ICC Prosecutor Research Articles

National Security Evidence: Enhancing Fairness in View of the Non-Disclosure Regime of the Rome Statute

The Rome Statute of the International Criminal Court completely divests the Court of the power to compel a state to disclose evidence in its possession if the state opposes such disclosure on grounds of national security. If a state refuses to disclose information essential to the adjudication of a case on national security grounds, the ICC may settle fair trial concerns either by drawing factual inferences favourable to the defendant or by staying the proceedings. I argue, however, that in practice such judicial powers do not provide a sufficient guarantee of a fair trial. I propose to allay fair trial concerns arising from the refusal of states to allow the ICC access to evidence in their possession by introducing a reform in the exercise of the ICC's prosecutorial discretion. According to my proposal, the requirement of a fair trial, which entails the disclosure of material essential for the defence, would be incorporated into the criteria that guide the ICC Prosecutor in the selection of cases for prosecution. Although the present article focuses on the issue of national security evidence, the reach of the proposed reform extends to all cases of state refusal to allow the ICC access to evidence, regardless of the grounds for refusal.

When Gravity Fails: Israeli Settlements and Admissibility at the ICC

In the wake of the UN General Assembly's recent recognition of Palestinian statehood, the Palestinian government has made clear its intention to challenge in the International Criminal Court (ICC or the Court) the legality of Israeli settlements. This article explores jurisdictional hurdles for such a case. To focus on the jurisdictional issues, the article assumes for the sake of argument the validity of the merits of the legal claims against the settlements.The ICC only takes situations of particular ‘gravity’. Yet settlements are not a ‘grave breach’ under the Rome Statute. No modern international criminal tribunal has ever prosecuted crimes that do not involve systematic violence and physical coercion. The ICC's gravity measure involves the number of persons killed; for settlements it would be zero. Indeed, the ICC Prosecutor triages situations by the numbers of victims; settlements do not appear to have direct individual victims. Finally, the ICC would at most have jurisdiction over settlement activity only from the date of Palestine's acceptance of jurisdiction. Settlement activity in this time frame would not immediately cross the ICC's gravity threshold.

Regina Paulose, 'Prosecuting Gender-Based Crimes: An Interview with Dr. Hilmi M. Zawati'

In this interview, Dr. Zawati explains that the lack of accurate description of gender-based crimes in the statutory laws of the international criminal tribunals and courts infringes the principle of “fair labelling,” leads to inconsistent verdicts and punishments, and constitutes a barrier to justice. As a result, sexual violence in wartime settings should be prosecuted separately as crimes in themselves, not as a subsection of war crimes or crimes against humanity. He added that the international community should make reform in the international criminal justice system, particularly amending the Rome Statute. Besides the required technical description of gender-based crimes as crimes against humanity and war crimes incorporated in articles 7 and 8 of the Rome Statute, amendments should also be made to Article 13(b) to transfer the authority of referring such crimes to the prosecutor of the ICC from the UN Security Council to the UN Human Rights Council. In the past three years, the Security Council has utterly failed to pass a resolution to stop war and to refer the situation in Syria to the prosecutor of the ICC for the lack of political will on the part of some key players in the Council. Russia and China have vetoed three UN Security Council resolutions on Syria, preventing several attempts by the UN Security Council to take a decision that might have put an end to the war crimes and crimes against humanity perpetrated against Syrian civilians. On the other hand, the ICC prosecutor should be granted more proprio motu powers to investigate gender-based crimes based on information received from individuals, groups, States, intergovernmental or nongovernmental organizations.

The Prosecutor's Obligation to Investigate Incriminating and Exonerating Circumstances Equally: Illusion or Reality?

AbstractThis article examines whether the ICC Prosecutor has complied with its statutory obligation under Article 54(1)(a) of the Rome Statute to investigate incriminating and exonerating circumstances equally. By way of a number of striking examples of deficient investigations, it demonstrates that the ICC Prosecutor has so far failed to comply with this obligation. As a matter of competence and diligence, the Prosecutor is expected to conduct thorough investigations: this requires a critical assessment of each case and the supporting evidential material. An examination of the pending ICC cases shows that the Prosecutor has not met this expectation. The investigations conducted in all of these cases have been incomplete as far as both incriminating and exonerating circumstances are concerned. This article, however, also suggests that the defence is in a better position to search for exonerating evidence than the Prosecutor, and questions whether Article 54(1)(a) can be applied effectively under any conditions.

The Limitations of International Law Expertise War Amongst Peacemakers: The Juba Peace Process as Battleground for International Lawyer's Biases

This paper reflects on the limitations of international law expertise, using examples from the Juba peace process on the civil war in Uganda. In peace negotiations (like in all situations), the international law expert must acknowledge the limitations of international law. International law is one-dimensional, and cannot take all relevant factors into account. Further, in any given situation, there will be some regimes and some rules of international law that are more effective than others, because they have powerful support or efficient mechanisms. This means that some norms, some claims and the interests of some stakeholders will be privileged. Many of the controversies associated with international interventions based on international law – like the ICC prosecutions in Uganda – have in fact been caused by too much emphasis on, for instance, international criminal justice and civil rights, and too little emphasis on reparations, economic and social rights and collective rights. Still, even if international law could be better used, there are limits to what can be accomplished even with creative international law expertise. There is a structural bias in international law, which privileges the state. International law, and its institutions, can do too little to refer matters from the government to other legitimate stakeholders, often leaving us with a choice between the (distant) supranational level and the (corrupt) national level. While international law does determine an international minimum standard for the state, it is still much better at empowering the government than at empowering people.

Reflections on the ICC Prosecutor’s Recent “Selection Decisions”

Taking the starting point in an assessment of three major “selection decisions” made by the ICC Prosecutor in the situation in Mali, this article provides for a discussion of the key challenges relating to explaining how the ICC Prosecutor undertakes its “selection decisions”. First, the article explores the Prosecutor’s justifications for acting positively on Mali’s self-referral to the ICC. Second, it examines how the Prosecutor justifies that some crimes, but not others, will be subject to further investigation. Third, it provides for a discussion of how the Prosecutor selects suspects for further investigation. These three “selection decisions” are examined in light of the governing law and policies as well as the Prosecutor’s earlier practice and the scholarly debate. Some of the broader legitimacy challenges facing the Court are also discussed. In contrast to what the Prosecutor suggests, the article concludes that the Office of the Prosecutor does appear to treat self-referrals as a special category of cases where different standards apply. The article also concludes that it is doubtful that the gravity concept provides a clear framework for making “selection decisions”.

The ICC Prosecutor and Positive Complementarity: Strengthening the Rule of Law?

The purpose of this study is to examine the practice of the Prosecutor of the International Criminal Court with regard to his/her policy of positive complementarity. This policy aims at encouraging domestic jurisdictions to investigate and prosecute perpetrators of core international crimes. In order to achieve this goal, the Prosecutor can act at various stages of the proceedings. First at the preliminary examination phase, where he/she will determine if conditions of admissibility are met, and secondly at the investigation and prosecution phases of the proceedings. This study shows that the ability of the Prosecutor to pursue such a policy is real, but limited, as his/her core mandate, is to bring perpetrators of international crimes before the International Criminal Court. Consequently, the implementation of the policy of positive complementarity must be envisioned in collaboration with other actors working on Rule of Law Programs. In this respect, the Prosecutor must engage in cooperation with international organisations and civil society actors.

The Rise of the African Union Opposition to the International Criminal Court’s Investigations and Prosecutions of African Leaders

On 9 January 2012 the African Union (AU) stated that it ‘shall oppose any ill-considered, self-serving decisions of the ICC [International Criminal Court] as well as any pretensions or double standards that become evident from the investigations, prosecutions and decisions by the ICC relating to situations in Africa’. These relate to the United Nations [UN] Security Council referrals (in Darfur/Sudan and Libya) and the Prosecutor’s investigations proprio motu (in Kenya). This article considers the rise of the AU opposition to the ICC investigations and prosecutions in Africa directed against current African State leaders focusing on three issues. First, whether customary international law creates an exception to Head of State immunity when international courts, such as the ICC, seek a Head of State’s arrest for the commission of international crimes. Second, whether the International Court of Justice can decide on immunity of State officials sought by the ICC. Third, whether the AU should empower the African Court of Justice and Human Rights with the jurisdiction to prosecute individuals for international crimes committed in Africa.

Ratification Patterns and the International Criminal Court1

Chapman, Terrence L. and Stephen Chaudoin (2012) Ratification Patterns and the International Criminal Court. International Studies Quarterly, doi: 10.1111/isqu.12005 © 2012 International Studies Association What types of countries have ratified the Rome Statute establishing the International Criminal Court? Because the court relies on state cooperation, it is a good example of a regime facing a “participation problem.” In order to be effective, the regime requires active members, but states that fear regime effectiveness will therefore find it potentially costly to join. We analyze the extent to which this problem plagues the ICC. We find that countries for whom compliance is likely to be easiest—democracies with little internal violence—are the most likely countries to join the ICC. On the other hand, countries with the most to fear from ICC prosecution, nondemocracies with weak legal systems and a history of domestic political violence, tend to avoid ratification. We contrast our findings with those of a recent article by Simmons and Danner (2010), arguing that ratification patterns show evidence of credible commitments. Our analysis across a breadth of evidence, both descriptive and multivariate, suggests caution toward arguments about the impact of the ICC on global practices and provides support for the notion that states strategically select themselves into supranational judicial agreements.

The International Criminal Court in Kenya: Three Defining Features of a Contested Accountability Process and Their Implications for the Future of International Justice

This Article sets out to explore three defining features of Kenya’s contested accountability process, which may have ramifications for our understanding – and possibly the future direction – of international criminal justice. First, the Kenyan case presents the first example of the Prosecutor initiating an investigation using the proprio motu powers. This Article investigates the background to the use of proprio motu powers in the Kenyan situation and discusses whether the Prosecutor’s decision to initiate an investigation of the Kenyan situation should be seen to reflect a new orientation for the Office. Second, the Kenyan situation presents the first example of the ICC intervening in a situation where the number of casualties was relatively limited. Taking the starting point in an assessment of the Prosecutor’s justifications for opening an investigation into Kenya’s post-election violence, this Article discusses the importance of selecting the Kenyan situation for investigation and what consequences the case might have for the future selection of situations. Third, the Kenyan situation presents the first example of the ICC Prosecutor targeting both sides to a conflict, including government officials of a State Party. This raises important questions concerning the value of ‘even-handed justice’, including the potential of international justice to prevent future crimes.

Freezing Sovereign Wealth Funds Assets Abroad Under U.N. Security Council's Resolutions: The Case of the Implementation in Italy of Assets Freezes Against Qadhafi's Libya

The Security Council’s reaction to breaches of human rights in Qadhafi’s Libya through Resolutions 1970 and 1973 in February - March 2011 included the adoption of targeted economic sanctions against president Qadhafi, members of his family, collaborators and Libyan state-owned entities - central bank, state-owned companies and sovereign wealth funds (SWF) - controlled by such individuals in power in Libya. The sanctions consist of an arms embargo, travel bans and the freezing of financial assets and economic resources. In part, such sanctions are still on-going. The article examines the peculiar aspects of the implementation of the assets freeze in Italy, in conformity with the implementation regulations of the European Union, in view of the fact that Libyan SWF owned ( and still own) substantial equity in major Italian companies. Issues relating to the de-freezing of those assets and their transfer to the new Libyan governmental authorities is also being discussed, considering furthermore the interference of the releasing of those assets with the implementation in Italy of the seizure of the same ordered by the ICC Prosecutor to ensure compensation of the victims.

Reconsidering the Meaning and Actuality of the Legitimacy of the International Criminal Court

The Statute of the International Criminal Court (the ICC) was entered into force on 1 July 2002. After its ten years of the exercises of the jurisdiction, Academics have just begun to discuss its legitimacy and examine its efficiency and effectiveness. Prosecutorial discretion exercised by the ICC prosecutor is also measured in terms of legitimacy. Nonetheless, the legitimacy of this international organisation is far from self-evident. This article tries to sort out the existing arguments of the legitimacy of the ICC and analyses its current status by using the assessment of legitimacy. Finally the article deals with the question how to enhance the legitimacy of the ICC.

ICC Prosecutions and Violence Against Civilians in Armed Conflict: A Preliminary Time-Series Cross-Section Analysis

ICC Prosecutions and Violence Against Civilians in Armed Conflict: A Preliminary Time-Series Cross-Section Analysis

Another Stormy Year for the International Criminal Court and its Work in Africa

In our contribution to these pages last year we suggested 2010 held promise of a rapprochement between the International Criminal Court (ICC or the Court) and African states. The source of our optimism was the ICC’s inaugural Review Conference, taking place in June on the shores of Lake Victoria in Kampala, Uganda. It presented an opportunity for states to “take stock” of the Court’s work and for African states raise their concerns regarding the Court’s structure and operation. There was also the small matter of the crime of aggression, the definition and jurisdictional aspects of which could not be agreed upon in Rome. On this issue we were less optimistic, suggesting that an agreement on aggression in Kampala was “improbable”. We were wrong on both counts. To be sure, 2010 was about Kampala, but not in the way that many had hoped. Against expectations, the definition of aggression, and the jurisdictional regime governing it, was agreed on (although it will not become operational until 2017, at least). But that positive development insofar as Africa-ICC relations is concerned was soon overshadowed by a very different “Kampala moment”, that would cast a long shadow on the year to come: a second decision of the African Union (AU) urging non-cooperation in the arrest of Sudanese President al-Bashir (al-Bashir). In the result, the trajectory of the Court and Africa remains unchanged. What was novel in the year past was Kenya, previously a model ICC State Party, coming to the fore as the battleground for the ongoing “struggle for the soul of international law”. Kenya’s inglorious “fall from grace” is the result of two self-agitating but distinct developments.The first is the ongoing controversy over the ICC Arrest Warrant for al-Bashir and the AU’s decision that its member states shall not cooperate in the execution thereof. It is a decision that sits both legally and politically uncomfortably with Kenya’s obligations under the Rome Statute and risks threatening its relationship with the Court. The decision of Kenya to invite al-Bashir to the launch of the country’s new Constitution in August was the low water-mark of this relationship, resulting in the first ever “decision” of the Court on non-cooperation in its history, against Kenya. This is a remarkable step back for a country that remains one of only three of the 31 African ICC member states to have adopted domestic legislation to implement (and expand) its obligations under the Rome Statute. The second, and potentially more ominous development, is the backlash in Kenya against the ICC’s investigation into the violence that took place in the aftermath of the December 2007 elections in Kenya that left over 1000 people dead, caused around 400,000 to flee their homes, and brought Kenya to the brink of civil war. The ignominy of being under investigation, and the profile of the suspects named by the ICC Prosecutor in December 2010, has drawn the fire of many (including senior, albeit partisan, government members) for the investigation domestically, concluding 2010 with the motion by Kenyan Parliamentarians on 21 December 2010 to walk Kenya out of the Rome Statute. Worse still, political acumen has turned this domestic discontent into a regional African position in opposition to the ICC’s investigation and fuelled a more general anti-ICC sentiment within Africa, further isolating those voices of support for the Court on the continent.In this paper we will consider the legal aspects of the events of 2010 that have brought Kenya (and Africa’s) relationship with the ICC to this point. We will then go on to consider the year to come and (tentatively) offer a few thoughts on how these difficulties might be addressed.

Kenya's Credible Commitment to Keep its Date with the ICC

Louis Moren O'Campo, the ICC Prosecutor has named six Kenyans suspected of committing crimes against humanity. He seeks to have an ICC Pre-Trial Chamber confirm these planned indictments early in 2011. Subsequently, the Kenyan Parliament voted to have Kenya withdraw from the Rome Statute. This vote will not affect the planned indictments since a notification for a country's withdrawal from the Rome Statute would have to have been in place much earlier to stop the investigation and possible indictments. In any event, O'Campo will have no easy task to prove that crimes against humanity were committed in Kenya. Unlike with Kenyan Parliamentarians, the Kenyan public is overwhelmingly in favor of O’Campo proceeding with the prosecutions. At the Hague, these high-ranking Kenyans will have no control over the prosecutor’s case in the same way that Kenya by repeatedly frustrating the establishment of a local tribunal to try post election violence offenders. The moment for accountability for those most responsible for the violence in the highest echelons of the government is best guaranteed at the Hague. This short article argues that there is perhaps no better example exemplifying one of the most credible theories of compliance with international law than the Kenyan government’s commitment to cooperate with the ICC, (that is notwithstanding the aforesaid Parliamentary vote), since credible domestic prosecutions are a near impossibility. In short, weak domestic institutions are anchored or backed up by international institutions as an alternative. The only other possible explanation is that when Kenya ratified the Statute of the ICC, it did not believe that its own leading politicians would land before the ICC. Yet, the evolving scenario so far suggests that the intended prosecutions not only make up for the inability of Kenya to have its own credible ones, but will also likely help Kenya avoid future violence and to consolidate a durable peace. Clearly, there are outcomes that cannot easily be achieved in the absence of treaties and it seems Kenya’s ratification of the ICC statute, Parliament's subsequent enactment of implementing legislation and the incorporation of international law as a source of Kenyan law in the widely ratified 2010 Constitution, clearly foreswore Kenya to resort to the ICC in the event of the kind of post-election violence following the 2007 General Election.

Doing Justice to the Political: The International Criminal Court in Uganda and Sudan

International criminal justice has become a weapon in political struggles in Uganda and Sudan. In this light, this article discusses the political meaning of the International Criminal Court's judicial interventions. It argues that the ICC, presented by its advocates as a legal bastion immune from politics, is inherently political by making a distinction between the friends and enemies of the international community which it purports to represent. Using original empirical data, the article demonstrates how in both Uganda and Sudan warring parties have used the ICC's intervention to brand opponents as hostis humani generis, or enemies of mankind, and to present themselves as friends of the ICC, and thus friends of the international community. The ICC Prosecutor has at times encouraged this friend�enemy dichotomy. These observations do not result in a denunciation of the Court as a �political institution�. On the contrary: they underline that a sound normative evaluation of the Court's activities can be made only when its political dimensions are acknowledged and understood. To show that justice has its practical and ideological limits is not to slight it. � The entire aim is rather to account for the difficulties which the morality of justice faces in a morally pluralistic world and to help it recognize its real place in it � not above the political world but in its very midst. J. Shklar, Legalism: Law, Morals and Political Trials (1986), at 122�123.

KENYA: ICC Prosecutor’s Visit

Africa Research Bulletin: Political, Social and Cultural SeriesVolume 47, Issue 5 p. 18408B-18408C KENYA: ICC Prosecutor’s Visit First published: 30 June 2010 https://doi.org/10.1111/j.1467-825X.2010.03278.xRead the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinked InRedditWechat No abstract is available for this article. Volume47, Issue5June 2010Pages 18408B-18408C RelatedInformation

In Defence of Functional Interpretation of Article 12(3) of the Rome Statute: A Response to Yael Ronen

In an article published in the Journal, Yaël Ronen considered the 21 January 2009 declaration by the Palestinian National Authority (PNA) recognizing the International Criminal Court’s (ICC) jurisdiction over the events which took place in Gaza in 2008–2009, to persuasively argue that the ICC Prosecutor would be ill-advised to assume jurisdiction over the alleged crimes committed by Israel in Gaza by virtue of the PNA’s lack of statehood. In this brief response, the author advocates a more functional approach to Article 12(3) of the ICC Statute than that taken by Dr Ronen, contending that at the least it allows ‘quasi-states’ with international legal personality to seek the ICC’s delegation-based jurisdiction over criminal matters within a territory over which they have recognized authority. At the same time, however, the ability of quasi-states such as the PNA, to delegate authority to an international organization may be fatally circumscribed by instruments that facilitated their creation. The Oslo Accords, which created the PNA, denied it jurisdiction over Israelis and seriously restricted its ability to conduct foreign relations. Acceptance of jurisdiction by delegation must respect these inherent limitations, both conceptually and as a practical matter. Thus the author reaches a similar, although not identical, conclusion to that reached by Dr Ronen, albeit based on a very different reading of Article 12(3) of the ICC Statute.

Mayhem in Darfur: The Accountability, Peace and Immunity Debate

No one quite tells in precise terms what ‘justice’ is all about, that is why it is so useful a term. Today, the word is almost constantly on everyone’s tongue and might signify almost anything. It is used by all, ranging from the most repressive and atrocious regimes responsible for heinous international crimes, to victims of such egregious human rights abuses. It is a term with a ‘penumbra of uncertainties.’ Borrowing the words of Plato and other philosophers, Kirk tells us the classical definition of justice captured in one phrase, suum cuique, which means to each his own. Despite the recurring controversy over the meaning and normative content of the notion of justice, modern human rights enterprise posits the idea as articulating at least four obligations in the context of atrocity crimes, i.e., the duty to prosecute, disclosure of the truth, the right of victims to reparation and guarantees of non-repetition. The article examines the utility of prosecutorial justice as a comprehensive tool for combating gross violations of human rights and serious breaches of humanitarian law without ignoring other interrelated imperatives of justice. It seeks to posit the debate between peace and justice and tries to make a critical analysis of whether the concern for justice truly jeopardizes the effort for peace in the particular context of Darfur. It professes to look into the prospect of prosecution of those accused of perpetrating the most serious crimes of concern and examines the significance of ICC prosecution to the people of Darfur. By analyzing relevant international precedents and new developments in international criminal law, this article examines the state of the law relating to a sitting head of state immunity. It assesses whether the ICC indictment of President Omar Hassan Al-Bashir is politically motivated or a legally justified action against impunity.

ICC Jurisdiction over Acts Committed in the Gaza Strip: Article 12(3) of the ICC Statute and Non-state Entities

On 21 January the Palestinian Minister of Justice lodged with the ICC Registrar a ‘Declaration Recognizing the Jurisdiction of the International Criminal Court’ over acts committed on the territory of Palestine since 2002. This article concerns three issues regarding the admissibility of this declaration, all of which are linked to the question of statehood. It first argues that the ICC Prosecutor may not assume the existence of a Palestinian state because the Palestinians themselves do not make a claim to that effect. It then examines whether under a purposive interpretation of Article 12(3), declarations should also be admitted from quasi-states. Finally, it examines the consequences of the ICC Prosecutor engaging in questions concerning statehood and recognition.