L367 12:03 The ICC - Prof. Rachel Cichowski PDF

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Prof. Rachel Cichowski...

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L367 12/03 The ICC Announcement: – New class next quarter; research paper can get worked on later and published ● An international court set up to prosecute major human rights

crimes ○ Has existed since 2002 ○ Some crimes, by virtue of their scale, require response from the international community. This is the motivation and philosophy behind creating an international criminal court. ○ Many crimes often go unpunished. When crimes are committed by a state, the state will not punish those crimes. So we have a problem of IMPUNITY; the greatest crimes do not get punished. So the CC is an attempt to punish these crimes. There is a need for an institution to address this problem; ICC is that institution. ● Rests on historical models (precursors) ○ Nuremberg Tribunal: created after WWII to address crimes committed by Nazi government (1945-1946); USSR, Britain, France, US said that they were not just going to execute the perpetrators, but they would also hold a trial: they would give the defendants a chance to defend themselves, and there will be a panel of judges. ○ Tokyo Tribunal: counterpart to Nuremberg Tribunal to judge in Asia (1946-1948) ○ ICTY and ICTR: The international response was seriously inadequate in many ways, but these international tribunals were created by the UNSC. They decided to set up international courts for each of these two genocides, and so we have ICTY and ICTR. Several decades long; several people found guilty and punished, some acquitted. An important case law was established in the process. HR people said these courts were a step forward, but we can improve the situation by creating a court that warns people in advance that terrible crimes will be punished. The ICTY and ICTR were created too late, after the

fact; isn't it better to have a court that can deter future crimes? That was the impetus to create an international criminal court. ○ Hybrid Courts: (hybrid tribunals): East Timor, Kosovo, Sierra Leone. ● Treaty text adopted in Rome (7/17/1998) ○ Scholars initially thought it was not possible; they said that

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states would not allow this, that the resistance of states would be too great, and would not want to be held accountable for war crimes. Nonetheless, treaty was adopted, and nations were invited to sign and ratify the treaty. The treaty said that the Court would be created when 60 nations signed the treaty, and it happened much more quickly than people thought. Rome Statute: refers to the international treaty (ICC treaty) As of today, there are 122 nations that have ratified the Rome Statute.

● Map: Color Coded ○ Europe: almost all state parties ○ Africa: some not ratified, some non-signatory ○ Asia: Almost all non-state party, non-signatory ○ US and Russia: withdrew its signature ○ Philippines: very hostile to ICC and human rights, so withdrew its

membership (especially after ICC prosecutor started investigating the president) ● Crimes that fall under jurisdiction of the ICC ○ Genocide, Crimes against Humanity, War Crimes, Aggression

(new thing as of 2017) ○ PRINCIPLE OF COMPLEMENTARITY: The Court will not initiate

prosecution unless the state of primary jurisdiction proves itself "unwilling or unable" to launch criminal proceedings (article 17). ICC expects nation-states to prosecute HR crimes, and will only take action if state is unable or unwilling to do so. DEFINITIONS

● Genocide: acts such as killing, serious assault, and starvation when

"committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such." Violent acts with intent to destroy group. Even if you kill ONE person, you can be prosecuted for genocide if it is committed with intent to destroy a group. ● Crimes against Humanity: Acts such as murder, enslavement, deportation, arbitrary imprisonment, rape, torture, persecution, and apartheid "when committed as a part of a widespread or systematic attack directed against any civilian population." Violent acts when committed in part of a larger plan and systematic attack against civilian population. As long as it is a PART OF a LARGER PLAN (even if you kill ONE person, it still counts). ● War Crimes: serious violations of the law of war committed in international or non-international armed conflict. Killing prisoners, torture, targeting civilians, etc. Militaries of most nations take war crimes seriously, and armed forces are taught not to engage in war crimes, and also to refuse orders if they are ordered to carry out war crimes. ● Aggression: "the use of armed force by a state against the sovereignty, territorial integrity, or political independence of another state, or in any other manner inconsistent with the Charter of gate United Nations" in a manner that "by its character, gravity and scale, constitutes a manifest violation fo the Charter of the United Nations." ORGANIZATION OF THE COURT ● 18 judges (who meet in smaller groups to hear particular cases) ○ Most ordinary trials are held before a panel of three judges; arrange themselves into pre-trial, trial, and appeals chamber ● Prosecutor and staff: prosecutor puts together argument that individual is guilty of crime, and also has decision-making power over which crimes to investigate and prosecute. ○ Luis Moreno Ocampo (2003-2012) ○ Fatou Bensouda (2012-2021) ● Assembly of States Parties (going on right now) ○ The management oversight and legislative body of the ICC ○ Meets once a year (and under special situations); tasked with

providing oversight to the president, the prosecutor, and registrar (basically runs the logistics and administration of the court) HOW IS CRIMINAL INVESTIGATION BEGUN? Three possible routes i. At the request of a state party (article 14): State can go to ICC and request an investigation (this is the most common route) i. Most of the cases are actually self-referrals (government goes to ICC and requests investigation into their own country) j. Prosecutor initiates at their own discretion (Article 15); before prosecutor can do this, she needs to get permission from a pre-trial chamber of judges. k. At the request of the Security Council of UN (article 13) i. 15 members, 10 rotate in and out (5 have veto: Russia, China, US, Britain, France); UN is a "lopsided" organization; some are more powerful. OVER WHICH PERSONS DOES THE ICC EXERCISE JURISDICTION? (Related to WHY US does not want to be party to ICC) ● In cases initiated by a member state of by the prosecutor, jurisdiction is limited to citizens of member-states and individuals accused of committing crimes on the territory of member states. ● If the UNSC requests an investigation, those restrictions do not apply, and point to any individual on the world, and the ICC is authorized to investigate it. OTHER LEGAL PRINCIPLES OBSERVED BY THE ICC ● The ICC only has jurisdiction over crimes committed during its existence; it's jurisdiction is only valid for crimes committed after its creation (2002). Even the Security Council cannot ask Court to prosecute past crimes (like Vietnam war crimes, etc). ● Treaty spells out due process trial procedures and protections for suspects / defendants ● Court is also authorized to provide compensation to victims; trials also decide whether individuals and victims are owed compensation, and there is a "victim fund" to provide victims restitution payments. ● There are rules around immunity: no immunity for individuals based

on their (high ranking officials) official status; sometimes in international law and domestic law, there is a sort of immunity for heads of state or whatever, but ICC does not recognize any such immunity. ● No immunity for individuals who say they were "merely following orders." ● Command Responsibility: idea that if you are a military commander, you are responsible for crimes committed by your subordinates if you knew those crimes were taking place and you did nothing to stop them. ○ What if you are following orders and you fear the consequences if you refuse? This can be used as a defense; if you fear you will be punish if you do not commit crimes, this can help reduce your punishment. SITUATIONS UNDER FORMAL INVESTIGATION BY THE ICC (cases that have been referred by state party, initiated by prosecutor with authorization, or referred by UNSC) ● 12 cases so far: Democratic Republic of Congo (civil war and atrocities), Uganda, Sudan (Darfur; UNSC referral), Central African Republic (2 different cases; two civil wars), Kenya, Libya (UNSC referral), Cote deIvoire, Mali, Georgia, Burundi, Bangladesh and Myanmar (crimes against humanity against Rohingya people) ○ What about Syria? Syria is not a member of ICC, and Russia said it would veto any attempt by UNSC to authorize an investigation. Same thing with North Korea: China would veto. There have been huge attempts to try to get ICC investigation in North Korea, and a major report by commission finding NK government's crimes against humanity. In Myanmar; also not a party to ICC, but since Bangladesh is a member of ICC and refugees have fled there, the prosecutor pushed that argument (even though its kind of sketchy), but judges accepted that and investigation is ongoing) PRELIMINARY EXAMINATIONS (investigations taken on by the ICC prosector that might turn into OFFICIAL investigations after getting approval by judges) ● Afghanistan, Colombia, Nigeria, Gabon, Guinea, Honduras, Iraq,

Philippines (not member), Ukraine (not member), Venezuela. ○ There was a preliminary examination into the president of the Philippines so Philippines left ICC, but UNSC can still authorize an official investigation. CONVICTED BY ICC (slides shared later) ● Bosco Ntaganda: terrible person that ordered murder, rape, sexual slavery, and use of child soldiers. Huge trial, and verdict that Court was over 500 pages long (18 counts, and goes through evidence very carefully). Concludes that he was guilty of war crimes and crimes against humanity. There is a written judgment and justification (different from US criminal trials). ○ No death penalties, life sentences are possible. What prisons do they go to? Most in the Netherlands, near where ICC is located. United States AND THE ICC ● Prosecutor went to judges and wanted to investigate war crimes committed in Afghanistan (joined in 2003), and said that many terrible crimes committed by government, by Taliban, and also by other governments such as the US (torture during war on terror). Said that crimes of torture were committed in part of a larger pattern. ● Judges turned down prosecutor's request to open a formal investigation; there is an appeal going on; APPEALS GOING ON TOMORROW ● Clinton administration said they liked the ICC, but would rather have

prosecution occur only through the UNSC (since US has veto power). Clinton signed the treaty, but said that it should not be ratified. Bush administration and was openly hostile to the ICC, but halfway through ICC, the administration did let the UNSC request an investigation into Darfur (Sudan). Less hostile towards the end. Obama administration was okay. Trump administration has been very hostile. ○ Trump administration VERY hostile (check slide about advisor person saying they would prosecute ICC personnel (???) ● Bush administration paid lip service to international law, but Trump is not even doing that.

Africa and the ICC ● Some people say that the ICC is biased against Africa ● Yes: Argument is that most formal ICC investigation involve Africa countries ● No: But most of these investigation are self-referrals, and there are lot of HR violations occurring within Africa, also ICC interest in Africa could be just wanting to protect Africa and cares about it....