Category: ICC

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?

Much lip service is paid to the fair trial rights of the accused, the need for a robust defense for all accused, and, let’s not overlook, the attainment of equality of arms. While the ICC from its inception has extolled the virtues of the role played by defense counsel, it has, unabashedly, provided a pauper’s wage and meager resources.  Any prosecutor or judge would cringe were he or she in the dock dependent on a court-financed defense of the type funded by the ICC. Nothing new; with one or two exceptions, other international(ized) tribunals and courts are only marginally better.  The ICC, however, has taken it to the near extreme. Continue reading “The ICC Registrar-Commissioned Reports Assessing the Legal Aid System: reasonable doubt at a reasonable price, realizing equality of arms, resource rationalization, and more”

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.”(( United Nations Security Council Resolution 2334 (2016), S/RES/2334 (2016), 23 December 2016.)) Expectedly, acrimony and recrimination has followed.

One embarks on a discourse about Israel, Palestine, and the International Criminal Court (ICC) at his or her risk. Emotions run high on all sides. Comments made even with the best of intentions, and however measured, can draw fire, friendly and otherwise.  Difficult to have a friend-to-friend discourse without being labeled naïve, insensitive, pro-this or anti-that. Continue reading “Will the ICC Prosecutor be tempted by Israel’s settlement regulation bill?”

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 final post I will discuss the Mavi Marmara incident. Continue reading “The ICC-OTP’s Report on Preliminary Examination Activities: Part III – Registered Vessels of Comoros, Greece, and Cambodia (the Mavi Marmara incident)”

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.(( 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.(( Id.)) Continue reading “The ICC-OTP’s November 2016 Report on Preliminary Examination Activities: Part II – Situations in Afghanistan and Ukraine”

On 14 November 2016, the International Criminal Court’s (ICC) Office of the Prosecutor (OTP) issued its latest Report on Preliminary Examination Activities (Report). The Report sets out, in general, the OTP’s efforts in conducting preliminary examinations of communications and situations to determine whether under the Rome Statute investigations are warranted.(( Report on Preliminary Examination Activities, 14 November 2016, (Report), para. 1, citing Policy Paper on Preliminary Examinations, November 2013.)) The overarching goals of a preliminary examination are “the ending of impunity, by encouraging genuine national proceedings, and the prevention of crimes … potentially obviating the need for the Court’s intervention.”(( Report, para. 16.))

The Report is clear, concise, and informative.  Rather than discuss all the details of the OTP’s activities, I will merely focus on the three preliminary examinations: the situation in Afghanistan, specifically the alleged crimes committed by the United States (US) armed forces and citizens acting on behalf of the US, the situation in Ukraine, and the OTP’s reconsideration of the situation related to Israel (registered vessels of Comoros, Greece, and Cambodia – the Mavi Marmara incident).

This is the first post of a three-post series.  I hope to explore the pros and cons of pursuing examinations against non-signatory states that are also permanent members of the UN Security Council (and are unlikely to allow their nationals to be prosecuted at the ICC), and whether the Pre-Trial Chamber’s request to the OTP to reconsider the decision not to initiate an investigation into the Mavi Marmara incident is merited or based on dubious political considerations.(( In November 2014, the OTP completed its preliminary examination into the Mavi Marmara incident with a decision not to proceed with an investigation because the potential case(s) would be of insufficient gravity.  See ICC-OTP, Article 53(1) Report, 6 November 2014, para. 150. In January 2015, the Comoros applied for review of this decision before the Pre-Trial Chamber. Based on this application, the Pre-Trial Chamber requested the OTP to reconsider its decision. See Situation in the Registered vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, ICC-01/13, Application for Review pursuant to Article 53(3)(a) of the Prosecutor’s Decision of 6 November 2014 not to initiate an investigation in the Situation, 29 January 2015; Decision on the Request of the Union of the Comoros to review the Prosecutor’s Decision not to Initiate an Investigation, 16 July 2015.)) Continue reading “The ICC-OTP’s November 2016 Report on Preliminary Examination Activities: Some Observations”

With the election of Donald Trump as President of the United States of America (US), the international community may be wondering whether international norms are likely to be respected by the most powerful nation (militarily and economically) in the world.  As one of the permanent five (P5) members of the United Nations Security Council, the US under a Donald Trump presidency may be tempted – as the US has done in the past – to pay lip service to international norms with virtual impunity.  The US is not alone; other P5 members have acted with impunity. Russia in Aleppo is a fine example.

Donald Trump’s take on international norms is untenable, if, in fact, he believes what he was saying on the stump. Demagogues on the constant rant – as Trump has been for the past two years – tend to eventually buy into what was initially convenient claptrap.  While his positions may have resonated with the unwary, they reveal a profound ignorance or utter contempt for many universally accepted international norms. Continue reading “Midnight over Dawn: an uncertain future for international norms”

There is no truth. There is only perception.

― Gustave Flaubert

The truth is normally what one perceives it to be.  At least, that is what I have found in trying cases before juries.  In fact, a trial before a jury is nothing short of a perception game; with each side marshalling the facts, crafting the narrative, and arranging the composition of events from jury selection to closing arguments, with the sole purpose of persuading the audience of this human drama as to what it should perceive the truth to be.  Prosecutors may argue that they are after the truth, but I have yet to meet a prosecutor who, after getting his derrière publicly spanked and being abjectly rejected with a not guilty verdict, will congratulate the jury for finding the truth and thus reaching a just verdict.  The point I am driving at is that perception is often viewed as the truth, never mind whether the objective facts may show otherwise to a dispassionate observer.

If the truth is lost in the scrum of the perception game, should the International Criminal Court (ICC) care about its image?  Yes, it should. Continue reading “Will launching investigations into non-African situations stem the exodus of African states from the ICC?”