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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?”

 

The Islamic Republic of The Gambia announced late Tuesday 25 October 2016 that it was withdrawing from the International Criminal Court (ICC), or as Gambian Information Minister Sheriff Bojang characterized it, “the International Caucasian Court for the persecution and humiliation of people of colour, especially Africans.”(( See also the statement of the Information Minister Sheriff Bojang on Gambian television posted on YouTube by the news agency The Fatu Network, 25 October 2016, available online here.))

The reason for Gambia’s departure is apparent.  About a two-thirds of the African states that have signed the Rome Statute that established the ICC view the ICC as a Western court targeting Africans while giving a pass on westerners who are believed by some African heads of state to have been involved in war crimes and crimes against humanity. Former British Prime Minister Tony Blair, as far as Gambia is concerned, is a prime example of a Western leader (or former leader) who should be in the ICC dock for his role in the Iraq war.  Fat chance. Continue reading “Gambia follows South Africa’s ICC exodus: quelle surprise”

 

On 19 October 2016, South Africa formally requested to withdraw from the Rome Statute, the treaty that established the International Criminal Court (ICC).  With Cabinet approval and in accordance with Article 127(1) of the Rome Statute, the South African government sent an “instrument of withdrawal” letter to the United Nations Secretary-General explaining its intention.

The withdrawal should take effect in a year, though South Africa remains obligated to comply with the Rome Statute until the withdrawal is final. According to a press release, Minister of Justice and Correctional Services Michael Masutha highlighted irreconcilable differences: “the South African government has found its obligations, with respect to the peaceful resolution of conflicts, at times incompatible with the interpretation given by the ICC.”  The press release also noted how “[o]ther African Union member states have accused the ICC of unfairness in servicing its mandate. They claim the court is targeting African states over other members.” Continue reading “South Africa files for divorce from the ICC: the thrill is gone”

 

I greatly appreciate that my esteemed colleagues Catherine Mabille and Luc Walleyn took the time to comment on my recent post:  Witness tampering convictions at the ICC: repercussions under Article 70.  Thanks Catherine and Luc for your comments.  Below is my response.

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While I can understand the frustration and even anger over the double-standard when it comes to condemning defense lawyers for conduct that prosecutors get away with, I have yet to see where such arguments have traction as an excuse or an explanation for conduct that crosses ethical boundaries.  In some instances it may be useful to point out that the prosecution engages in certain conduct to demonstrate that the conduct is within acceptable bounds. But there is no merit to the argument that because the prosecution got away with such conduct in Lubanga, this kind of conduct should also be permitted in another case.  Continue reading “Response to comments on ethics enforcement inequality: the Superman vs. Batman dichotomy”

 

No legal system in the world can accept the bribing of witnesses, the inducement of witnesses to lie, or the illicit coaching of witnesses, nor can the ICC. Today’s judgement sends a clear message that the Court is not willing to allow its proceedings to be hampered or destroyed. It sends the message that those who try to distort and interfere with the administration of justice of this Court do not go unpunished.((Presiding Judge Bertram Schmitt, see audio visual recording of judgment delivery here.))

Yesterday, 19 October 2016, Trial Chamber VII of the International Criminal Court (ICC) delivered its judgement in the Bemba et al. Article 70 case.  All of the five accused were found guilty under Article 70 of the ICC Statute of various offences against the administration of justice in The Prosecutor v. Jean-Pierre Bemba Gombo. Continue reading “Witness tampering convictions at the ICC: repercussions under Article 70”

 

On 15 September 2016, the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) published its Policy Paper on Case Selection and Prioritisation (Policy Paper). Long overdue.

Policy papers can be instructive but do not always dictate the course of action that is ultimately taken.  Much has to do with the vision, drive, and inclination of the Prosecutor.   This was rather apparent with the first ICC Prosecutor, Luis Moreno-Ocampo, who was of the opinion that the goal of the court is to send a message to prevent future crimes, the so called “shadow of the court” goal. Continue reading “ICC-OTP sets out its vision: a look at the horizon”