Tuesday, August 13, 2013

The ICC and the Israel-Palestine Conflict

Will the conflict between Palestine and Israel come to the ICC? This fraught question has received considerable media and political attention in the past few weeks while Kerry is striving to revive Israeli-Palestinian peace talks. AMICC comes to grips with this complex issue in its new advocacy document.

When most ruled out the possibility of the ICC involvement in the situation of Palestine, surprisingly, three years after the incident, on May 14th, 2013, the Union of the Comoros, a State Party to the ICC, referred the situation to the Court in relation to the May 2010 Israeli raid on the Humanitarian Aid Flotilla bound for the Gaza Strip. The legal representative of the victims, the Turkish law firm Elmadag, supposedly approached the government of Comoros, where one of the vessels was registered and proposed that it present to the ICC the referral of Comoros naming the Israelis allegedly responsible for the attack. Comoros which does not maintain diplomatic ties with Israel, accepted. Subsequently, the ICC Prosecutor decided to launch a preliminary examination to determine whether the criteria to open a formal investigation were met. This referral presents some peculiar legal features that overshadow the admissibility of the situation before the Court. The Rome Statute makes it clear that the ICC will have territorial jurisdiction over crimes committed on board vessels registered in a State Party. However, since the gravity of the crimes committed is relatively minor compared to the other situations before the Court, will this situation be considered serious enough to call for a formal investigation? Is this, as the Rome Statute requires a case that “shocks the conscience of humanity” or is ‘of concern to the international community as a whole”, should we expect the ICC to be bold enough to consider the broader situation of Gaza or even the overall Israel- Palestine conflict? Those questions are tightly linked since the gravity threshold might be satisfied only if the referral is considered as part of the broader situation.
A second scenario calls for consideration. On account of its new status as a "non-member observer state" after the UN General Assembly vote on November 2012, the Palestinian Authority has repeatedly alluded to its intention to refer the situation to the ICC should Israel continue its settlement policy. This would require settling the questions of the ICC's temporal and territorial jurisdiction, both being especially complex because of the ambiguous status of Palestine as a political entity. In answering these questions, the political stakes at hand are also to be acknowledged. Without necessarily having any real intention to refer the situation to the ICC, Palestine seems to use that possibility as a political leverage to bring Israel to the negotiating table and kick start the peace process.
The stance that the Court will take towards this situation will be crucial in shaping both the public international opinion and its relationship with states. This situation is a double-sided coin. Any development at the Court related to Israel could on the one hand alter the fragile relationship between the US and the ICC and thus deprive the latter of a crucial support, and on the other hand recover the Court's legitimacy within the "nonwestern nations" that accuse the Court of selectivity and especially targeting weak African states.
The new advocacy document released by AMICC aims to explore the two main scenarios that could lead the Court to build cases involving Palestinian and Israeli individuals: either as a result of the recent referral by Comoros, or through a referral of the situation to the ICC by Palestine. By taking into account both legal and political factors, this paper considers how a potential case involving nationals of the two countries would both be determining for the Court’s jurisprudence to come, and affect the international outlook on it. In particular, this paper seeks to address the crucial United States' concern that this potential case is raising.

 Read more here.
By Maryne Rondot

Wednesday, August 07, 2013

Who to Prosecute? The OTP’s Inherent Dilemma

ICC Deputy Prosecutor James Stewart recently explained that the Office of the Prosecutor (OTP) can’t always investigate or prosecute all sides of a conflict at the same time. He stated that sometimes “You have to make a choice between action and paralysis and between pragmatism and ideals. And I think if you choose pragmatic action, you really shouldn’t be criticized.”

Some have suggested that Stewart’s statement indicates that the OTP acts in a self-interested way, taking into account “what is  good for the Court” when determining which situations and cases to focus its time on.

This analysis misses Stewart’s point. Stewart is simply saying that the OTP must consider what is actually possible when determining what to investigate and prosecute. His statement points at a fundamental question that the OTP has always faced: how best to spend its limited time and insufficient manpower and resources to ensure that justice is done.

The OTP’s staff and resource shortage is primarily due to the OTP’s limited budget, which is set by the Assembly of States Parties (ASP). Even though the ASP is putting great pressure on the ICC not to increase its budget for 2014, the OTP has asked the ASP for more money to, among other things, allow the OTP to perform broader investigations. This would certainly help the OTP to conduct simultaneous investigations and prosecutions of multiple sides of a conflict.

Absent additional resources, the OTP must weigh a variety of factors when determining where to focus its attention. Many of these issues will remain important for the OTP if its budget is increased.

One issue the OTP must examine is whether justice can only be done if all sides of a conflict are investigated and prosecuted simultaneously. This factor obviously influenced the OTP’s decision to bring two simultaneous cases from its investigation into the 2007/2008 post-election violence in Kenya. The OTP brought charges against the two main sides of the conflict (the predominantly ODM/Kalenjin side, and the predominantly PNU/Kikuyu side); charging only one side would have provoked the underlying us-versus-them tribal discord that led to the violence in the first place and could have triggered fresh violence.

Another issue the OTP considers is how fast the investigation or case must progress so that its work will contribute to the pursuit of justice and possibly help to stop ongoing atrocities. This is surely a factor that influenced the speed with which the OTP requested arrest warrants in the Libya investigation. Though the OTP requested arrest warrants only for senior Gaddafi officials, the OTP may have weighed speedy arrest warrants over the need to simultaneously pursue rebel crimes in order to contribute to the global effort to stop the atrocities of Gaddafi’s regime.

The OTP may also choose to focus on one party to a conflict where that party has committed or is committing crimes that are more serious that those committed by others. Again, this may have influenced the OTP’s priorities during its investigation in the Libya situation.
Where the OTP seeks to investigate and prosecute crimes committed by a sitting government, the OTP will have to consider what kind of cases it can feasibly bring. The government can disrupt the OTP’s investigation by, for example, refusing OTP staff access to the country, or tampering with witnesses and other evidence. Under these circumstances, the OTP may have insufficient evidence of certain crimes. It may decide to bring charges for only a limited set of crimes to ensure that the perpetrators are prosecuted for something, rather than waiting – possibly in vain – to gather evidence of all suspected crimes before requesting arrest warrants or summonses to appear.

These are only examples of the numerous practical questions that effect the OTP’s investigation and charging decisions. Now that Deputy Prosecutor Stewart is being more candid about this issue, perhaps the OTP can be more transparent about how and why its investigations and cases take the shape they do. Without this transparency, external observers, victims, and others will not understand the real factors influencing the OTP’s decisions, and may view it as biased, self-interested, or misled. They will not understand how the OTP has delicately balanced its work between an understanding of what it will mean for justice to be done, and the factors that limit how the OTP can achieve justice.

At the same time the OTP must not become complacent in its prosecutions. Stewart’s statement highlights the fact that the OTP may sometimes need to move forward with the prosecution of one side of a conflict without prosecuting crimes committed by other sides at the same time. The danger is that the OTP will not follow up with prosecutions of crimes committed by the other sides. This is particularly so because the OTP is already stretched thin, and because new crises regularly arise and may require immediate attention before the OTP has circled back to prosecute follow-up cases. The OTP needs to internalize practices and standards that guard against this.

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From 2005-2008, Corrie served as an Assistant District Attorney in New York County (Manhattan). From 2009-2012, Corrie served as an analyst and trial lawyer with the OTP. She has also worked on international human rights litigation with the Open Society Justice Initiative, and now acts as a consultant to the President of the Assembly of States Parties of the ICC. The views expressed in this article are those of the author and do not necessarily represent the views of, and should not be attributed to, any organization with whom the author has worked or currently works.