On 22 March 2017, the Trial Chamber VII of the International Criminal Court (ICC) pronounced the sentences in the Bemba et al. Article 70 case, following its judgment on 19 October 2016, where it found Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu, and Narcisse Arido guilty of various offenses against the administration of justice in Prosecutor v. Jean-Pierre Bemba Gombo (Main Case).
Former Gambian President Yahya Jammeh, having joined other African leaders in succumbing to the lure of withdrawal from the International Criminal Court (ICC)1 See alsoGambia Follows South Africa’s ICC Exodus: Quelle Surprise, 31 October 2016. – no doubt out of fear of one day ending up in the ICC dock – departed the Gambia for Equatorial Guinea (a non-signatory to the Rome Statute) under a brokered deal that fell short of granting him immunity for any crimes he is alleged to have committed during his 22-year long reign.2 For more on the terms of settlement, see Antenor Hallo de Wolf, Rattling Sabers to Save Democracy in The Gambia,EJIL:Talk!, 1 February 2017.
Ever since the International Criminal Court (ICC) was established, it has been rather unfashionable for defense counsel to praise the ICC Registrar for attempting, let along getting, something right for the Defense. Why?
On 5 December 2016, the Israeli Knesset approved a new draft of a bill recognizing West Bank settlement outposts – some 4,000 settler homes built on private Palestinian land. This measure has proved to be controversial, characterized by some as an illegal land grab. And by most accounts, it now appears that this measure was the tripwire for UN Resolution 2334 (2016), “reaffirm[ing] that the establishment by Israel of settlements … has no legal validity and constitutes a flagrant violation under international law and a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive peace.”1 United Nations Security Council Resolution 2334 (2016), S/RES/2334 (2016), 23 December 2016. Expectedly, acrimony and recrimination has followed.
This is the third and final post in the series discussing the Office of the Prosecutor’s (OTP) Report on Preliminary Examination Activities (2016). In this series, I focus on three preliminary examinations (the situations in Afghanistan and Ukraine, and the situation on Registered Vessels of Comoros, Greece, and Cambodia, or the Mavi Marmara incident) and discussed the political considerations involved.
In the first post I briefly discussed the procedure for preliminary examinations established by the Rome Statute and the attendant modalities adopted by the OTP. Before an investigation can begin, the OTP analyzes whether the International Criminal Court (ICC) has jurisdiction over a situation, and whether the situation is admissible. The OTP examines whether a national court is already dealing with the situation, how genuine are the investigations/trial (complementarity criteria), and whether there is enough information on crimes of sufficient gravity (gravity criteria). Regardless of jurisdiction and admissibility, the OTP will finally consider whether there is a compelling reason not to take on this situation (interests of justice).
In the second post I discussed the situations in Afghanistan and Ukraine. My take is that regardless of whether the states fail to cooperate with and follow up on the OTP’s investigations, the ICC can affect some positive results by nudging (naming and shaming if necessary) certain states into prosecuting in domestic courts cases that fall within the ICC’s jurisdiction. To this end, the ICC can play a role of an investigative organ of the international community – serving fully investigated cases on a silver platter for states to prosecute.
In this post I will focus on the situations in Afghanistan and Ukraine. I will explore the pros and cons of investigations against non-signatory states that are also permanent members of the United Nations (UN) Security Council (P5 member states) and are unlikely to allow their nationals to be prosecuted at the International Criminal Court (ICC).
Situation in Afghanistan
The situation in Afghanistan examines the alleged crimes committed during the armed conflict between the Afghan Government supported by the International Security Assistance Force (ISAF – first established by the UN Security Council, and later under NATO command) and the United States (US) forces on one side, and anti-Government forces (particularly the Taliban, and other groups) on the other side.1 ICC-OTP, Report on Preliminary Examination Activities, 14 November 2016, paras. 195-96 (hereinafter “ICC-OTP Report”). The conflict broke out in late 2001, triggered by the attacks of 9/11 (September 11, 2001). A US-led coalition launched air strikes and military operations against the Taliban in Afghanistan. After Osama bin Laden’s death in 2011, NATO gradually withdrew its forces. By 2014, the international forces supporting the Afghan Government ended their combat missions, but some forces remain for training, advisory, and assistance purposes.2Id.Continue reading “The ICC-OTP’s November 2016 Report on Preliminary Examination Activities: Part II – Situations in Afghanistan and Ukraine”