Tuesday, April 29, 2014

Chain email calling for opposition against cooperation between the US and the ICC

A chain email in April called for opposition against President Barack Obama and against cooperation between the US and the International Criminal Court. This response corrects the general misperceptions of the Court among the American public that are reflected in this chain email and are so often encountered in our advocacy. 

The email continuously refers to the “United Nation’s ICC” implying that the International Criminal Court is part of the United Nations and is subject to UN policies and decisions. However, the Court is independent, including independence from the United Nations and its politics. Instead, the Court answers to its constituting member States (State Parties), who have subjected themselves to the Court’s jurisdiction. The only way in which the UN Security Council exercises influence over the Court is through the Rome Statute’s instruction to the Court’s judges to accept Security Council requests to defer cases it believes to threaten international peace and security. Moreover, the Statute permits the Court to consider accepting cases the UNSC refers to the ICC concerning non-member States that it considers to be of sufficient importance and gravity to be subjected to ICC jurisdiction. It still remains the decision of the ICC Prosecutor whether to initiate criminal prosecution. 

The email also suggests that the Court is able to arrest US troops independently. However, the ICC does not possess a police force to practically implement its decisions. Therefore, the Court relies on the cooperation of its member States in carrying out its arrest warrants. In calling on cooperation from States to do so, the Statute recognizes the importance of consular and diplomatic relations and of bilateral agreements between countries governing the treatment of foreign personnel present in a host country (so-called Status of Forces Agreements). Therefore, Article 98 of the Statute allows a member State to prefer these agreements over its obligations to cooperate with the ICC. 

More important, the Court may only issue arrest warrants and prosecute when a member State claiming jurisdiction is in fact unwilling or unable to do so effectively itself. This is based on the complementarity principle in Article 17 of the Rome Statute. Consequently, if the US subjected itself to the jurisdiction of the Court, the US judicial system would always maintain primacy over the jurisdiction of the ICC in prosecuting international crimes. As long as the US appropriately accounts for the crimes committed by its personnel, the Court will not interfere with the judicial proceedings of the US. It has been proven that US law is apt to adequately prosecute the crimes under the Rome Statute. Therefore, there is in theory no reason for the Court to interfere with the US’ judicial system as long as it is willing and able genuinely to carry out the investigation or prosecution itself. The statement in the email that there will be no legal protections guaranteed under US law after becoming a member State is therefore invalid. 

Even if a US citizen were to be the subject of criminal prosecution by the ICC because the US had failed to prosecute, the Rome Statute provides legal protections similar to US law with only minor differences in rules of evidence and trial by judges rather than jury. Thus, the statement in the email that there is no appeal from criminal indictments is also untrue, as the ICC allows for objections to charges and appeals to convictions in the different stages of the criminal process. 

Finally, it should be noted that the Court applies a ‘gravity threshold’ in assessing whether to prosecute or not. Consequently, the Court will only pursue cases of which it believes to be of such gravity that they ‘deeply shock the conscience of humanity’ and ‘threaten the peace, security and well-being of the world’. This means that only those cases of severe gravity will be considered by the Court and individuals will not be subjected to the Court’s jurisdiction arbitrarily. 

Read the analysis by Politifact of the chain email here.

Written by Laura van Esterik 

Friday, April 25, 2014

ICC summons eight uncooperative witnesses to appear before Court in Ruto and Sang case

On April 17, 2014, Trial Chamber V(A) approved the request of the Prosecutor in the Ruto and Sang case to subpoena all eight witnesses who recently withdrew from cooperation with the Court. The Chamber decided to allow the request by the Prosecutor, by compelling the attendance of these witnesses. With this decision the Court exercises its functions and fulfills its mandate effectively, which includes the power to subpoena witnesses. The Chamber concluded that the Government of Kenya must cooperate fully by serving the subpoenas to the witnesses, facilitating their compelled attendance at the trial, and ensuring their security until then.

This is the first decision by the Court to consider and allow subpoenas against uncooperative witnesses. By compelling these reluctant witnesses to appear before the Court, the Chamber heeded the initial objective of the Rome Statute State Parties “not to create an ICC that is in terms a substance, in truth a phantom” (ICC Press Release 4/17/14). Rather, the decision supports the aim of the State Parties to “create a court with every necessary competence, power, ability and capability”.

Moreover, some of these witnesses will potentially provide testimonies against Deputy President Ruto and in the trial against President Kenyatta. Therefore, the request for the subpoenas by the Prosecutor shows her determination to push firmly ahead with the Kenya cases despite any skepticism about the Court’s ability to try sitting heads of States. It also demonstrates the clear and unified strategy and tactics employed by the Court in carrying out its central purpose of trying high-ranked state officials.

The subpoenas constitute a strong message that the Court is determined and competent to pursue the prosecution of sitting heads of States, without conceding to their power to intimidate witnesses.  In this decision, the Court has established an important precedent in its determination to end the impunity of individuals involved in the commission of atrocities, regardless of their official status.  

Written by Laura van Esterik

Thursday, April 24, 2014

Remembering the Armenian Genocide

On this day in 1915, the government of the Ottoman Empire began a systematized policy of genocide. On that April morning, 300 Armenian leaders and intellectuals were rounded up for deportation and execution, while 5,000 of Istanbul’s poorer Armenians were simply butchered in the streets. By the end of the conflict, 1.5 million Armenians would be killed, through policies of forced marches, executions, and the brutal conditions in concentration camps. Through government-sanctioned brutality and mass murder, 60% of the total Armenian population in Turkey was wiped out in the space of two years. Though the international community knew about the atrocities being committed, in the midst of World War I no aid came to the innocent. With the ending of the war, international trials were attempted—the Britain-led Malta Trials—but never concluded. Turkish courts martial led to the sentencing and execution of a handful of the leaders of the genocide, but these proceedings were swift, without due process, and ultimately let many offenders walk free. 

We remember the Armenian genocide not only as an unimaginable singular tragedy, but as an act of unchecked violence which would lead to still greater loss of human life. On August 22nd, 1939, just prior to the invasion of Poland, Adolf Hitler advised the officers of the German armed forces to brutalize Eastern Europeans without fear of retribution. As he argued, “Wer redet heute noch von der Vernichtung der Armenier?” “Who still speaks today of the annihilation of the Armenians?” Hitler was wrong in this assumption; the members of the international community may not have spoken up against the atrocities committed in 1915, but they did not forget. When World War II came to an end, the Nuremberg Trials brought the weight of international justice down on the German perpetrators of the Holocaust, however imperfectly. 

This April, we also remember the 20th anniversary of the Rwandan Genocide, a reminder of the failures of the international community to protect the innocents of the world from their own governments. Though “never again” was the message behind the Nuremberg and Tokyo tribunals, and despite the best efforts of the United States, survivors of the Holocaust, and the UN General Assembly, Cold War hostilities made the possibility of setting up a permanent court impossible. The need for such a court became strikingly apparent as the century progressed, with further atrocities committed in Cambodia, Bosnia, Sierra Leone, East Timor, and the former Yugoslavia. The ad hoc tribunals established by the UN to try war criminals in Rwanda and Yugoslavia were effective at bringing criminals to justice; but as temporary courts, they were limited in scope, and did little to deter future crimes. 

The ad hoc tribunals led to the creation of the International Criminal Court, the first permanent international court capable of trying individuals for war crimes, crimes against humanity, and genocide. Unlike its predecessors, the ICC can try heads of state for ordering atrocities, thus removing the assurance of impunity that the Hitlers and Pol Pots of the world had long hid behind. In ending impunity, the ICC seeks to bring justice to its victims and deter future horrors. Many Armenians, themselves survivors or descendants of survivors, have ignored the ICC and its history. Under the Rome Statute, the Court cannot try crimes which took place before its inception in 2001—and thus, some Armenians say, it is of no relevance to them. It cannot bring the comfort of justice to the families of those who lost loved ones ninety-nine years ago. As today’s admission by the Turkish government of inhumane actions committed during WWI has shown, determining guilt is an important part of the healing process. Though an important first step, it further reminds us of the emotional importance of giving a crime its proper name.