome Statute, but the International Criminal Court (ICC) can nevertheless exercise jurisdiction over conduct by nationals of non-party States, that occur on the territory of a State that has not ratified the Rome Statute. When the UN Security Council refers a situation in such a State to the ICC, thereby granting it ad hoc jurisdiction over that specific situation, the ICC basically acts as an “ad hoc tribunal”, based on Chapter VII of the UN Charter. It acts, then, in much the same way as the International Criminal Tribunals for the former Yugoslavia and Rwanda were, and are still, acting. Namely, as a judicial body specifically instituted for one situation. In this contribution it is submitted that the ICC, when prosecuting (war) crimes that allegedly occurred on the territory of non-party States, and were allegedly committed by nationals of non-party States, will have to consider whether the said acts are actually punishable by the Court. The crime of attacking peacekeepers, as charged in the Banda case, is looked at as a case study. It is argued that the ICC should, in a similar fashion as the ICTY has done, apply the so-called “Tadic conditions”, or create an ICC version thereof, to establish its jurisdiction – and thereby enhance its legitimacy.

The establishment of the International Criminal Court (ICC) is an extraordinary phenomenon, and perhaps the most important institutional innovation since the founding of the United Nations (UN). The Court has opened up new hopes, raised new challenges and heralded new dispensation in the administration of international criminal justice. To date, the Court has been seized of only seven situations all of which originate from Africa. Five of the seven situations were voluntarily referred to the ICC by African states themselves. The remaining two (Sudan and Libya) are UN Security Council referrals. There is no doubt that Security Council referral is at the heart of the ICC trigger mechanisms. It ensures respect for the ICC and prevents unnecessary proliferation of ad hoc tribunals. The greatest advantage of the Security Council referral is its imperativeness and binding effect on the ICC's states parties and non-states parties alike. This article examines the prospects and challenges of the Security Council referral mechanism within the ICC framework. The article argues that while the Security Council referral mechanism offers so much hope and opportunity in the global fight against impunity, its abuse portends grave danger to the very existence of the ICC.

On 17 July 1998 and after years of negotiation, the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome conference) adopted the Statute of the International Criminal Court (ICC). Although some heralded the creation of the ICC as [one of the] major achievements in international law during the past century, that sentiment was and is certainly not universally shared. In particular the United States has strong reservations about the ICC. The last five years, it has taken what some have called unprecedented diplomatic, legislative, and executive measures designed to diminish the effectiveness of the Court. The most recent of these efforts is the conclusion of so called bilateral 'non-surrender' agreements, in which each state agrees that it will not surrender citizens of the other party to the ICC without the express consent of that other party. The United States argues that these agreements are specifically provided for by Article 98, paragraph 2 of the ICC Statute. The 'non-surrender' agreements are highly controversial and have stirred considerable debate in the international community as well as in the literature. In both cases, however, a piecemeal approach prevails and emotions rather than legal arguments seem to dominate the debate. This thesis aims to remedy these shortcomings by providing a comprehensive legal analysis of the 'non-surrender' agreements without taking a stance on their political or even moral 'appropriateness'. The main research question of this thesis is: are the 'non surrender' agreements as currently concluded by the United States compatible with international law (in particular the ICC Statute) and if not, what would be the consequences thereof‘ Part I of this thesis (Chapters 2-3) will provide the relevant factual introduction necessary to put the phenomena of the 'non-surrender' agreements into context. In particular, it will focus on the position of the United States towards the ICC prior, during and subsequent to the negotiations of the ICC Statute. Part II of this thesis (Chapters 4-6) will provide a legal analysis of the 'non-surrender' agreements and answer the main research question of this thesis. First, it will assess the validity of the 'non-surrender' agreements under international law. Chapter 4 of this thesis will argue that as international law currently stands, the 'non surrender' agreements are not invalid under international law. Having established the validity of the 'non surrender' agreements allows us to move on to perhaps the most important question: Does Article 98, paragraph 2 of the ICC Statute apply to the 'non-surrender' agreements‘ Chapter 5 - which forms the core of this thesis - will argue that the 'non-surrender' agreements are only partially covered by Article 98, paragraph 2 and thus not fully compatible with the ICC Statute. Having established that the 'non-surrender' agreements are neither invalid nor fully covered by Article 98, paragraph 2, we are left with a final question: What consequences does this have under international law‘ Chapter 6 will argue that as international law currently stands, a signatory or state party to the ICC Statute that enters into a 'non surrender' agreement does not breach any obligation under international law. A state party to the ICC Statute that is also a party to a 'non surrender' agreement cannot avoid a breach, however, if it is confronted with an incompatible request (i.e. a request prohibited by the 'non-surrender' agreement but not covered by Article 98, paragraph 2). In such a case it incurs state responsibility. The thesis concludes with a conclusion and summary of findings (Chapter 7).

The African Union (AU) has declared a 'war' on International Criminal Court (ICC), permanent institution established to prosecute and punish persons for the most serious crimes of international concern. This chapter interrogates politics of international criminal justice as it is being played out by face-off between AU and ICC. It analyzes following questions: Is ICC an obstacle to a peaceful resolution of conflicts in some African states? Is justice adverse to peace or can both coexist within same normative and institutional framework? The chapter also examines source of AU's authority, if any, to instruct African states regarding their obligations under ICC Statute. It concludes with a reflection on broader theme and urges AU to work with global community, including ICC and UN Security Council, to resolve current differences. Keywords: African Union; African Union (AU); International Criminal Court; International Criminal Court (ICC); International Criminal Justice; UN Security Council

This paper thoroughly examines the crime of aggression in the form of the blockade of the Gaza Strip imposed by Israel and the jurisdiction of the International Criminal Court (ICC) over this matter, despite Israel not being a state party to the Rome Statute. The research conducted is based on normative judicial research, utilizing primary and secondary legal resources. The findings of this research highlight the significant impact of the blockade on the Gaza Strip and Israel's violation of Article 8 bis of the Rome Statute, which specifically pertains to the crime of aggression. Israel's actions can be unequivocally categorized as a crime of aggression, as they fulfill the elements outlined in the article defining this crime. It is important to note that the ICC retains jurisdiction over the crime of aggression, even in cases involving non-member states like Israel, through UN Security Council referrals. In light of this, it is imperative for the ICC to take proactive action and prosecute Israel for this crime, serving as the last resort for global justice seekers.

The International Criminal Court (ICC) recently celebrated the 10th year anniversary of the signing of its founding treaty, the Rome Statute. The Court is up and running, yet some aspects of substantive law, which could not be agreed upon in Rome or thereafter, continue to pre-occupy many minds. This article concerns the pre-conditions to the exercise of jurisdiction of the ICC with regard to the crime of aggression. As is well known, the ICC has jurisdiction over the crime of aggression, yet it cannot exercise said jurisdiction until the crime of aggression has been defined and the conditions for the Court to exercise jurisdiction with respect to said crime have been set. It is this latter part that will be discussed thoroughly in the present article. This aspect of the crime of aggression is highly contentious because it encompasses both aspects of power politics involving the use of force and the UN Security Council, and the rule of law embodied in the ICC. It is at the crossroads of jus ad bellum and international criminal law, touching on both and in need of fitting into both legal frameworks. The Security Council has the competence to determine the existence of an act of aggression, the ICC has the competence to determine the existence of a crime of aggression, and there is widespread consensus that a crime of aggression must include an act of aggression. This article was written in order to further stimulate informed discussion among a wide range of stakeholders involved in the negotiations on the crime of aggression. At the same time, it aims to provide a compromise solution and explains why it is essential to find a concrete agreement which would find overall support at the upcoming Review Conference of the ICC.

The UN Security Council plays a prominent role in the functioning of the International Criminal Court (ICC). Although the ICC is a judicial institution distinct from the UN system, the Security Council, through provisions in the ICC’s governing treaty (the Rome Statute), can refer situations to the ICC Prosecutor for investigations or prosecutions. This power, contained in Article 13(b) of the Statute, enables the Council to transcend the nationality and territoriality pre-conditions necessary to trigger the Court’s jurisdiction. Through Article 16 the Security Council can prevent the initiation or continuation of investigations or prosecutions for a renewable period of 12 months following the adoption of a resolution under Chapter VII of the UN Charter. In exercising its referral and deferral powers, the Security Council must act under Chapter VII of the Charter, specifically Article 41, which provides that the Council may decide what measures not involving the use of force are to be employed to give effect to its decisions. Between June 2002 and April 2014, the Security Council expressly invoked its deferral powers on three occasions and referred two situations to the Prosecutor: Darfur (2005) and Libya (2011). In this paper I will consider the arguments that this relationship between the ICC and the Security Council has become politicized. I will review the drafting history of the Rome Statute to assess how this relationship was originally envisioned and whether the political undertones of such a relationship were apparent. I then will consider how the Council has applied its powers. Finally I will propose recommendations to redefine the relationship to improve the Court’s effectiveness, with particular emphasis on the Prosecutor’s discretionary powers under Article 53 of the Rome Statute. Ideally a relationship between the ICC and the UN Security Council would serve multiple interests. In drafting the Rome Statute, the International Law Commission (ILC) considered that since the UN Charter confers upon the Council primary responsibility for the maintenance of international peace and security, referral powers would provide the Council with a standby permanent tribunal through which it could adopt international criminal justice as a means

On February 26 2011, the UN Security Council unanimously adopted Resolution 1970 referring the situation concerning Libya to the International Criminal Court (ICC). Th is unprecedented support for and acknowledgment of the ICC did not come without a price: conditio sine qua non for Council members not party to the ICC was the inclusion of operative § 6 into the resolution, which exempts certain categories of nationals of non-parties from ICC jurisdiction. Th e same highly controversial exemption was included in the Security Council’s referral of the situation in Darfur to the ICC in 2005. Deviating from the Rome Statute’s jurisdiction regime such practice not just poses challenges to principles of international criminal justice but raises the question whether the Rome Statute is altered by the resolution containing the referral to the effect that the ICC is being bound to the exemptions contained in its exercise of jurisdiction. Addressing these issues, the present paper elaborates firstly on the jurisdictional exemption of § 6 and its effect on the ICC, followed by a discussion of resulting challenges to the principle of legality, the principle of universal jurisdiction for international crimes, the equality of individuals before the law and the principle of independence of the court.

The International Criminal Court (the ICC) is an independent institution and the world's first international permanent criminal court. The ICC was created via a multi-lateral treaty; the Rome Statute adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court 17 July, 1998 in Rome (see Appendix F.1 for the text of the Rome Statute). This is unlike the situation with the other international criminal courts so far discussed; the ICTR, ICTY and SCSL. The latter courts have a mandate which ends after a defined period of time. The ICTR, ICTY and SCSL were set up by the United Nations Security Council in response to the need to respond to specific situations that occurred in these jurisdictions and avoid the perpetrators of international crimes involved in those particular situations escaping justice. The Assembly of States (comprised of the State Parties to the Rome Statute) is the body that has oversight over the ICC and is responsible for any legislative decisions affecting the legal instruments guiding the operation of ICC. The States Parties to the Rome Statute have a legal obligation under that treaty to cooperate with the International Criminal Court. As of 14 November, 2008, there were 108 States Parties (States which had ratified the Rome Statute), but these did not include a number of major powers such as the United States, Russia, and China. There is also an agreement between the United Nations and the ICC which sets out institutional co-operative relations that allows, for instance, for exchange of information, etc. (i.e., the United Nations may have confidential documents relevant to a case being prosecuted by the ICC which it will share with the ICC subject to certain confidentiality provisions. This in order that the Prosecutor may use the information provided by the United Nations to develop further evidence). However, the ICC is not part of the United Nations but rather a completely independent institution. The ICC makes an annual report to the United Nations on its activities. However, the ICC remains a fully independent institution.

This study aims at discussingwhat factors behind the Gambian policy to leave the International Criminal Court. Moreover, it will explain what forms of discrimination carried out by the International Criminal Court as well as Yahya Jammeh's policies that have become controversial and criticized by the Gambia people and the international community.Gambia withdrawalfrom the International Criminal Court in Yahya Jammeh's Era. The International Criminal Court is a permanent international court established to investigate, prosecute and try individuals accused of committing the most serious crimes of concern to the international community as a whole, namely the crime of genocide, crimes against humanity, war crimes and the crime of aggression.To date, almost all of its full-fledged investigations have focused on Africa . Gambia demanded the International Criminal Court to prosecute the European Union for the death of African migrants on the European Coast and sued former British Prime Minister Tony Blair for his suspicion in the Iraq War. In addition, the double standards imposed by the International Criminal Court against the UN Security Council led to criticism from African countries, especially the Gambia. The case of Sudan (Darfur) and Libya are referred to by the UN Security Council while 3 of the 5 veto holders are not members of the International Criminal Court. On the other hand, the Yahya Jammeh Government has come under fire from the international and national Gambia for the violence committed against the people, especially against the opposition members, human right defenders, journalists and the LGBT communties. The European Union, the United Nations, Amnesty International and Human Rights Watch, demand the International Criminal Court to investigate Yahya Jammeh's Government.