IJCentral: International Justice Central

June 12 (Reuters) - Member states at a Kampala review conference of the International Criminal Court have agreed on how the court could investigate crimes of state aggression, such as an invasion or an attack on another nation.

Below are questions and answers on the move and what it means for the ICC, the world’s first permanent war crimes court.

HOW IS SUCH A CRIME DEFINED?

The crime of aggression was included in the 1998 Rome Statute which set up the court, listing aggression crimes along with genocide, crimes against humanity and war crimes as one of the four grave crimes the ICC has jurisdiction over.

It is broadly defined as the use of force that manifestly breaches the United Nations charter and includes an invasion, a bombardment, port blockade or a country allowing a state to use its territory to attack a third nation.

WHAT WAS DECIDED?

Delegates decided that the Security Council, the ICC and states should all have a role in deciding whether an investigation into an act of aggression should take place.

But the compromise deal gives the court at least seven years before it would gain the authority to prosecute the crime of waging an aggressive war and it depends on further agreement between ICC member states before taking effect.

That agreement cannot take place before January 1, 2017.

WHAT ARE THE DRAWBACKS?

Allowing the ICC to prosecute state aggression risks involving the court in political disputes between states because a decision to go to war can be an inherently political decision.

Observers also say allowing ICC jurisdiction over aggression could arm critics who say the court is a political jurisdiction.

The United States, which is not a member of the court, is also wary its troops could be prosecuted for the use of force in trying to end war crimes the ICC is mandated to prosecute.

It has argued that there are uncertainties and ambiguities in the definition of the crime of aggression and that judges would find it difficult to reach a ruling.

Japan warned that the deal amending the Rome Statute that set up the court is based on a “dubious legal foundation” and raised concerns non-member states are shielded from being investigated.

Some critics say the court is too young to take on the political risks as it is still trying to fully establish itself.

WHAT ARE THE BENEFITS?

The deal gives a limited extension to the court’s reach by allowing it to prosecute the crime of waging an aggressive war.

Proponents said the deal avoided giving control to the U.N. Security Council over the court’s authority in respect to aggression crimes after earlier warning that giving the council control over such probes could reduce the court’s independence.

The deal also gives the court at least seven years to strengthen itself and prepare for its new powers.

Observers say the crime of aggression is based on well-established international law and if the ICC had the power to prosecute aggression this could serve as a strong deterrent.

Enabling the ICC to investigate aggression could benefit both powerful and weaker states by affording better protection against one state from being invaded while protecting a powerful state from being turned into an aggressor by criminal leaders.

While the court has the powers to prosecute war crimes, crimes against humanity and genocide, some observers say the court is incomplete if it does not have the jurisdiction to proseute state aggression, which often leads to war crimes.

HOW WOULD INVESTIGATIONS BE TRIGGERED?

The agreement stipulates that the U.N. Security Council would have first say in whether an investigation into an act of aggression should take place.

Other options at the Kampala conference for triggering an investigation had initially included a vote of the U.N. General Assembly, a ruling at the International Court of Justice in The Hague or a ruling handed down by ICC judges.

Eventually, delegates decided that either the Security Council, the ICC or state referral would have the power to trigger a probe.

WHAT NOW?

Member states will need to decide after January 1, 2017 on the entering into force of the court’s new jurisdiction.

But state parties can also “opt-out” of allowing the ICC to have jurisdiction by lodging a declaration with the court. States that opt-out must reconsider the declaration.

Source: Reuters
(Reporting by Aaron Gray-Block; editing by Philippa Fletcher)

Dhaka Mar 22 (bdnews24.com) - The cabinet on Monday ratified the Rome Statute of the International Criminal Court, which sets international standards for prosecution of individuals who commit crimes against humanity.

“The ratification will prove that Bangladesh is determined to follow international standards to prosecute crimes against humanity, war crimes and genocide” the prime minister’s press secretary Abul Kalam Azad said.

Bangladesh signed the Rome Statute on July 17, 1998, the first country to do so in South Asia.

The statute, entering into force on 1 July 2002, is the treaty that established the International Criminal Court (ICC).

The ICC’s main purpose is to assist the international community in trying the most heinous international crimes: genocide, war crimes, and crimes again humanity. The official seat of the permanent tribunal is in The Hague, Netherlands, but its proceedings may take place anywhere.

But it remains a “court of last resort”, leaving the primary responsibility to exercise jurisdiction over alleged criminals to national legal systems. Under this system of ‘complementarity’, it will only act when national authorities are unable or unwilling to investigate and prosecute crimes.

Asked whether ratification of the statute by Bangladesh would help in the government’s upcoming prosecution of 1971 war crimes trials, law minister Shafique Ahmed earlier this week said ratification was necessary for prosecution of future instances of crimes against humanity.

The ICC can only prosecute crimes committed on or after the date it came into force. However, ratification of the statute calls on countries to adopt a number of actions, including bringing their own laws into line with its provisions.

The law minister last week confirmed that Bangladesh’s upcoming 1971 war crimes trials would be held under its recently amended International Crimes (Tribunals) Act 1973.

An expert panel of international lawyers, including a former war crimes prosecutor, submitted a legal opinion to the government last month, however, advising further amendments to ensure the 1973 Act meets international standards.

Among other recommendations, the lawyers advise that sections of the Rome Statute dealing with rights of suspects during investigations must be included in the Act.

As of October 2009, 110 states were party to the Rome Statute, and a further 38 states had signed but not ratified the treaty. The US, Sudan and Israel, once signatories, have ‘unsigned’ the statute.

source: Bangladesh News Online

** I’m twittering the hearing at: http://twitter.com/bechamilton for those who can’t catch the live webcast**

There is a hearing at the ICC this morning which may seem to be on an obscure legal point to the general public, but is actually of significance to the global system of justice established by the Rome Statute.

The hearing concerns a challenge to the admissibility of the case against DRC warlord, Germain Katanga.

Charges of war crimes and crimes against humanity, including murder and rape, were confirmed against Katanga by Pre-Trial Chamber I while I was at the court last year. His trial (jointly with Mathieu Ngudjolo Chui) is due to commence in September this year. However, in a motion filed in February, Katanga’s defense team (led by the impressive British barrister, David Hooper) are challenging whether the case against Katanga is admissible (re-stated in plain English: Does the ICC have the authority to hear this case or should his case be dealt with by the DRC’s judicial system?).

Under the system established by the Rome Statute, the ICC is a court of last resort. By design, the drafters of the Rome Statute decided that national judicial systems should have primacy, and only if these systems were unable or unwilling to conduct genuine investigations and prosecutions would the ICC come into play. In legal terms this is “the principle of complementarity.” In practical terms it means that the system established by the Rome Statute aims to encourage justice at the local level first - with justice being undertaken at the international legal only when the local system fails.

I personally think that complementarity it is a very positive design feature of the Rome Statute that is not nearly well enough understood by those who lump the ICC into the same category as the ad hoc tribunals for Rwanda and the former Yugoslavia (which do not operate on the complementarity principle). As ICC Prosecutor Luis Moreno Ocampo put it when he came to office: “The efficiency of the International Criminal Court should not be measured by the number of cases that reach the court or by the content of its decisions. Quite on the contrary, because of the exceptional character of this institution, the absence of trials led by this court as a consequence of the regular functioning of national institutions, would be its major success.”

So why then is the Prosecution fighting the Defense on the admissibility of this case before the ICC?

In essence it comes down to a fight over the meaning of the word “case.”  In this morning’s hearing I expect we will see the Prosecution argue that the case against Katanga was not being investigated or prosecuted by the DRC, and they will do so using the definition of the word “case” that Pre-Trial Chamber I established several years ago in Lubanga - Namely that a case involves the same person and same conduct:  “. . . for a case arising from an investigation of a situation to be inadmissible, national proceedings must encompass both the person and the conduct which is the subject of the case before the court.” (Decision of Pre-Trial Chamber I, 24 Feb. 2006, para 37). Therefore, the fact that the DRC were investigating Katanaga is not, in and of itself, enough to make the case inadmissible. It would only be inadmissible if they were also investigating him for the same conduct as in the ICC case.

By contrast, the Defense has argued in its submissions that this interpretation of the word “case” is too narrow. They also argue that the DRC authorities would have started looking at the conduct the ICC is now looking at if the ICC had not begun its investigation.

My view, for what it’s worth, is that given the Chamber’s definition of the word “case” in Lubanga, the Prosecution’s argument is solid as a matter of law. (Moreover, with my cynics hat on I have to wonder what’s the likelihood that a panel of Judges deciding they no longer have the power to adjudicate a case that they have already confirmed the charges in??).  However Hooper rarely makes a vacuous argument, and there are some policy consequences flowing from the Chamber’s initial decision to define the word “case” as narrowly as they did in Lubanga that Hooper is the first to really draw the Court’s attention to.

In short - for anyone interested in the balance of local vs. international justice, this hearing is worth paying attention to. You can see it livestreamed through the Court’s site from 10am (Dutch time) this morning in English or French.

re-posted by IJCentral from Bec Hamilton

Much hay has been made since the ICC announced the arrest warrants for Sudanese President Omar al-Bashir, about the fact that the warrants were issued for crimes against humanity (5 counts) and war crimes (2) but not for genocide, the third category of crime that Prosecutor Luis Moreno Ocampo had included in his request for the warrants on July 14, 2008.  Many people that I respect in the international justice field have seized on this decision by the ICC judges as if it represents some kind of a failure for the Prosecutor because they thought he should not have accused al-Bashir with genocide in the first place, or because they thought it was too controversial, or are disappointed that the judges decided against issuing a warrant for genocide.  Aren’t these critics satisfied with crimes against humanity and war crimes?  Here’s the definition of crimes against humanity from the Rome Statue, the founding document of the ICC:

“Particularly odious offences in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings. They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. Murder, extermination, torture, rape, political, racial, or religious persecution and other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice. Isolated inhumane acts of this nature may constitute grave infringements of human rights, or depending on the circumstances, war crimes, but may fall short of falling into the category of crimes under discussion.”

Whatever the reasons, it really feels like splitting hairs, or finding the negative in what I see as huge positive step forward for humankind.  We finally have a Court that is capable of issuing arrest warrants for a sitting head of state - that’s amazing.  As former ICC Senior Trial Attorney says in the film “The Reckoning: The Battle for the International Criminal Court”, the Sudan/Darfur case is the kind of case the Court was made for, to hold leaders of countries to account when they commit war crimes, crimes against humanity and genocide.  As the Prosecutor said at the press conference last week announcing the warrants, the judges considered his requests and decided not to issue the warrant for genocide - this shows a well functioning and independent court, where the judges don’t simply rubber stamp what the Prosecutor gives them.  One of the judges had a dissenting opinion, but the other two decided against - the Prosecutor said he would review their arguments against and perhaps file an appeal.  So let’s focus on the positive aspects of what the ICC is doing, and provide constructive criticism when appropriate.

A genocide charge may not be hanging over al-Bashir’s head at the moment, but crimes against humanity and war crimes are, and let’s focus on that.

Senegal’s President Abdoulaye Wade says that he wants to hand over former President of Chad Hissene Habre over to the the African Union (AU) to face trial for crimes against humanity.  Habre is accused of killing 40,000 and torturing 200,000 during his 8-year reign, which would definitely make him an International Criminal Court (ICC) case, but for the fact that his alleged crimes were committed before the temporal jurisdiction of the ICC went into effect in July 2002 (Habre fled to Senegal after his regime collapsed in 1990).  Of course, as Reed Brody of Human Rights Watch says, the AU is not a state and has no capacity to try Habre.  Senegal’s President Wade says he doesn’t have the resources to create a special court and put Habre on trial, and doesn’t want to hand him over to Belgium where a court has sought his arrest based on universal jurisdiction, because he doesn’t want to see an African leader tried outside of Africa.  This whole jurisdictional mess points out the value of having a permanent ICC in place.  If Habre had committed his crimes after 2002, he would be in the sights of the ICC, as President Omar al-Bashir of Sudan is now.  Because of the circumstances, a universal jurisdiction case from a domestic national court such as the one opened in Belgium against Habre seems to be the only option, but the world of international justice will have a lot more clarity when all countries have ratified the ICC and it has universal jurisdiction based on the consensus of an international treaty, the Rome Statute.

Welcome to IJCentral - we’ve been working for months developing this platform for a global conversation about international justice.  During the 3 years we spent on 4 continents filming The Reckoning: The Battle for the International Criminal Court, we realized that there are thousands of people who have a lot to say about mass atrocities and impunity and the role that justice should play in moving a society from the horrors of violent conflict to peace and stability, and there are as many opinions as there are voices.  Most of these voices are never heard outside their local milieu - we have a included some of them in The Reckoning, but at IJCentral we hope that the conversation will expand and be ongoing and that through this process we will all contribute to an effective international justice system.  Through the grassroots movement we aim to build through IJCentral, working in tandem with a range of strategic partners reachable through this site, we will let our leaders know that we want international justice to work, that it’s time to get serious about ending genocide, and it’s time to exercise the political will to support the mandate given to the International Criminal Court in its founding treaty, the Rome Statute.

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