International Criminal Court Office Research Articles

After the ICC Office of the Prosecutor\u2019s 2016 Policy Paper on Case Selection and Prioritisation: Towards an International Crime of Ecocide?

The 2016 Office of the Prosecutor of the International Criminal Court (ICC) policy paper on case selection and prioritization is a significant development in that it highlights the possible role of the ICC in prosecuting environmental damage, illegal natural resource exploitation and land grabbing. For obvious reasons, however, the ICC Office of the Prosecutor policy paper could not expand the court’s current jurisdiction over ecocide which is dependent on a formal amendment to the ICC Statute and the policy paper is only an internal policy document. But more fundamentally it has been predicted that the 2016 ICC Office of the Prosecutor may signify the revitalization of the debate on how an international crime of ecocide could be conceptualised under international law and ultimately whether the ICC should have a broader jurisdiction over ecocide. This article aims to critically evaluate how a crime of ecocide could be conceptualised under international law, as well as to assess the limitations of conceptualising ecocide based on the narrow definition of the existing crimes under the ICC Statute. Moreover, this article aims to critically evaluate developments in past three and half years following the adoption 2016 OTP Policy Paper, and notes that the practice of the OTP in dealing with recent national communications and the ICC case law itself to date have not signified a considerable shift in interpreting the law in cases involving environmental damage, illegal natural resources exploitation and land grabbing. Therefore, they have done little so far to clarify the scope of the court’s existing jurisdiction over “ecocide”.

Briefly Noted

On September 2, 2019, the International Criminal Court (ICC) Appeals Chamber delivered its judgment in the Situation on the Registered Vessels of the Union of Comoros, the Hellenic Republic and the Kingdom of Cambodia case, Case No. ICC-01/13 OA 2, and rejected the appeal filed by the ICC Office of the Prosecutor (OTP) of the ICC Pre-Trial Chamber I's decision on the November 15, 2018 “Application for Judicial Review by the Government of the Union of Comoros.” As noted in the ICC's press release, “a referral was received by the Office of the Prosecutor from the authorities of the Union of the Comoros, a State Party to the Rome Statute, in relation to an attack on 31 May 2010 by the Israeli Defence Forces on the Humanitarian Aid Flotilla bound for the Gaza strip. On 6 November 2014, the Prosecutor issued her decision not to investigate the attack. On 16 July 2015, Pre-Trial Chamber I, by majority, requested the Prosecutor to reconsider the 6 November 2014 decision not to investigate the attack. Subsequently, on 29 November 2017 the Prosecutor filed her decision, which she considered to be final, reaffirming her previous decision not to investigate the attack. On 15 November 2018, Pre-Trial Chamber I directed the Prosecutor to reconsider her decision of 6 November 2014 not to investigate the attack in light of the specific directions of the Pre-Trial Chamber's 16 July 2015 decision. The Prosecutor then appealed this decision.” The Appeals Chamber confirmed the Pre-Trial Chamber's decision, directing that the OTP must reconsider its decision regarding the Comoros referral by December 2, 2019. The Appeals Chamber found that the Pre-Trial Chamber “did not err in reviewing whether a decision of a Prosecutor that she considered to be ‘final’ subsequently to a first request for reconsideration does actually amount … to a proper ‘final decision.’” The Appeals Chamber did maintain that the “ultimate decision” regarding whether or not to initiate an investigation remains with the OTP.

The Policy on Children of the ICC Office of the Prosecutor: Toward greater accountability for crimes against and affecting children

AbstractThe Policy on Children published by the International Criminal Court (ICC) Office of the Prosecutor in 2016 represents a significant step toward accountability for harms to children in armed conflict and similar situations of extreme violence. This article describes the process that led to the Policy and outlines the Policy's contents. It then surveys relevant ICC practice and related developments, concluding that despite some salutary efforts, much remains to be done to recognize, prevent and punish the spectrum of conflicted-related crimes against or affecting children.

‘Interests of justice’: Defining the scope of Prosecutorial discretion in Article 53(1)(c) and (2)(c) of the Rome Statute of the International Criminal Court

AbstractThe International Criminal Court (ICC) was established with the aim of prosecuting individuals for the gravest crimes of concern to the international community. Yet some provisions of its Statute (the Rome Statute) recognize the need for temporarily setting aside criminal investigations or prosecutions in favour of different considerations. Two of these provisions are Article 53(1)(c) and (2)(c) of the Statute. They allow the Prosecutor of the Court to use his or her discretion in deciding not to initiate an investigation or a prosecution in the ‘interests of justice’. Nonetheless, the ambiguity of this phrase, coupled with an absent definition, have given rise to a polarized debate about its meaning and the Prosecutor's ensuing margin of discretion: some consider matters of peace and security and alternative justice mechanisms as possible ‘interests of justice’, while others exclude them. Among those adopting the latter view is the ICC's Office of the Prosecutor (OTP), as can be inferred from a 2007 Policy Paper on the Interests of Justice and a 2013 Policy Paper on Preliminary Examinations, which continue to be upheld by the Office. Against this backdrop and amid new developments at the ICC which call into question the OTP's position, the purpose of this article is to develop a comprehensive interpretation of Article 53(1)(c) and (2)(c) of the Rome Statute, using all the interpretative tools provided by Articles 31 to 33 of the Vienna Convention on the Law of Treaties.

UCLAForum.com – ICT and ICC OTP case study

PurposeUCLAForum.com is a co‐operative venture between the UCLA Sanela Diana Jenkins Human Rights Project and the International Criminal Court Office of the Prosecutor (ICC OTP). The main purpose of the forum is to create an opportunity for the greater legal community to engage in a dialogue covering topics of special interest to the Prosecutor. The purpose of this paper is to document the process of developing this unique resource in the form of a case study.Design/methodology/approachThis study provides the history of the project, web‐use statistics, structural details that shed light on the use of information communication technology (ICT) within a complex partnership of UCLA School of Law and ICC OTP, and provides a summary of the outcome to date.FindingsThere have been six debates to date. Individuals from 190 countries speaking 90 languages have visited the forum and almost 280,000 words have been written on the Forum since its launch in September 2010.Social implicationsUCLAForum.com is the only place on the internet where an average online citizen has access to the Prosecutor of the International Criminal Court by simply posting his or her opinion on the Forum.Originality/valueUCLAForum.com is a unique use of ICT to explore issues of interest to the Prosecutor of the ICC. It provides a place where these issues get highlighted. It presents the relevant legal landscape with the framing of the issue and the invited experts, in addition to the public debate. The Forum provides visibility to OTP policy decisions. It gives voice to the public and creates a community of interested parties around each issue. And it vets each issue in a defined time span, making it a useful resource prior to its ripening before the ICC.

NGO Monitor Submission to the International Criminal Court Office of the Prosecutor Regarding the 'Situation in Palestine'

This paper argues that the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) should immediately reject the attempt of the Palestinian Authority to accede to the jurisdiction of the court. On January 21, 2009, Ali Khashan, Minister of Justice for the “Palestinian National Authority” (PNA) submitted a declaration to the OTP purporting to accept the ICC’s jurisdiction under Article 12(3) of the Rome Statute. Article 12(3) referrals, however, can only be effected by States and the PNA has not yet achieved the status of statehood nor claims to be a state. Nevertheless, supporters of the PNA declaration have argued that the court should take an “expansive approach” in “interpreting the meaning of ‘state’” solely for purposes of the Rome Statute. This position, known as the “teleological approach,” must be rejected because it is nothing more than a thinly veiled attempt to transform the ICC into a court of universal jurisdiction – an approach that was expressly rejected by the drafters of the Statute. Supporters of the “teleological” approach also ask the court to ignore the plain language of the Statute in order to prevent Palestinians from being denied “recourse to justice”. Despite this allegation, there is no “lack of recourse” or a “zone of impunity” in this case. The Rome Statute, the UN Charter, and the Israeli justice system all offer adequate remedies. The OTP should also reject the declaration because the PNA is marred by “unclean hands” by openly defying the authority of the Court, violating its representations to be in compliance with Part 9 of the Statute, and by failing to adhere to the Court’s principles and objectives. Finally, the PNA declaration is a part of the “Durban Strategy” – a political campaign that uses the rhetoric of human rights and international law in order to attack the legitimacy of the State of Israel. The ICC should not allow itself to be exploited as part of a cynical political campaign. For all of these reasons, the declaration has no merit and should be immediately rejected.

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.

Editorial

In terms of international criminal justice, this year has started at a furious pace. The first case before the International Criminal Court (ICC) entered trial phase; the Special Tribunal for Lebanon commenced its work in The Hague; and yet another internationalized tribunal might be established to investigate the turmoil following the 2007 elections in Kenya. And even as I write these lines, politicians and academics alike are still struggling with a watershed event in the Darfur situation. On 4 March 2009, Pre-Trial Chamber I of the ICC issued a warrant of arrest against Omar Hassan Ahmad al Bashir, the serving head of state of Sudan. In itself, such an event may not strike our readers as new — they will recall that the proceedings against Slobodan Milošević before the International Criminal Tribunal for the former Yugoslavia and against Charles Taylor before the Special Court for Sierra Leone were initiated when both were heads of state, of the Federal Republic of Yugoslavia and Liberia, respectively. However, the Pre-Trial Chamber's decision drew most diverse reactions in its wake. The African Union expressed its deep concern over the decision and voiced worries that it might lead to further suffering in Sudan. In the same vein, the President of the UN General Assembly, Miguel d’Escoto Brockmann of Nicaragua, stated that the indictment of the Sudanese President would be a blow to international justice. While stepping short of explicitly applauding the ICC for its move, the Presidency of the European Union, however, took the opportunity to re-iterate its full support and respect for the Court. Even before the judges handed down their decision, the US administration had declared with a view to the Darfur situation that it backed the ICC in its pursuit of those who perpetrated war crimes and did not see any reason to support deferral of the case at this time. Time alone will tell whether the decision of the ICC's Office of the Prosecutor to pursue the President of Sudan is powerful proof of the Court's determination and ability to prosecute international crimes regardless of the alleged perpetrator's status, or an unwise and premature effort damaging the credibility and long-term success of the Court as a whole.

The International Criminal Court's Office of the Prosecutor: Navigating between Independence and Accountability?

AbstractThis contribution critically appraises the institutional position which is held by the International Criminal Court's Office of the Prosecutor. Especially, it will be asked whether and to what extent the latter is « independent » in its activities, or whether and to what extent other actors – both inside and outside the Court – can hamper the Office of the Prosecutor's margin to independently manoeuver. Against the background of the debates preceding the Rome Statute's adoption, where it was feared that the Office of the Prosecutor would become an actor that would no longer be controllable by anyone, the logical counterpart of the first question will necessarily need to assess to what extent the Office of the Prosecutor has been rendered instutionally accountable. Throughout, particular emphasis will be put on the oversight which can be exercised by the Pre-Trial Chamber. This, together with other practical factors which can constrain the Prosecutor's scope of action, leads to the conclusion that many checks and balances seriously hamper the realities of the theoretical affirmation that the Office of the Prosecutor would be an institutionally independent actor.