Decision Of Pre-Trial Chamber Research Articles

The Problem with the Crime of Forced Migration as a Loophole to icc Jurisdiction

Abstract In November 2019, the icc’s Pre-Trial Chamber authorized the Prosecutor to proceed with an investigation based on a previous decision that the Court may exercise jurisdiction over the alleged deportation of Rohingya from Myanmar to Bangladesh. While the crime of deportation occurred in Myanmar, which is not a State party to the icc and therefore not within the jurisdiction of the Court without unsc referral, the deportation ended in Bangladesh, which is a State party. Once the Court determined that the State that receives the forcibly displaced can confer jurisdiction, the ground seemed to shift drastically in regards to the possible jurisdictional reach of the icc. This paper explores how this Pre-Trial Chamber decision, reasonably read as extending the Court’s geographic jurisdiction beyond what was intended by the drafters of the Rome Statute, could have negative implications, particularly how this extension could further threaten some of the world’s most vulnerable.

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 Scope of Appeal on Complementarity Issues before the icc

On 27 May 2015, the Appeals Chamber of the International Criminal Court (icc) issued a judgment on the appeal of Côte d’Ivoire against the decision of Pre-Trial Chamber i of 11 December 2014 entitled “Decision on Côte d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo”. As a result of this decision, the path to prosecute Simone Gbagbo lies open. The Appeals Chamber confirmed the opinion expressed by the Pre-Trial Chamber that there were no obstacles in the form of national prosecutions which would exclude the icc’s jurisdiction pursuant to the principle of complementarity. This judgment is not only important from the point of view that the icc has found no basis to find the case inadmissible on the grounds of lack of complementarity, but even more so because of the procedural issues at stake. In this decision, solutions can be found that are crucial with regard to the scope and methods of appellate review before the icc.

Prosecutor v. Laurent Koudou Gbagbo: Judgment on the Appeal Against the Decision of Pre-Trial Chamber I on Jurisdiction and Stay of the Proceedings (Int’l. Crim. CT.)

On December 12, 2012, the Appeals Chamber of the International Criminal Court (Court) in the case of Prosecutor v. Laurent Koudou Gbagbo unanimously confirmed the Pre-Trial Chamber I decision to dismiss Mr. Gbagbo’s challenge to the jurisdiction of the Court. In the Judgment, the Appeals Chamber, for the first time, was called to interpret Article 12(3) of the Rome Statute (Statute), which allows a non-party State to accept the jurisdiction of the Court on an ad hoc basis without acceding to the Statute. The Judgment further includes two procedural issues. Firstly, the Appeals Chamber found that although the Pre-Trial Chamber erred by not rendering a separate decision on Côte d’Ivoire’s request for leave to submit its observations, this error did not materially affect the Pre-Trial Chamber’s decision. Secondly, the Appeals Chamber dismissed, in limine, Mr. Gbagbo’s request for a stay of proceedings based on allegations of violations of his fundamental rights, since it was not jurisdictional in nature and thus fell outside the scope of the appealable matter.

Prosecutor v. Callixte Mbarushimana: Judgment on the Appeal of the Prosecutor Against the Decision of Pre-Trial Chamber I of 16 December 2011 Entitled “Decision on the Confirmation of Charges” (Int'l Crim. Ct.)

On May 30, 2012, the Appeals Chamber (Chamber) of the International Criminal Court (ICC) voted unanimously to dismiss the appeal of the Prosecution against the decision of the Pre-Trial Chamber not to confirm the charges against the alleged Congolese warlord Callixte Mbarushimana. The Prosecution had alleged Mbarushimana was criminally responsible under Article 25(3)(d) of the Rome Statute (Statute) for crimes against humanity and war crimes committed by members of the Forces Démocratiques de Libération du Rwanda (FDLR) in the Kivu provinces of the Democratic Republic of the Congo. The Prosecution had appealed the Pre-Trial Chamber’s decision on three separate issues, all of which were rejected.

The International Criminal Court Appeals Chamber: Prosecutor V. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali

On August 30, 2011, a majority of the Appeals Chamber of the International Criminal Court (‘‘ICC’’) rejected the appeal of the Government of Kenya to the earlier admissibility decision of Pre-Trial Chamber II in the case of Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, one of two cases arising from the ICC’s investigations into crimes against humanity committed during the 2007 post-election violence in Kenya.

Joint Criminal Enterprise: Cambodia's Reply to Tadić

AbstractThe doctrine of Joint Criminal Enterprise (JCE), which imposes individual criminal responsibility on an accused for their participation in a group's common criminal plan, rose to prominence in the ICTY Appeal Chamber decision, Prosecutor v. Tadić. Since Tadić, there has been a general reluctance by international ad hoc tribunals to review the legal foundation of JCE. However, on 20 May 2010, the ECCC Pre-Trial Chamber (PTC) considered the applicability of JCE to the atrocities which occurred in Cambodia during 1975-1979 - the period within the tribunal's temporal jurisdiction. The PTC has, unlike any other ad hoc tribunal to date, subjected the reasoning in Tadić to close scrutiny. This article will analyse the PTC's decision. In squarely contradicting Tadić on the expanded form of JCE, its findings are to be welcomed. The PTC's decision should be upheld on appeal in order to uphold the principle of legality; to safeguard the continued respect, credibility and future legacy of the ECCC trial process.

The Crime of Genocide and Contextual Elements: A Comment on the ICC Pre-Trial Chamber's Decision in the Al Bashir Case

The Pre-Trial Chamber correctly held that the formulation of the last (common) element in the Elements of Crimes on Genocide does not purport to amend the crime's definition but provides for a welcome clarification. The contextual elements should not, however, be seen as an addition to the crime's actus reus but as an objective point of reference for the determination of a realistic genocidal intent. The Chamber's requirement of a ‘concrete threat’ is unfortunately worded because it suggests an unduly stringent contextual threshold.

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.

IV.ProsecutorvThomas Lubanga, Decision of Pre-Trial Chamber I of the International Criminal Court, 29 January 2007

On 29 January 2007, Pre-Trial Chamber I of the International Criminal Court (the ICC) handed down its decision confirming the charges brought against Thomas Lubanga Dyilo, the first defendant to appear before the Court. In this and earlier decisions in the case, the Chamber has said a number of interesting things about the admissibility of cases before the Court, the elements of the war crime of child recruitment and the modes of liability under the Rome Statute of the International Criminal Court (the Rome Statute).140More generally, however, the Chamber's actions also say much about the role the judges of the ICC see themselves as undertaking in the Court's proceedings.Thomas Lubanga is a national of the Democratic Republic of Congo (the DRC). He describes himself as a politician. It is alleged that from its foundation in 2000 he has been the leader of theUnion des patriots congolais(the UPC) and commander-in-chief of its military wing, theForces patriotiques pour la liberation du Congo(the FPLC). From mid-2002 to the end of 2003, the FPLC was engaged in fighting in the region of Ituri in the DRC. During the conflict, the UPC/FPLC is alleged to have committed numerous atrocities, including the widespread recruitment of children into its ranks.141The DRC had become a party to the Rome Statute on 11 April 2002 and, accordingly, the Statute entered into force for it on 1 July 2002, the date of the Court's establishment. Following strong hints from the Prosecutor,142on 19 April 2004 the President of the DRC referrred to the Court ‘the situation of crimes within the juris- diction of the Court allegedly committed anywhere in the territory of the DRC since the entry into force of the Rome Statute’.143On 23 June 2004, the Prosecutor opened an investigation into the situation, the ICC's first.144On 19 March 2005, Lubanga was arrested and detained by the DRC authorities, and charged with genocide, crimes against humanity, murder, illegal detention and torture in relation to crimes alleged committed between May 2003 and February 2005. On 17 March 2006, Lubanga was transferred from Congolese custody to that of the ICC.