International Criminal Court Prosecutions Research Articles

Legacies of Colonial Violence in Contemporary Transitional Justice: Memories of Mau Mau, the ‘Kapenguria Six’ and the ‘Ocampo Six’ in Kenya

ABSTRACT∞ This article assesses the enduring impact of colonial violence in responses to modern conflict by transitional justice mechanisms. It presents an example of how societies continue to be structured by racial and colonial injustice and how this influences contemporary transitional justice. This is done through an analysis of the popular memory of the Mau Mau insurgency from 1952 to 1960 in Kenya, the trial of the six Kenyan nationalists known as the ‘Kapenguria Six’ by the British colonial administration and the trials of six Kenyans alleged to be most responsible for orchestrating the 2007–2008 post-election violence in Kenya, known as the ‘Ocampo Six’ before the International Criminal Court (ICC). In the Kenyan context, the influence of memories of colonial violence enabled the promotion of political agendas and arguably coloured public debate surrounding the two Kenya cases before the ICC. Transitional justice mechanisms such as the ICC do not operate in an ahistorical vacuum and international criminal trials as a form of transitional justice may be contested where there is no genuine accountability, redress or reparations for victims of colonial crimes. However, the juxtaposition of colonial crimes and the ICC prosecutions in Kenya also raises important questions relating to accountability for historical crimes in former colonies, the temporal limitations of transitional justice mechanisms and their unequal application.

Exploring the International Criminal Court’s Deterrent Potential

Abstract Despite proclamations that the International Criminal Court (ICC) will deter the commission of international crimes, empirical support for such a proposition is mixed and there is much that is still unknown about the ICC’s deterrent potential. In this article, I add to knowledge on the ICC and deterrence with a case study of the ICC’s impact on government decision-making in Australia. Through a thematic analysis of Australian parliamentary records, I explore four instances where the potential for prosecution at the ICC was raised because of a government decision or policy, with a focus on the possibility of Australian politicians being prosecuted concerning Australia’s refugee policy. The fact that the risk of prosecution at the ICC was raised in parliamentary debates suggests that the ICC is capable of featuring in government decision-making and thus could have a deterrent effect. However, with respect to Australia’s refugee policy, the risk of prosecution at the ICC was outweighed by domestic political considerations, and hence this study found that the ICC had little to no deterrent effect on the government in that case. The perceived uncertainty of ICC prosecution was a key factor hindering the ICC’s potential for deterrence, and I suggest that this could have a flow-on effect, hindering the potential for extralegal sanctions to produce any deterrent effect and additionally undermining attempts at positive complementarity. For the ICC to realize its deterrent potential, the perceived certainty of prosecution must be increased.

The Withdrawal of African States from the ICC: Good, Bad or Irrelevant?

Since 2009, there has been a serious antiparathesis between the African Union (AU) and the International Criminal Court (ICC), which, according to the AU, has principally concerned unjustified ICC prosecutions against African dignitaries. This has led certain African ICC parties to announce their withdrawal from it, while the AU adopted the so-called ‘ICC Withdrawal Strategy’ in January 2017. This article analyses the background to and the content of the antiparathesis, it examines the consequences of the African parties’ withdrawal from the ICC as regards the large-scale impunity in Africa, and it proposes the creation of ICC regional circuit chambers as a possible solution to realign relations between the AU and the ICC. Specifically, the proposal suggests the creation of several ICC regional circuit chambers, each being responsible for the alleged crimes committed in the territory of ICC parties belonging to a specific continent. Pertinent solutions to the institutional and practical issues arising from this proposal are offered.

Myanmar's Citizenship Law as State Crime: A Case for the International Criminal Court

This article argues that Myanmar's authorities subject the Rohingya to human rights violations that can be accurately described as the crime of apartheid. Myanmar's discriminatory application of its citizenship laws and processes is central to this crime, yet while Myanmar is not a signatory to the Rome Statute of the International Criminal Court, the court's jurisdiction remains limited. However, Myanmar's government has brought this crime to the territory of International Criminal Court (ICC) member state Bangladesh. Because Myanmar's government insists upon Rohingya participation in discriminatory citizenship processes as a precondition of refugee repatriation to Myanmar, this presents the ICC with an opportunity to assert its jurisdiction. While current ICC investigation focusses mostly on alleged crimes committed by the Myanmar military, crimes associated with Myanmar's citizenship processes would likely be the responsibility of Myanmar's civilian government, including State Counsellor Aung San Suu Kyi, making Myanmar's civilian political leaders liable for the first time to ICC prosecution.

Lessons from the Al-Bashir Debacle: Four Issues for ICJ Clarification

At its thirtieth ordinary session, the AU decided that the United Nations General Assembly (UNGA) be asked to seek an advisory opinion from the International Court of Justice (ICJ) on the question of immunity of head of states and other senior officials, in relation to articles 27 and 98 of the Rome Statute of the International Criminal Court 1998 (Rome Statute) and states parties’ obligations under international law. The issue of immunity in the context of state cooperation obligations under the International Criminal Court (ICC) legal regime lies at the heart of the Al-Bashir case, and is a contentious issue that has contributed to the deteriorating relationship between the ICC and the AU. Against the backdrop of the Al- Bashir case and the key issues arising in the case warranting clarification that we identify in this article − the meaning of article 98(1) in the context of head of state immunity, solving potential conflicting treaty obligations to (not) cooperate, waiver of head of state immunity by the UNSC, and hierarchy of sources of international law on the relevant issues − we contend that seeking clarification from the ICJ is indeed a more advantageous and appropriate way forward for African states to pursue than the proposed collective withdrawal from the ICC. To this effect, we also argue for the unsuitability of collective withdrawal as a solution to the AU/African states’ concerns around ICC prosecution.

Interpretation and Application of Article 98 of the Rome Statute

Abstract Many high officials accused for crimes falling under the ICC (International Criminal Court) Statute, like the leader of Sudan Omar al-Bashir, have defended themselves against ICC prosecution using their State, diplomatic or Head of State immunity and there so invoking Art. 98 of the ICC Statute. This paper is to clarify all the incorrect claims, which abusively use Art. 98, to justify the objection of ICC prosecution in cases where the defendant has state, Head of State or diplomatic immunity due to his official capabilities. The paper conclusions will deal with the proper interpretation and application of this article and the reasoning of why Head of States and other high officials cannot be defended from the ICC prosecution using their immunity as an argument.

The Relationship Between the ICC and the UN Security Council

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. …

The Effect of Security Council Resolutions and Domestic Proceedings on State Obligations to Cooperate with the ICC

The article considers whether the obligations of states in respect of which there is a United Nations Security Council referral to the International Criminal Court (ICC) are the same as the cooperation obligations of states parties to the Statute. It is argued that despite the lack of clarity in the resolutions referring the situation in Darfur and in Libya to the ICC, the better view is that the obligation imposed on Sudan and Libya to ‘cooperate fully’ with the ICC should be regarded as an obligation to cooperate in accordance with the provisions of the ICC Statute. This means that those states are entitled to benefit from those limited provisions of the ICC Statute which permit a refusal to cooperate with the Court or permit the state to postpone the execution of a request by the Court for assistance. The article also considers the interaction between the obligations of states to cooperate with the ICC and domestic proceedings against those sought for ICC prosecution. It considers the extent to which the obligation of cooperation may be suspended by an admissibility challenge and addresses whether the permission to suspend the obligation of cooperation may extend to a suspension of the obligation to surrender an accused person to the ICC.

Assessing the African Union Concerns about Article 16 of the Rome Statute of the International Criminal Court

Abstract This article assesses the African Union’s (AU) concerns about Article 16 of the Rome Statute of the International Criminal Court (ICC). It seeks to articulate a clearer picture of the law and politics of deferrals within the context of the AU’s repeated calls to the United Nations Security Council (UNSC, or the Council) to invoke Article 16 to suspend the processes initiated by the ICC against President Omar Al Bashir of Sudan. The Council’s failure to accede to the AU request led African States to formally withhold cooperation from the ICC in respect to the arrest and surrender of the Sudanese leader. Given the AU’s continued concerns, and the current impasse, fundamental questions have arisen about the Council’s authority to exercise, or not exercise, its deferral power. This culminated into a November 2009 African proposal for an amendment to the Rome Statute to empower the UN General Assembly to act should the UNSC fail to act on a deferral request after six months. Although ICC States Parties have so far shown limited public support for the AU’s proposed amendment to the deferral provision, this article examines its merits because a failure to engage the “Article 16 problem” could impact international accountability efforts in the Sudan, and further damage the ICC’s credibility in Africa. This unresolved issue also has wider significance given that the matters underlying the tension ‐ how ICC prosecutions may be reconciled with peacemaking initiatives and the role and power of the Council in ICC business ‐ will likely arise in future situations from around the world.

TheKatangaComplementarity Decisions: Sound Law but Flawed Policy

AbstractOn 25 September 2009, the Appeals Chamber of the International Criminal Court (ICC) issued a seminal decision on the subject of complementarity in the caseProsecutorv.Germain Katanga. The outcome of the Chamber's decision is that, even if a state has initiated an investigation or prosecution against an individual, the ICC may prosecute that individual for the same crimes or even a more selective range of crimes, so long as the state is willing to close the ongoing investigation or prosecution at the request of the ICC Prosecutor. While this decision is defensible under the language of the Rome Statute, this article concludes that, absent vigilance on the part of the ICC's Office of the Prosecutor, the decision could produce consequences inconsistent with the principle that the ICC is intended to act as a court of last resort. These potential consequences, in turn, suggest that the prosecution's policy of ‘positive complementarity’ – that is, encouraging genuine national proceedings whenever possible – should be at the core of its case selection strategy. At the same time, in those instances when the ICC prosecution determines that, despite activity by a national system with respect to a particular case, it is appropriate for the ICC to take over the case, the prosecution should clearly and publicly explain the factors that led to its decision.

Crimes Against Humanity in Colombia: The International Criminal Court’s Jurisdiction Over the May 2003 Attack on the Betoyes Guahibo Indigenous Reserve and Colombian Accountability

The Colombian military and the United Self-Defense Forces of Colombia (AUC) have committed systematic attacks against the Colombian people that violate international law. One such heinous incident took place in May 2003 at the Betoyes Guahibo indigenous reserve in Colombia. Unlike other acts of terror, the attack at the Reserve is well documented. Because of this, the attack on the Reserve is an excellent case for International Criminal Court (ICC) prosecution. This article exposes acts of cruelty and makes a persuasive moral case for ICC prosecution. The ICC has jurisdiction over the attack on the Betoyes people by the AUC and Colombian military. The article further discusses the potential legal exposure of the Colombian government, individual Colombians and US individuals through its military support and training of the Colombian military.