ICC Rights Watch

ICC to Accept Amici Curiae for Jurisdictional Issue in Palestine

By: Andrew Kramer

Impunity Watch Staff Writer

Demonstrators outside the International Criminal Court in The Hague calling for the Court to prosecute the Israeli military. Photo Courtesy of the Guardian.

THE HAGUE, the Netherlands – On February 20, 2020, Pre-Trial Chamber I of the International Criminal Court (“ICC”) issued a decision granting the requests of 43 parties to submit amici curiae briefs regarding the Situation in the State of Palestine. The parties, representing nations, esteemed professors, human rights organizations, and legal associations, have until March 16, 2020 to file their observations.  

Amici curiae, literally “friends of the court,” are individuals or groups who are not parties to the case, but which have a strong interest in the matter.  Courts may authorize an individual or group to become an amicus curiae, and submit information or advice regarding issues in the case.

In the decision, the Court limited the scope of submissions only to the issue of the Court’s jurisdiction in Palestine, specifically the territories of the West Bank, East Jerusalem, and Gaza. At the root of the issue is whether Palestine is a sovereign state capable of granting the ICC jurisdiction over its territory. 

Although Palestine acceded to the Rome Statute, the ICC’s founding document, Palestine’s recognition as a sovereign has been fiercely contested.  While 138 of the 193 United Nations member states recognize the sovereign, the State of Palestine is not currently recognized by any North American country, Australia, and most of Western Europe.

Each of the seven countries which have requested leave to file an amicus brief indicated an intention to argue that the ICC does not have jurisdiction in Palestine.  Even countries which have previously recognized the State of Palestine, such as Brazil, doubt the Court’s jurisdiction there.  These countries reason that the ICC should only be involved in cases where jurisdiction is undisputed, and indicate an unwillingness to “politicize the Rome Statute.”  This stance has drawn criticism from many pro-Palestine individuals and organizations, which argue opponents to ICC jurisdiction are attempting to shield Israel from the possibility of international criminal prosecution for offenses allegedly committed on Palestinian territory.

This issue of jurisdiction regarding the Situation in Palestine could prove to be a pivotal decision for the development of the ICC.  A ruling in favor of jurisdiction would be an ambitious step for the Court in prosecuting human rights offenses, but may cause the Court to fall out of favor with the Western nations which largely comprise it.  Alternatively, while a ruling against ICC jurisdiction would be consistent with views of the nations who do not recognize Palestine, it could set the precedent that the ICC will only respond to the complaints of territories which are unequivocally sovereign.  This could leave individuals who have suffered human rights offenses in unrecognized territories without recourse.

For further information, please see:

International Criminal Court – Court Records: Situation in the State of Palestine – 20 Feb. 2020

International Criminal Court – Decision on Applications for Leave to File Observations – 20 Feb. 2020

International Criminal Court – Palestine: Preliminary Examination – 28 Jan. 2020

United Nations – Status of Palestine in the United Nations – 26 Nov. 2012

ICC to Allow Victim Participation in Ntaganda Appeal

By: Andrew Kramer

Impunity Watch Staff Writer

THE HAGUE, Netherlands – On February 13, 2020, the Appeals Chamber of the International Criminal Court (“ICC”) issued a decision authorizing the 2,129 victims who participated at the trial of Bosco Ntaganda to present their views and concerns regarding his appeal.  The victims, through their legal representatives, have 30 days to file their observations in respect to their personal interests in the issues on appeal.

Former Congolese military leader Bosco Ntaganda sitting before the International Criminal Court. Photo Courtesy of The Guardian.

Article 68(3) of the Rome Statute allows for victim participation at all stages of proceedings in the ICC, however it defers to the Court to determine what stages are appropriate for each case.  According to the Statute, victim participation must not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.

Victim participation is a crucial aspect of the ICC judicial process, however it carries great risk.  Participation gives victims a voice in proceedings, and allows the Court to gather a better understanding of the truth.  In the context of sentencing decisions, participation provides the Court with a firsthand account of the magnitude of a convict’s actions.  Because of this, victims may be subject to intimidation and violence. While the ICC does employ protective measures for witnesses and victims in the courtroom,  the witness protection program is limited. The Court often operates far from the home countries of witnesses and victims, and protection after proceedings largely relies on agreements between the ICC and national security programs.

After victim observations have been filed, Ntaganda and the Prosecutor will have an opportunity to respond to them, and the appellate process will move forward.  The Appellate Chamber of the ICC consists of a panel of five judges.  Among their responsibilities, the appeals judges may confirm, reverse, or amend a decision of guilt or innocence, ensure the sentence is proportionate to the crimes, and revise a final judgement of conviction or sentence if new evidence is later found.

Ntaganda is appealing the entirety of his conviction decision, as well as his sentence. On July 8, 2019, Trial Chamber VI convicted the former Congolese general of 18 counts of war crimes and crimes against humanity, committed in Ituri, Democratic Republic of the Congo, from 2002-2003.  He is only the fourth person to be convicted of international crimes by the ICC, and the first to be convicted of sexual slavery. On November 7, 2019, he was sentenced to a total of 30 years of imprisonment.

The Prosecution has also filed an appeal, asserting the Trial Chamber made errors of law which led to the acquittal of Ntaganda of criminal responsibility for attacks of a church in Sayo and a hospital in Mongbwalu.

For further information, please see:

International Criminal Court – Case Information Sheet: Situation in the Democratic Republic of the Congo – 7 Nov. 2019

International Criminal Court – Prosecution Notice of Appeal – 9 Sept. 2019

International Justice Monitor – Ntaganda to Appeal ICC Conviction – 11 July 2019

BBC – DR Congo’s Bosco Ntaganda Convicted of War Crimes by ICC – 8 July 2019 

Coalition for the International Criminal Court – Is Enough Being Done to Protect ICC Witnesses? – 18 May 2015

ICC Authorizes Investigation into Crimes Committed Against Rohingya People

By: Nadia Abed

Journal of Global Rights and Organizations, Associate Articles Editor

NAYPYIDAW, Myanmar — On November 14, 2019, pre-trial judges of the International Criminal Court (ICC) authorized an investigation into the alleged crimes committed against the Rohingya people of Myanmar that have taken place within the ICC’s jurisdiction. Through violence and coercion the Myanmar military and security forces have forced over one million Rohingya to be displaced from Myanmar to Bangladesh.

Rohingya refugee children in Bangladesh. Photo Courtesy of UNICEF.

Since 2017 the Myanmar military has attempted an ethnic cleansing of the Rohingya people. The military has continued to destroy over 300 villages where the Rohingya have settled, mostly by bulldozing or by fire. The military has also sexually violated and raped girls and women in villages or at checkpoints while in route to seek refuge in Bangladesh.

Refugees who arrive in Bangladesh report a continuance of abuse by Myanmar security forces. The reports include “killings, arson, enforced disappearances, extortion, severe restrictions on movement, and lack of food and heath care.” Additionally, refugees who return to Myanmar face arrest and even torture by authorities. 

On July 4, 2019, the ICC Prosecutor, Fatou Bensouda, requested that there be an investigation into the alleged crimes committed against the Rohingya people. The request sought to look into crimes against deportation, other inhumane acts, and persecution of the Rohingya people.

Additionally, the ICC received requests that the court investigate by thousands of alleged victims. The victims “believe that only justice and accountability can ensure that the perceived circle of violence and abuse comes to an end.”

The ICC’s decision to investigate also follows a November 11, 2019 submission by Gambia to the International Court of Justice (ICJ) alleging Myanmar has violated its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide. Gambia instituted proceedings against Myanmar before the ICJ after a Myanmar military-led crackdown. Gambia explains that this crackdown was intended to destroy the Rohingya Muslims as a group by the use of “mass murder, rape and other forms of sexual violence.”

The judges have reason to believe that there exists “widespread and/or systematic acts of violence [that] may have been committed that could qualify as the crimes against humanity of deportation across the Myanmar-Bangladesh border.” While Myanmar is not under the jurisdiction of the ICC, it may exercise jurisdiction when crimes and criminal conduct take place on territory of a State Party. Bangladesh is a State Party to the treaty; therefore the investigation extends to crimes committed on Bangladeshi territory.

The ICC also authorized the commencement of the investigation relating to any crime, which includes future crimes so long as it is within the ICC’s jurisdiction, committed in part of Bangladesh or another State Parties territory, and linked to the situation in the present decision.

The Office of the Prosecutor will start preparing and collecting evidence necessary to establish whether there are specific individuals who bear criminal responsibility. Once such evidence is deemed sufficient, the Prosecutor would then request an issuance of either summons to appear or arrest warrens for said individuals. The ICC and Prosecutors are confidence that the investigation is in the interests of justice for the Rohingya people.

For further information, please see:

UN News – ICC gives greenlight for probe into violent crimes against Rohingya – 15 Nov. 2019

International Criminal Court – ICC judges authorise opening of an investigation into the situation in Bangladesh/Myanmar – 14 Nov. 2019

International Court of Justice – The Republic of The Gambia institutes proceedings against the Republic of the Union of Myanmar and asks the Court to indicate provisional measures – 11 Nov. 2019

Human Rights Watch – Myanmar Events of 2018

The ICC’s Pre-Trial Chamber Confirms Al Hassan’s Charges

By: Madison Kenyon

Impunity Watch Staff Writer 

TIMBUKTU, Mali — On September 30, 2019, the Pre-Trial Chamber I of the International Criminal Court (“ICC”) issued a unanimous decision confirming the charges brought against Al Hassan Ag Abdoul Aziz (“Al Hassan”). These charges include both crimes against humanity and war crimes. This decision, however, merely commits Al Hassan to trial before the Trial Chamber, it does not necessarily confirm he is guilty.

Al Hassan sitting before the International Criminal Court. Photo courtesy of the ICC.

These charges arise from Al Hassan’s involvement with the Islamic militant group, Ansar Dine. This rebel group took control of Timbuktu in 2012 and enforced strict religious rules, including the ban of music and the destruction of non-Muslim religious sites. Al Hassan became the de facto chief of police and oversaw the enforcement of these rules. While serving as chief of police, Al Hassan allegedly also forced hundreds of women into sexual slavery.

The ICC issued a warrant for Al Hassan’s arrest on March 27, 2018 and he surrendered to the ICC four days later, on March 31. The hearing in front of the Pre-Trial Chamber occurred between July 8 and July 17, 2019. During the hearing, the prosecutor introduced the specific crimes Al Hassan is charged with, most of which stem from the widespread and systematic attack by armed groups against the civilian population of Timbuktu between April 1, 2012 and January 28, 2013, and include torture, rape, sexual slavery, cruel treatment and other inhumane acts, such as forced marriages and persecution. The prosecutor emphasized that due to Al Hassan’s actions and Ansar Dine’s control of Timbuktu, the civilians of Timbuktu “were subjected to a climate of constant fear and repression.”

Many nonprofit organizations are quite happy with the Pre-Trial Chamber’s decision in confirming these charges. For example, Melinda Reed, the Executive Director of Women’s Initiative for Gender, stated, “[This decision] is another step in a positive evolution. Every decision matters. We are writing the jurisprudence of the future now, so every case and every step is extremely important with regards to gender based and sexual crimes.” However, many organizations believe the ICC is not doing enough, and rather they criticize the court for going after Al Hassan because he is an intermediate leader of Ansar Dine and not a high-level person of this rebel group.

Although a trial date has not yet been set, the Pre-Trial Chamber has authorized 880 victims to participate in the trial and provide testimony against Al Hassan. Thus, many should expect a long and emotional trial.

For further information, please see: 

ICC – Al Hassan Case: ICC Pre-Trial Chamber I Confirms Charges of War Crimes and Crimes Against Humanity and Commits Suspect to Trial – 30 Sept. 2019

ICC – Situation in the Republic of Mali: The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud – 30 Sept. 2019

Reuters – International Criminal Court Puts Mali War Crimes Suspect to Trial – 30 Sept. 2019

Courthouse News Service – Timbuktu Man Fights War Crimes Charges in UN Criminal Court – 11 July 2019

 

The ICC Prosecutor’s Road to Justice for Afghanistan

By: Madison Kenyon 

Impunity Watch Staff Writer 

KABUL, Afghanistan — On September 17, 2019, the Pre-Trial Chamber II of the International Criminal Court (ICC) granted in part the request of the prosecutor for Leave to Appeal the Chamber’s earlier decision, which rejected the prosecutor’s request for authorization to investigate into the situation in the Islamic Republic of Afghanistan. The Pre-Trial Chamber originally rejected this authorization because it believed that an investigation at the current stage of the situation would not serve the interests of justice. Thus, on June 7, 2019, the prosecutor, Fatou Bensouda, filed for leave to appeal this decision.

International Criminal Court’s prosecutor, Fatou Bensouda. Photo courtesy of the ICC.

This procedural history stems from the preliminary examination, which began in 2006, by the Office of the Prosecutor of the situation in Afghanistan. Specifically, the prosecutor examined alleged crimes against humanity and war crimes that have occurred in Afghanistan since July 1, 2002, with particular focus on alleged crimes that occurred on May 1, 2003. The prosecutor asserts that the results of this examination prove the following: (1) crimes against humanity and war crimes by the Taliban and their affiliated network; (2) war crimes by the Afghan National Security Forces, and in particular, members of the National Directorate for Security and the Afghan National Police; (3) and war crimes by members of the United States’ armed forces and the United States Central Intelligence Agency (CIA). Overall, through this examination, the prosecutor determined that there is a reasonable basis to proceed with an investigation into this situation and thus made the request for authorization to investigate on November 20, 2017.

The prosecutor asserts that, at a minimum, the crimes against humanity that have been committed include: murder; imprisonment or other severe deprivation of physical liberty; and persecution against an identifiable group or collectivity on political and gender grounds. Along with this, the prosecutor states that the war crimes that have been committed include: murder; cruel treatment and torture; outrages upon personal dignity; intentionally directing attacks against civilians; intentionally directing attacks against personnel or objects involved in a humanitarian assistance or peacekeeping mission; internationally directing attacks against protected objects; rape and other forms of sexual violence; using, conscripting or enlisting children under the age of fifteen; and killing or wounding treacherously a combatant adversary. Further, regarding the United States’ involvement in the situation in Afghanistan, the prosecutor states that there is a reasonable basis to believe that members of the U.S. armed forces and members of the CIA committed acts of torture, cruel treatment, outrages upon personal dignity, and rape and sexual violence against conflict-related detainees in Afghanistan and other locations.

Although the Pre-Trial Chamber granted the prosecutor leave to appeal its earlier decision, this does not mean that it will also grant the prosecutor authorization to investigate further into the situation in Afghanistan. Due to the evidence produced by the prosecutor from her preliminary examination, if the Chamber again refuses to grant authorization to investigate further, it may leave many to wonder if the court is actually concerned about the “interests of justice” or if it is actually trying to avoid upsetting an international powerhouse like the United States.

For further information, please see: 

International Criminal Court – Afghanistan: ICC Pre-Trial Chamber II Authorises Prosecutor to Appeal Decision Refusing Investigation – 17 Sept. 2019

International Criminal Court – Situation in Afghanistan: Summary of the Prosecutor’s Request for Authorisation of an Investigation Pursuant to Article 15 – 20 Nov. 2017

International Criminal Court – The Prosecutor of the International Criminal Court, Fatou Bensouda, Requests Judicial Authorisation to Commence an Investigation into the Situation in the Islamic Republic of Afghanistan – 20 Nov. 2017