U.N. Security Council Briefing on Libya by ICC Prosecutor

 

Luis Moreno-Ocampo

   

U.N. Security Council

On May 16, 2012, the ICC’s Chief Prosecutor, Luis Moreno-Ocampo, briefed the U.N. Security Council on the status of the ICC’s investigation and prosecution of crimes committed in Libya since February 15, 2011. He did so because the Council on February 26, 2011, had referred this situation to the ICC for investigation and prosecution.

Mr. Moreno-Ocampo reported that his office has been cooperating with states, INTERPOL, NGO’s and others, including the separate U.N. Commission of Inquiry on Libya and the Libyan National Transitional Council (NTC).

The Prosecutor emphasized that the “intensity of the cooperation [between the ICC and the NTC] . . . is only increasing” and that the NTC had asked the ICC to postpone its investigation and prosecution of two individuals to enable Libya to prosecute them for the same crimes. The Prosecutor said that his office was well aware of the “primacy of national proceedings” under the Rome Statute and on June 2nd would submit his comments on the request to the Court.

The report also discussed the Prosecutor’s continuing investigation of gender crimes (rape of opponents), the alleged arbitrary arrests and enforced disappearances of presumed Gaddafi loyalist and the alleged killings, looting, property destruction and forced disappearances of suspected Gaddafi loyalists in the town of Tawergha.

In addition, the Prosecutor stated that his office had investigated alleged crimes by NATO forces, but that it had “no information to conclude that the NATO air strikes which may have resulted in civilian deaths and injury or damaged civilian objects were the result of the intentionally directing of attacks against the civilian population as such or against civilian objects.” Nor did the Prosecutor have any “information to suggest that [NATO] . . .  authorized the launching of strikes in the knowledge that such attacks would cause incidental loss of life or injury to civilians or damage to civilian objects which would be clearly excessive in relation to the concrete and directed overall military advantage anticipated.”

These conclusions regarding NATO were specifically welcomed by some of the NATO members on the Security Council (U.K., France and Germany). Russia and China, on the other hand, expressed concern that no charges had been brought against NATO leaders for some of their air strikes.

The Togo representative on the Council mentioned the need for greater cooperation between the ICC and African states and hoped that the recent visit to the African Union headquarters by the President of the ICC’s Assembly of States Parties “will enable a strengthening of ties so that the shared goal of combating the impunity of the perpetrators of heinous crime can be met.”

The most recent prior post on the ICC and Libya was on November 16, 2011 with nine comments thereto.

Netherlands Court Awards Monetary Damages to Palestinian for Libyan Torture

Dr. Ashraf Al Hajuj

This March a court in the Netherlands awarded 1 million euros to a Palestinian plaintiff against 12 Libyan officials for torture and inhumane treatment over eight years in a Libyan prison.

The plaintiff, Dr. Ashraf al-Hajuji, who now lives in the Netherlands, along with five Bulgarian nurses had been charged in Libya in 2000 with deliberately infecting over 400 children with HIV-AIDS. In 2004 they were convicted and sentenced to death by a firing squad.  A year later the convictions were overturned and a new trial was ordered after Bulgaria agreed to establish a fund for the families of the infected children. In December 2006, however, Dr. Hajuji and the nurses were again convicted and sentenced to death, but in July 2007 their sentences were commuted to life imprisonment after the children’s relatives agreed to accept compensation of $1 million per child. In 2007 the doctor and nurses were pardoned and released after French President Sarkozy negotiated with Col. Muammar Gaddafi . Gaddafi admitted they had suffered horrible torture in Libyan prisons.

This may be the first time another legal system has granted a civil monetary damages award to a foreigner due to violation of international human rights norms by other foreigners in a foreign country similar to the awards made by U.S. courts in civil lawsuits under the Alien Tort Statute.

In the meantime, Bulgarian prosecutors are still investigating what happened in Libya for a possible criminal prosecution of those responsible for the torture.

International Criminal Court: More Developments

This past week has seen several important developments for the International Criminal Court (ICC).

Libya. The two remaining subjects of arrest warrants have been apprehended in Libya by militia groups, but have not been turned over to the ICC, and the Court and the National Transitional Council have been engaged in a dispute as to whether they should be turned over or tried in Libya, which does not have a functioning judicial system.

On April 4th an ICC Pre-Trial Chamber rejected the second request by the National Transitional Council to postpone the ICC’s surrender request for Saif Al-Islam Gaddafi pending the completion of proceedings against him in Libya.  The Chamber, therefore, stated that Libya must (i) make its decision to grant the Surrender Request; (ii) afford Mr. Gaddafi the procedure described in Article 59 of the [Rome] Statute which necessarily follows from arresting a person subject to a surrender request; and (iii) start making arrangements in preparation for the surrender of Mr. Gaddafi to the Court without further ado.”

Article 59 provides the subject of an arrest warrant has the right to a prompt hearing before the competent national judicial authority to determine that the warrant applies to the individual, his/her arrest has been in accordance with proper process and his/her rights have been respected. There is also a right for the individual to apply for interim release, which in this case seems exceedingly unlikely to be granted by any authority.

Palestine. On April 3rd the Office of the Prosecutor released a report about its preliminary examination of the Situation in Palestine. It said the ICC’s jurisdiction is not based upon the principle of universal jurisdiction. Instead, the Rome Statute requires that the U.N. Security Council or a “State” provide jurisdiction by becoming a State Party or by making an ad hoc declaration accepting the Court’s jurisdiction.

Here, the statement said the Prosecutor was not the proper person to make a determination as to whether Palestine was a “State” for purposes of the ICC. That was a decision, the statement concluded, that had to be made by “relevant bodies of the [U.N.]” or by the ICC’s Assembly of States Parties.

Guatemala. On April 2nd the U.N. received from the Government of the Republic of Guatemala its instrument of accession to the Rome Statute. The Statute will enter into force for Guatemala on 1 July 2012, bringing to 121 the total number of States Parties, 27 of which are from Latin America and the Caribbean

 

The National Geographic Bee

For at least the last 24 years, the National Geographic Society has conducted the annual Geographic Bee in the U.S. to promote the study of geography.

This year the National Champion will receive a $25,000 college scholarship, a trip to the Galapagos Islands and lifetime membership in the Society. The 2nd and 3rd place national winners will receive $15,000 and $10,000 college scholarships respectively. This year’s national Bee will be held at the Society in Washington, D.C., May 22-24, 2012 and will be shown live on the National Geographic Channel on cable television.

Minnesota State Geographic BEE Contestants, 3/30/12

Each state has its own Bee to select its candidate for the national competition. This year’s state competitions were held on March 30th. Minnesota’s was at St. Cloud State University for 100 fourth through eighth graders who won their local schools’ competitions and who were the highest scorers on a written examination out a field of 500. Here was the makeup of this year’s 100 Minnesota contestants: fourth graders, 3; fifth graders, 6; sixth graders, 9; seventh graders, 23; and eighth graders, 59. Only 7 of the 100 were girls.

Minnesota Geographic BEE Final Round, 3/30/12

The Minnesota Bee started with four Preliminary Rounds. The 15 top scorers in those four sessions with perfect scores of 8 were then assembled for a Tiebreaker Round to select the top 10 individuals for the Final Round, two of whom were girls. These 10 were questioned, and eventually only two individuals were left for the Championship Round. More questions were addressed to the two contestants until one individual was eliminated, leaving the other as the state champion. The deciding question was “Name the Baltic country that replaced its currency (the kroon) in early 2011 with the Euro, becoming the most recent country to join the eurozone?” (Correct answer: Estonia.)

The Minnesota State Champion this year was Gopi Ramanathan, an 8th grader from Sartell Middle School; he also was the State Champion in 2010 and the second-place state winner in 2011. The second-place winner this year was William Bogenschultz, an 8th grader from Ramsey Junior High School in St. Paul; he was the State Champion in 2011 and the second-place state winner in 2010.

The procedures for the Bee are very detailed and very fair as were the questions.

For example, in the Preliminary Round that I observed, there were 21 contestants, who were randomly assigned numbers 1 through 21 and who were then questioned in that order. For each of eight rounds of questions after an initial practice round, the moderator announced the type of question that would be asked. For example, the first round was a set of questions asking which of two named states in the U.S. had a certain characteristic. She then asked questions, and the contestant had 15 seconds to answer. One of the questions in the first round was “Which state has the longer shoreline, Maryland or New Hampshire?” (Correct answer: Maryland.) The questions got more difficult with each passing round. In the eighth and final round the questions were about political geography, and one of the questions was “What southeastern Asian country near the Gulf of Tonkin was reunited in 1976, Myanmar or Vietnam?” (Correct answer: Vietnam.)

Similar procedures were followed in the Tiebreaker, Final and Championship Rounds with increasingly more difficult questions.

Before the start of questioning in the Final Round, a film “What will you do with geography?” was shown. It had brief comments by a number of people whose jobs required knowledge of different types of geographical subjects. I learned a lot about this topic from the film and thought it was answering a question that many of the contestants and their parents probably had.

Elliott Krohnke

I attended the Minnesota Bee because my grandson, Elliott, a sixth grader at Lakes International Language Academy (LILA) in the town of Forest Lake, was one of the 100 contestants. Afterwards Elliot said that this year’s competition would help him prepare for next year’s BEE. (Last Spring as a fifth grader, he prepared a presentation at his school about Libya and the NATO bombing,)

International Criminal Court: Other Recent Developments

We recently have reviewed the taking of office of five new judges of the International Criminal Court (ICC) and the Court’s first conviction in the case of Thomas Lubanga Diyalo from the Democratic Republic of the Congo. Now we look at some other recent ICC developments.

Central African Republic. The only case from the Central African Republic involves one defendant, Jean-Pierre Bemba Gombo, who is now on trial.

Darfur/Sudan. There are five cases involving seven defendants. Two are in ICC custody at The Hague and await trial. One had the charges dismissed. The other four, including Sudanese President Bashir, are at large.

Another of the at-large defendants is Abdel Raheem Muhammad, whose arrest warrant was just issued on March 1, 2012, for 41 counts of crimes against humanity and war crimes allegedly committed in the context of the situation in Darfur (Sudan). Mr. Hussein is currently Minister of National Defense of the Sudanese Government and former Minister of the Interior and former Sudanese President’s Special Representative in Darfur.

Democratic Republic of the Congo. There are four cases involving five defendants. One, Mr. Lubanga, was recently convicted. A case involving two other defendants is now on trial. The charges against another defendant were not confirmed by the Pre-Trial Chamber while the fifth defendant is at large.

After the conviction of Mr. Lubanga, the ICC Prosecutor said he plans to demand that DRC President Joseph Kabila hand over the defendant still at large. He is Bosco Ntaganda, who was promoted to DRC army general after being indicted with Lubanga by the ICC and who now faces new charges of mass rape and murder.

Ivory Coast (Côte d’Ivoire). There is only one case involving one defendant, Laurent Gbagbo (the former President of the country) for whom the hearing on the confirmation of charges is scheduled to start on 18 June 2012. He is in ICC custody at The Hague.

On February 22, 2012, the Pre-Trial Chamber decided to expand its authorization for the investigation in Côte d’Ivoire to include crimes within the jurisdiction of the Court allegedly committed between  September 19, 2002 and November 28, 2010. (The prior authorization only covered alleged crimes committed since November 28, 2010.)

The Chamber considered that the violent events in Côte d’Ivoire in this period (including the events since 28 November 2010) are to be treated as a single situation, in which an ongoing crisis involving a prolonged political dispute and power-struggle culminated in the events in relation to which the Chamber earlier authorized an investigation. Concentrating on the most significant of the samples of incidents, the Chamber concluded that there is reasonable basis to believe that, in the course of these events, acts of murder and rape that could amount to war crimes or crimes against humanity were committed.

In the country lawlessness and violence continues, and an U.N. agency recently determined that its security forces that have been accused of killings, arbitrary arrests and other human rights violations are acting alone and not under government orders.

Kenya. There are two Kenyan cases involving six defendants. On January 23, 2012, the Pre-Trial Chamber confirmed the charges against four of the defendants and committed them to trial while declining to confirm the charges against the other two.

The reaction to this decision in Kenya is reviewed elsewhere.

Libya. There is one case involving three defendants. One defendant, Muammar Mohammed Abu Minyar Gaddafi, is deceased, and his case has been terminated. The other two- Saif Al-Islam Gaddafi and Abdullah Al-Senussi–are charged with crimes against humanity (murder and persecution) allegedly committed across Libya from February 15, 2011 until at least 28 February 2011, through the State apparatus and Security Forces.

Al-Islam Gaddafi is in detention in Libya, which has been resisting ICC demands for his being surrendered to the Court. Al-Senussi recently was captured in Mauritania, and Libya is pressing that country to turn him over to Libyan authorities, rather than the ICC.  The legal issue at the heart of this dispute over where these two men will be tried is whether Libya has a functioning judicial system that can provide a due-process criminal proceeding.

Uganda. There is one case involving four defendant leaders of the Lord’s Resistance Army (LRA), including Joseph Kony. All four are at large.

The major recent development regarding the ICC’s case has happened outside the legal process. Earlier this month a 30-minute YouTube video “Kony 2012″ portrayed  Mr. Kony’s involvement with child soldiers and called for his arrest and surrender to the ICC for trial. This video became a world-wide phenomenon (“it went viral”) and the subject of much controversy.

This increased attention to Kony has caused the Ugandan military to intensify its efforts to find Kony and other LRA leaders.

In the meantime, the U.S., although not a member of the ICC, has reiterated its commitment of military resources to locate the LRA leaders. The Department of State recently declared that the U.S. has a “comprehensive, multi-year strategy [that] seeks to help the Governments of Uganda, CAR, the DRC, and South Sudan as well as the African Union and United Nations to mitigate and end the threat posed to civilians and regional stability by the LRA. The strategy outlines four key objectives for U.S. support: (1) the increased protection of civilians, (2) the apprehension or removal of Joseph Kony and senior LRA commanders from the battlefield, (3) the promotion of defections and support of disarmament, demobilization, and reintegration of remaining LRA fighters, and (4) the provision of continued humanitarian relief to affected communities.”

Conclusion

As evident from the above, all of the ICC’s current investigations and cases come from Africa, which has produced tension between the Court and the continent’s leaders. Following the recent elections of an African (Fatou Bensouda) as the Court’s new Prosecutor and another African (Chile Eboe Osuji) as one of its new judges, nearly 36 NGOs from 19 African countries recently sent a joint letter to the foreign ministers of the African countries that are parties to the ICC’s Rome Statute urging them to seek to improve African relations with the ICC. The letter’s specific recommendations to this end included the following:

• more meetings and “exchange of views” between officials of the African Union and the ICC;
• establishment by the African Union of an ICC liaison office in Addis Ababa, Ethiopia;
• fulfillment by states parties of their obligations under the ICC treaty to implement warrants and decisions of the court; and
• improvement of national justice systems so that they might pursue persons accused of the core crimes that the ICC now prosecutes – genocide, crimes against humanity, and war crimes – domestically, as envisaged by the ICC Statute’s complementarity principle.

International Criminal Court: Recent Developments in the ICC’s Libyan Investigation and Cases

International Criminal Court Building

Pursuant to referral by the U.N. Security Council, the ICC’s Office of the Prosecutor (OTP) has been investigating the situation in Libya since February 15, 2011, for possible crimes within the Court’s jurisdiction and has obtained arrest warrants for three Libyans for crimes against humanity: Muammar Mohammed Abu Minyar Qaddafi, Saif Al-Islam Qaddafi and Abdullah Al-Senussi.[1]

This August a revolt pushed Muammar Qaddafi from power, and on October 20th he was killed as rebels finally wrested control of his hometown of Surt. The country was formally declared liberated three days later, setting in motion the process of creating a new constitution and an elected government.

The death of Muammar Qaddafi has set in motion the formal procedures to withdraw his arrest warrant and terminate that case. But the other two suspects are still at large, and the OTP is continuing to pursue efforts to secure their arrests and to gather evidence on these alleged crimes. Indirect communications with the suspects have been conducted to seek their surrender to the Court.[2]

The OTP also is searching for the personal assets of the suspects for the potential benefit of the victims through reparations that could be awarded by the Court. The OTP had sent requests to Libya, ICC States Parties and the five U.N. Security Council members who are not States Parties (including the U.S.) to identify, trace, seize and freeze such assets.[3]

In addition, the OTP is investigating other possible Libyan crimes within the ICC’s jurisdiction, including the following:

• Alleged rape and other sexual violence by Qaddafi forces.
• The National Transitional Council’s security forces’ alleged mass arrests, detention and abuse of black Africans who are suspected of being pro-Qaddafi mercenaries.
• The National Transitional Council’s alleged mistreatment and torture of captured Qaddafi soldiers, suspected loyalists and alleged mercenaries.
• Alleged disproportionate use of force by all parties.
• Alleged indiscriminate attacks on civilians by NATO forces.[4]

U.N. Security Council

When the Prosecutor made his second report on Libya to the U.N. Security Council earlier this month, the U.S. Ambassador to the U.N., Susan Rice, complimented the Prosecutor “for his informative briefing and for his important contributions to laying the foundation for seeking the justice that Libyans so deserve.”  The Council’s referral of the Libyan situation to the Court, she also said, “represented an historic milestone in the fight against impunity.”[5]

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[1] Post: International Criminal Court and the Obama Administration (May 13, 2011); Post: International Criminal Court: Libya Investigation Status (May 8, 2011); Post: International Criminal Court: Three Libyan Arrest Warrants Sought (May 16, 2011); Post: International Criminal Court: Issuance of Libyan Arrest Warrants and Other Developments (June 27, 2011); Post: International Criminal Justice: Libya, Sudan, Rwanda and Serbia Developments (July 4, 2011); Post: International Criminal Court: Potential Arrests of Three Libyan Suspects (Aug. 22, 2011); Post: International Criminal Court: ICC Prosecutor Seeking INTERPOL Red Notices for Gaddafi (Sept. 9, 2011).

[2] ICC, Second Report of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant to UNSCR 1970 (2011) (Nov. 2, 2011); ICC Prosecutor, Statement to the United Nations Security Council on the situation in Libya, pursuant to UNSCR 1970 (2011) (Nov. 2, 2011).

[3]  Id.

[4] Id.; Post: International Criminal Court: Investigation of Gang-Rape in Libya (May 17, 2011).

[5] U.S. Mission to the U.N., Remarks by Ambassador Susan E. Rice, U.S. Permanent Representative to the United Nations, at a Security Council Meeting on Libya and the International Criminal Court (Nov. 2, 2011); U.N. Security Council Press Release, International Criminal Court Prosecutor Briefs Security Council on ‘Libya Case’ (Nov. 2, 2011).

 

 

International Criminal Court: Investigation of Ivory Coast Situation Is Authorized

On October 3, 2011, the Pre-Trial Chamber of the International Criminal Court (ICC) authorized the Prosecutor to conduct an investigation of the situation in the Ivory Coast (Cote d’Ivorie) for possible crimes against humanity and war crimes within the Court’s jurisdiction since November 28, 2010.[1]

Ivory Coast has been in turmoil since a coup in 1999 and a flawed 2000 election in which Laurent Gbagbo was elected president for a five-year term. Gbagbo, however, failed to hold an election in 2005 and was still in office when an election was held in November 2010. He was defeated in that election by Alassane Outtara, but Gbagbo refused to turn over power to Ouattara. Thereafter there was armed conflict between supporters of the two men that is the focus of the now authorized ICC investigation. In that conflict approximately 3,000 people were killed, and 500,000 people fled into neighboring countries. In April 2011 Gbagbo was forcibly removed from office and arrested with the help of French and U.N. military forces (In May Ouattara was formally inaugurated as president.) This August, Gbagbo and his wife were charged with looting, armed robbery and embezzlement by the country’s prosecutor.[2]

The Ivory Coast situation is an excellent illustration of the checks and balances within the ICC. One of the ways an investigation can be started by the ICC Prosecutor is on his own initiative (proprio motu), but that can happen if and only if a three-judge Pre-Trial Chamber authorizes the investigation, which is what just happened with the Ivory Coast.[3]

Such authorization is not automatic and cannot be presumed.

The Pre-Trial Chamber’s decision to authorize the Ivory Coast investigation is an 86-page careful analysis of the many legal conditions that must be satisfied for such an authorization. It concludes with a statement that one of the three judges will be filing a separate and partially dissenting opinion.[4]

The first condition was ICC jurisdiction over the Ivory Coast. It is not a State Party to the Court’s Rome Statute, but in April 2003 it submitted a declaration to the Court that the country accepted ICC jurisdiction for crimes on its territory since September 19, 2002 and for an unspecified period of time thereafter. The validity of this declaration was confirmed in a December 2010 letter from President-elect Ouattara, who pledged full cooperation with the Court in particular for crimes after March 2004. In addition, in May 2011 President Ouattara sent a letter to the Court in which he said that he believed crimes within the Court’s jurisdiction had been committed since the elections of 2010 and requested the ICC’s assistance in prosecuting perpetrators of such crimes. Therefore, the Pre-Trial Chamber concluded that the Court had jurisdiction over the situation in the Ivory Coast.[5]

The Pre-Trial Chamber then considered the materials regarding possible crimes committed by the pro-Gbagbo forces and concluded that there was reason to believe that they had committed crimes against humanity by murder, rape, arbitrary arrest and detention, enforced disappearances and torture and other inhumane acts.[6] The pro-Gbagbo forces also had been shown possibly to have committed war crimes in an armed conflict not of an international character by murders, intentional attacks on civilian populations and U.N. personnel, rape and sexual violence.[7]

The Pre-Trial Chamber also considered whether pro-Ouattara forces had committed similar crimes and concluded that there was reason to believe that they had. Their possible crimes against humanity were murder, rape and imprisonment and deprivation of liberty. Their possible war crimes were murder, rape, pillage, torture and other cruel treatment.[8]

The Pre-Trial Chamber emphasized that the authorization included continuing crimes after the Prosecutor’s application to the Chamber on June 23, 2011.[9] The Prosecutor also was asked in one month to submit additional materials for possible crimes in the Ivory Coast from 2002 (when the ICC commenced operations) through 2010.[10]

Last month President Ouattara appointed 11 people to the country’s new Commission on Dialogue, Truth and Reconciliation. Although modeled after South Africa’s Truth and Reconciliation Commission, it is unclear if it will be issuing amnesties and pardons.[11]

This Commission’s goals might be seen as conflicting with the ICC’s investigation and possible prosecution of people for committing crimes against humanity and war crimes in the country, but immediately after the Pre-Trial Chamber’s authorization of the ICC investigation, its Prosecutor stated that the investigation “should be part of national and international efforts to prevent future crimes in [the country" and that the Commission "would be a central piece of such efforts. National authorities could define other activities to help the victims, ensure peaceful coexistence and prevent future violence. Promoting justice and reconciliation . . . must be our common endeavour."[12]

This is the Court’s seventh investigation, all from Africa. Three of the others are by submissions from States Parties: Uganda, Democratic Republic of Congo and the Central African Republic. Two are from submissions from the U.N. Security Council: Darfur (Sudan) and Libya. The other, Kenya, was another Pre-Trial Chamber approval of an investigation initiated by the Prosecutor.[13]

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[1] Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situtation in the Republic of Cote d’Ivorie, (ICC Pre-Trial Ch. Oct. 3, 2011); ICC, Press Release: ICC Pre-Trial Chamber III authorizes the Prosecutor to launch an investigation in Cote d’Ivorie (Oct. 3, 2011); Assoc. Press, Int’l Court IJs Ivory Coast Violence Probe, N.Y. Times (Oct. 3, 2011); Post: International Criminal Court: Prosecutor Seeks To Open Investigation of Ivory Coast (May 23, 2011).

[2] Id.; Nossiter, Sayare & Bukefsky, Leader’s Arrest in Ivory Coast Ends Standoff, N.Y. Times (April 11, 2011); BBC, Ivory Coast reconciliation commission launched, BBC News (Sept. 6, 2011).

[3] Post: International Criminal Court: Introduction (April 28, 2011); Post: International Criminal Court: Prosecutor Seeks To Open Investigation of Ivory Coast (May 23, 2011).

[4] Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situtation in the Republic of Cote d’Ivorie, (ICC Pre-Trial Ch. Oct. 3, 2011).

[5]  Id. ¶¶ 10-15.

[6]  Id. ¶¶ 51-91.

[7]   Id. ¶¶ 127-153.

[8]  Id. ¶¶ 95-116, 157-172.

[9]  Id. ¶¶ 3, 179.

[10]  Id. ¶ 213.

[11]  BBC, Ivory Coast reconciliation commission launched, BBC News (Sept. 6, 2011);BBC, Ivory Coast gets truth and reconciliation commission, BBC News (Sept. 28, 2001);Ivory Coast launches reconciliation panel,al Jazeera.net (Sept. 28, 2011).

[12] ICC, Press Release: ICC Prosecutor: This decision ensures justice for victims in Cote d’Ivoire. I will conduct effective, independent and impartial investigations, (Oct. 3, 2011).

[13]  Post: International Criminal Court: Investigations and Prosecutions (April 28, 2011).

International Criminal Court: INTERPOL Issues Red Notice for Gaddafi

 On September 8th the ICC Prosecutor announced that he is requesting INTERPOL to issue a “Red Notice” to arrest Muammar Gaddafi for the alleged crimes against humanity of murder and persecution that have been charged by the ICC. The Prosecutor also is seeking such Red Notices for the other two Libyans facing ICC charges.[1] On September 9th INTERPOL isssued these Red Notices. (Nordland, INTERPOL Issues Qaddafi Arrest Warrant as More Libyan Officials Flee, N.Y. Times (Sept. 9, 2001).)

The ICC Press Release says that an “INTERPOL Red Notice seeks the provisional arrest of a wanted person with a view to extradition or surrender to an international court based on an arrest warrant or court decision.” Such notices go to all 188 countries that are members of INTERPOL.

This statement also stands as an implicit rebuke to the recent erroneous decision of El Salvador’s Supreme Court that a Red Notice only called for information about the location of individuals named in such notices, not their arrests.[2]

In another ICC development, on August 30, 2011, the Philippines deposited its instrument of ratification of the Rome Statute with the U.N. Secretary General. It will become the 117th State Party to the Statute.[3]

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[1] ICC Press Release, ICC Prosecutor Requesting INTERPOL Red Notice for Gaddafi (Sept. 8, 2011). See Post: International Criminal Court and the Obama Administration (May 13, 2011); Post: International Criminal Court: Libya Investigation Status (May 8, 2011); Post: International Criminal Court: Three Libyan Arrest Warrants Sought (May 16, 2011); Post: International Criminal Court: Issuance of Libyan Arrest Warrants and Other Developments (June 27, 2011); Post: International Criminal Justice: Libya, Sudan, Rwanda and Serbia Developments (July 4, 2011); Post: International Criminal Court: Possible Arrests of Three Libyan Suspects (Aug. 22, 2011).

[2] Post: International Criminal Justice: Developments in Spanish Court’s Case Regarding the Salvadoran Murders of the Jesuit Priests (Aug. 26, 2011); Comment [to that Post]: Salvadoran Supreme Court’s Decision on INTERPOL RED NOTICE Was Erroneous (Aug. 28, 2011).

[3] ICC Press Release, The Philippines becomes the 117th State to join the Rome Statute system (Aug. 30, 2011).

International Criminal Court: Potential Arrests of Three Libyan Suspects

As previously reported, the International Criminal Court (ICC), pursuant to U.N. Security Council authorization, has been investigating the situation in Libya and already has issued three arrest warrants, including Muammar Gaddafi.[1]

Recent gains by Libyan rebels have reportedly resulted in the arrest of one of the three suspects wanted by the ICC, Saif Al-Islam Gaddafi. Today the ICC Prosecutor spoke with officials of the Libyan Transitional National Council (TNC) and emphasized his mandate to investigate and prosecute those charged with crimes by the ICC. They discussed the possibility of the apprehension and surrender to the ICC of the three suspects as well as the possibility of their being prosecuted and tried in Libya.[2]

The ICC seeks to encourage national judicial systems’ investigating and prosecuting individuals accused of genocide, crimes against humanity and war crimes under what is known as the principle of complementarity. For this principle to be invoked in the Libyan situation, the ICC itself would have to conclude, under Article 17 of its Rome Statute, that Libya had a functioning national judicial system that was able to provide principles of due process recognized by international law and that any proceedings against the three or other suspects were not undertaken to shield them from criminal responsibility or with the intent not to bring them to justice.

In this still developing situation, it is conceivable that the U.N. Security Council, pursuant to Article 16 of the Rome Statute, could adopt a resolution under Chapter VII of the U.N. Charter directing the ICC to suspend proceedings for renewable periods of 12 months. This scenario seems unlikely at this time.

The United States could play an important role in urging the relevant officials to transfer any Libyan suspects to the ICC. While President Obama did not mention the ICC in his statement released earlier today, he did indicate that “we will continue to work with our allies and partners in the international community to protect the people of Libya, and to support a peaceful transition to democracy.” [3] The unanimous referral of the Libya situation to the ICC by the Security Council, including the United States, was an important action by the international community to protect the people of Libya and one which the U.S. has continued to support since the referral.

I, therefore, urge others to sign a petition asking President Obama to assist the ICC arrests of Col. Gaddafi and the Libya suspects: http://www.change.org/petitions/ask-president-obama-to-help-the-international-criminal-court-arrest-gaddafi. Hearing from the U.S. supporters of the ICC will help President Obama understand the importance of international justice for the serious alleged crimes in Libya and to build international support for ensuring that no suspects escape justice.

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[1] See Post: The International Criminal Court: Investigations and Prosecutions (April 28, 2011); Post: The International Criminal Court: Libya Investigation Status (May 8, 2011); Post: The International Criminal Court and the Obama Administration (May 13, 2011); Post: The International Criminal Court: Three Libyan Arrest Warrants Sought (May 16, 2011); Post: The International Criminal Court: Investigation of Gand-Rape in Libya (May 17, 2011); Post: The International Criminal Court: Issuance of Three Libyan Arrest Warrants and Other Developments (June27, 2011); Post: International Criminal Justice: Libya, Sudan, Rwanda and Serbia Developments (July 4, 2011).

 

[2] ICC Press Release, ICC Prosecutor Talks to Transitional National Council in Libya (Aug. 22, 2011), www.icc-cpi.int.

 

[3] Statement of President Barack Obama on Libya (Aug. 22, 2011), http://www.whitehouse.gov/the-press-office/2011/08/22/statement-president-barack-obama-libya.

International Criminal Justice: Libya, Sudan, Kenya, Rwanda and Serbia Developments

Over the last several weeks there have been important developments regarding the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Court (ICC).

ICTR.

As we already have seen, the ICTR is winding down to complete its work by July 1, 2012, and one of the ways it is doing so is referring some cases to national judicial systems.[1] On June 26th, the ICTR referred one of its cases to the Rwandan national courts, the first time it had ever done so. It did so because there was evidence that Rwanda had made material changes to its laws and now had the capacity and intention to prosecute such cases in accordance with international standards of fair trial and human rights. The ICTR suggested that the African Commission on Human and Peoples Rights monitor the proceedings and notify the ICTR of any problems for its possible revocation of the referral.[2]

On June 24th the ICTR announced the conviction of six defendants in the Butare case for genocide and related crimes. They received sentences from 25 years to life.[3]

Finally the recently arrested Bernard Munyagishari made his initial appearance before the ICTR and pleaded not guilty to charges of genocide, conspiracy to commit genocide and crimes against humanity (murder and rape) of Tutsi women.[4]

ICTY.

On June 29th the U.N. Security Council unanimously adopted Resolution 1993 to extend the terms of office of the ICTY judges until December 31, 2012. It did so to facilitate the ICTY’s completing the trial of all of its pending prosecutions. The resolution also called for all States, especially the States of the former Yugoslavia, to intensify cooperation with, and assistance to, the ICTY, including the arrest of Goran Hadzic.[5]

On July 4th Ratko Mladic made his initial appearance before the ICTY and refused to enter pleas  because he said he was not represented by lawyers of his choice. After he had repeatedly and loudly interrupted the proceedings, the judges ordered him removed from the courtroom and thereafter entered pleas of not guilty on his behalf. He faces charges of genocide and war crimes.[6]

ICC

There have been significant developments regarding the Libyan, Sudan (Darfur) and Kenyan  investigations and prosecutions by the ICC. Many of these developments involve the ICC’s tense relations with the African Union (AU) as will be seen below.

Libya. As previously reported, the ICC on June 27th authorized the issuance of arrest warrants for Colonel Muammar Gadhafi and two others for crimes against humanity in Libya since February 15, 2011. The ICC Prosecutor has emphasized the importance and difficulty of making the actual arrests of these three individuals.[7]

On July 2nd the execution of these ICC arrest warrants was made even more difficult by a resolution adopted by the AU. It recommended that its 53 member-states “not cooperate in the execution of the arrest warrant” for Colonel Gadhafi.  This warrant, the AU said, “seriously complicates the efforts aimed at finding a negotiated political solution to the crisis in Libya which will also address, in a mutually-reinforcing way, issues relating to impunity and reconciliation.” This decision increases the chances for Gadhafi to avoid ICC prosecution by obtaining refuge in another African country. The AU also requested the U.N. Security Council to exercise its authority under Article 16 of the ICC’s Rome Statute to defer or stay the ICC’s investigations and prosecutions regarding Libya for one year.[8]

This AU resolution conflicts with the obligations of the 32 African states that are parties to the ICC’s Rome Statute. Its Article 86 obligates them to “cooperate fully with the Court in its investigation and prosecution of crimes within [its] jurisdiction.”

Sudan. Pursuant to U.N. Security Council referral, the ICC Prosecutor has been conducting investigations and prosecutions regarding the Sudan (Darfur). One of the prosecutions has been of the Sudanese President Bashir.[9]

The just noted inherent difficulties of enforcing ICC arrest warrants has also been in the news with respect to the recent trip to China by President Bashir.[10] His earlier trips to other African countries (Chad, Kenya and Djibouti) that are ICC States Parties have been defended by the AU as consistent with these countries’ obligations under the AU’s Constitutive Act and Article 98 of the Rome Statute as well as their efforts to promote peace and stability in their regions.[11]

In the meantime, violence continues in Sudan.[12] The AU Summit issued nice-sounding words about the need for a peaceful transition in Sudan. This included a more general request to the U.N. Security Council to defer all ICC investigations and prosecutions regarding Sudan for one year. [13]

Kenya. As previously reported, the ICC Pre-Trial Chamber on March 31, 2010, authorized the Prosecutor to commence an investigation of post-election violence in Kenya in 2007-2008, and on March 8, 2011, that Chamber authorized the issuance of six arrest summonses.[14]

At its recent Summit, the AU stressed the need to pursue all efforts to have the U.N. Security Council use its authority under Article 16 of the Rome Statute to defer or stay the ICC’s investigations and prosecutions regarding Kenya for one year. Such a deferral, the AU stated, would enable an investigation and prosecution by a reformed Kenyan judiciary in accordance with the ICC’s principle of complementarity. [15]

U.N. Security Council.

As we have just seen, all of the current ICC investigations and prosecutions come from Africa, two upon referrals by the U.N. Security Council and all of which potentially are subject to deferral by the Council. Thus, it is not surprising that the AU at its recent Summit meeting re-emphasized its desire for reform of the U.N. Security Council in order “to correct . . . the historical injustice done to the [African] continent, which continues to be unrepresented in the permanent category and under-represented in the non-permanent category of the . . . [Council].”[16]

To this end, the AU reaffirmed its Ezulwini Consensus on proposed U.N. reforms. With respect to the Security Council, this Consensus called for Africa to have two permanent and five non-permanent members on a reformed Council as chosen by the AU.[17]

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[1] Post: International Criminal Justice: Winding Down Two Ad Hoc Criminal Tribunals (June 18, 2011).

[2] ICTR Press Release, Case of Jean Uwinkindi Referred for Trial to the Republic of Rwanda (June 28, 2011); Reuters, U.N. Court Refers Genocide Case to Rwanda, N.Y. Times (June 28, 2011). Uwinkindi is a former Pentecostal pastor who has been accused of genocide, conspiracy to commit genocide and crimes against humanity (extermination) against the Tutsi people. (Id.)

[3] ICTR Press Release, Butare Judgment Released (June 24, 2011)

[4] ICTR Press Release, Bernard Munyagishari Pleads Not Guilty (June 20, 2011).

[5]  U.N. Security Council Press Release, Terms of 17 Judges with [ICTY] Extended (June 29, 2011); ICTY Press Release, Security Council extends Terms of ICTY Judges and Calls for Increased Cooperation with the Tribunal (June 30, 2011).

[6] Reuters, Mladic to ‘boycott war crimes hearing,’ Guardian (July 4, 2011); Simons & Cowell, Hague Judge Orders Mladic Removed From Courtroom, N.Y. Times (July 4, 2011). See Post: International Criminal Justice: Mladic To Face Charges at ICTY (May 27, 2011); Post: International Criminal Justice: Mladic Update (June 1, 2011); Post: International Criminal Justice: Winding Down Two Ad Hoc Criminal Tribunals (June 18, 2011).

[7]  See Post: The International  Criminal Court: Introduction (April 28, 2011); Post: The International  Criminal Court’s Investigations and Prosecutions (April 28, 2011); Post: The International  Criminal Court: Libya Investigation Status (May 8, 2011); Post: The International  Criminal Court: Investigation of Gang-Rape in Libya (May 17, 2011); Post: The International  Criminal Court: Issuance of Libyan Arrest Warrants and Other Developments (June 27, 2011); Stephen, Muammar Gaddafi war crimes files revealed, Guardian (June 18, 2011); Fahim, Claims of Wartime Rapes Unsettle and Divide Libyans, N.Y. Times (June 19, 2011).

[8]  Associated Press, AU Members Agree to Disregard ICC Gadhafi Warrant, N.Y. Times (July 2, 2011); Associated Press, African Union calls on member states to disregard ICC arrest warrant against Libya’s Gadhafi, Wash. Post (July 2, 2011); Amann, AU v. ICC, yet another round (July 3, 2011), http://intlawgrrls.blogspot.com/2011/07/au-v-icc-yet-another-round.html; AU Comm’n, Decisions adopted during the 17th African Union Summit (July 4, 2011), www.starafrica.com/en/news. Less than three weeks earlier the AU told the U.N. Security Council that the AU will not hide from its responsibility to help resolve the Libyan conflict. (U.N. Security Council, Press Release: African Union Will Never Hide from Responsibilities in Resolving Libyan Conflict (June 15, 2011).

[9]  See Post: The International  Criminal Court: Introduction (April 28, 2011); Post: The International  Criminal Court’s Investigations and Prosecutions (April 28, 2011).

[10] Post: International Criminal Court: ICC Prosecutor Updates U.N. Security Council on Sudan (Darfur) (June 17, 2011); Higgins, Oil interests tie China to Sudan leader Bashir, even as he faces genocide charges, Wash. Post (June 22, 2011); Associated Press, Embattled Sudan president visits chief diplomatic backer, China, Wash. Post (June 29, 2011); Wines, Sudanese Leader Is Welcomed in Visit to China (June 29, 2011); Associated Press, UN: China Should Have Arrested Al-Bashir, N.Y. Times (June 30, 2011) (U.N. High Commissioner for Human Rights).

[11] AU Comm’n, Decisions adopted during the 17th African Union Summit (July 4, 2011), www.starafrica.com/en/news.

[12]  Post: International Criminal Court: ICC Prosecutor Updates U.N. Security Council on Sudan (Darfur) (June 17, 2011); Gettleman, Sudan to Pull Troops From Abyei and Allow Peacekeepers, N.Y. Times (June 20, 2011); Kron, Ethnic Killings by Army Reported in Sudanese Mountains, N.Y. Times (June 20, 2011); Gettleman, As Secesssion Nears, Sudan Steps Up Drive to Stop Rebels, N.Y. Times (June 20, 2011); Bilefsky, U.N. Approves Troop Deployment in Sudan, N.Y. Times (June 27, 2011); Gettleman, Sudan Signs Pact With Opposition Forces, N.Y. Times (June 28, 2011); Reuters, Two Sudans to Create a Buffer Zone, N.Y. Times (June 29, 2011); Kristof, Yet Again in Sudan (June 29, 2011)(Sudanese government conducting vicious campaign of ethnic cleansing, murder and rape in Nuba Mountains); Gettleman, Another Area Girds for Revolt as Sudan Approaches a Split, N.Y. Times (June 30, 2011); Reuters, Sudan President [Bashir] vows to Fight, N.Y. Times (July 1, 2011); Gettleman, Sudanese Struggle to Survive Endless Bombings Aimed to Quell Rebels, N.Y. Times (July 3, 2011); Fagotto, Sudan partition leaves rebel Nuba region feeling betrayed, Guardian (July 3, 2011); Reuters, North and South Sudan Delay Talks Until After Split, N.Y. Times (July 4, 2011); Associated Press, Sudan President to Speak at S. Sudan Independence, N.Y. times (July 4, 2011).

[13] AU Comm’n, Decisions adopted during the 17th African Union Summit (July 4, 2011), www.starafrica.com/en/news.

[14]  Post: The International Criminal Court’s Investigations and Prosecutions (April 28, 2011).

[15] AU Comm’n, Decisions adopted during the 17th African Union Summit (July 4, 2011), www.starafrica.com/en/news.

[16]  Id.

[17] Au, Elzwini Consensus  (March 8, 2005).