Author Archives: James Nyawo

Individual Criminal Responsibility for illegal use of force under international law. What role can International Criminal Law play before agression is criminalised under the Rome Statute

Introduction

This post explores the legal conditions that are required for the International Criminal Court (‘Court’) to investigate and prosecute the illegal use of armed forces between states, prior to the entry into force of the 2010 amendment to the crime of aggression. The amendment will enter into force if at least 30 States Parties ratify it and a decision is taken by two-thirds of States Parties to activate the jurisdiction at any time after 1 January 2017. When this happens, the Court will be empowered to investigate and prosecute the crime of aggression. The post proposes that in the meantime, an innovative judicial interpretation and application of Article 7 (k) of the Rome Statute of the Court may be a provisional measure that could be used to ensure that there is individual criminal responsibility for those who resort to the illegal use of force. Illegal use of force is a breach of both treaty law and international customary law.

The post is motivated by the fact that, although the Charter of the United Nations’ opening sentence expresses the determination of ‘the peoples of the United Nations to save succeeding generations from the scourge of the war’, those who have been responsible for the illegal use of armed force against other sovereign states have literally managed to get off ‘scot free’. The inclusion of the phrase ‘We the peoples of the United Nations’, instead of the traditional phrase ‘The High Contracting Parties’ in the Charter, was supposed to mark a paradigm shift towards the foundation of a new world order centred on safeguarding the welfare of peoples rather than that of states or formal authority of governments. It is, however, disconcerting that although the Nazi leadership was successfully prosecuted for, among other international crimes, the illegal use of force, what was then called crimes against peace, that precedent has not been upheld and, consequently, women and children continue to suffer the devastating effects of illegal use of armed force. There are numerous examples of illegal use of armed forces in contemporary global affairs whose architects have not been held to account. To cite but a few: Russia’s repeated violation of Georgian airspace and aerial bombardment that killed and wounded several civilians in 2002, the US-led invasion of Iraq in 2003, Uganda’s violation of Congolese territory in 2005, as recognised by the ICJ in DRC v. Uganda, and the North Korean shelling of Yeonpyeong Island in 2010.

Conditions under which the illegal legal use of force can be considered to fall under the category of ‘other inhumane acts’ of Crimes against Humanity

The individual acts that can be prosecuted by the Court under crimes against humanity are enumerated in Article 7 (1) (a) to (k) of the Rome Statute. Article 7 (k) refers to the category of ‘other inhumane acts’, and provides flexibility to cover violations of human rights that are not specifically enumerated as criminal acts.[1] The inclusion of this open-ended category of criminal acts is favoured by those who consider that an exhaustive categorisation of crimes would merely create opportunities for the evasion of the letter of the prohibition.[2]The approach goes along with the proposal to consider the illegal use of force as a criminal act that could be prosecuted under crimes against humanity.[3]

The Rome Statute combined with the Elements of Crimes provides the necessary threshold that must be satisfied for an act to be considered an ‘other inhumane act’. This implies that the act of the illegal use of force would have to meet the set threshold before being considered for either investigation to prosecution under the category of ‘other inhumane acts’. The conditions that the act will have to meet are a) the act has to inflict great suffering or serious injury to body or mental or physical health; b) be of similar character/gravity to the listed inhumane acts and c) the perpetrator must have been aware of the factual circumstances that established the character/gravity or the act.[4]

The case law of the two ad hoc international tribunals and the Court contains a list of diverse acts that were considered ‘other inhumane acts’.[5] In the situation in Kenya, the Pre-Trial Chamber II, confirmed that ‘other inhumane acts’ included forced circumcision and genital amputation inflicted upon members of the Luo community as well as acts of cutting and hacking that were committed in the post-election violence in 2008.[6] The variety of acts that both the ad hoc tribunals and the Court were prepared to consider under the category of ‘other inhumane acts’ supports the view that there should be no reason why the illegal use of force could not be included.

There are additional contextual conditions that have to be present in all criminal acts for the Court to have jurisdiction and exercise it. The contextual elements serve the purpose of elevating prohibited acts from being ordinary offences into to being considered as a concern for the international community.

The conditions or jurisdictional threshold for the crimes against humanity are set as follows;

For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack….[7]

This means that the key condition that the illegal use of force has to satisfy to be classified as a crime against humanity is that it has to be committed as part of a widespread or systematic attack. Widespread is understood as referring to the quantitative nature of the crime in terms of the number of victims and not necessarily the number of acts committed[8] whereas systematic is considered to refer to the level of organization of the crime and whether it follows a regular pattern based on a common policy involving substantial public or private resources.[9] Accordingly, any isolated or sporadic misbehaviour, irrespective of being heinous and horrendous, may not qualify as a crime against humanity.[10]

Conclusion

There are obviously challenges associated with the proposition put forward in this post. This is because the definition of crimes against humanity in the Rome Statute has some grey areas that still require clarification. Both the jurisdictional and material elements of crimes against humanity need to be calibrated before serious consideration is given to prosecuting the illegal use of force. This includes refining the requirement that the object of the attack has to be ‘any civilian population’. The definition of civilian in the context of the Rome Statute’ crimes against humanity is still a contentious issue. It is hoped that such clarity will be achieved if a current campaign by a group of academics, judges and practitioners to develop a Convention on Crimes against Humanity under the leadership of Professor Leila Nadya Sadat, proves to be successful.  Perhaps such a convention would put to rest some of the unsettled definitional challenges that crimes against humanity faces.

Still the post maintains that while the world awaits the entry into force of the aggression crime, there is a possibility to prosecute illegal use of force under the category of ‘other inhumane acts’ in Article 7 of the Rome Statute. There is obviously no authority to support such proposition although there seem to be no valid reason for not doing so. It does not seem that doing so would violate the principle of nullum crimen sine lege. This is because since the category was first included in Article 6 (c) of the Nuremburg Charter, then in the Control Council Law No 10, in the Statutes of the ad hoc tribunals and the Rome Statute, it appears to have been elevated to the status of customary international law.

[1]William A. Schabas, The International Criminal Court -A Commentary on the Rome Statute (Oxford University Press 2010) at p.119

[2]Kupreškic et al. (IT-95-16-T), Judgement, 14 January 2000, para 563

[3][3]Benjamin B. Ferencz, ‘A New Approach to Deterring Illegal Wars’ (Benjamin B Ferencz, 2011) <http://www.benferencz.org/index.php?id=4&article=106&gt; accessed 03 July

[4] See Margaret M. deGuzman, ‘Crimes Against Humanity ’ in William A Schabas and Nadia Bernaz (eds), Routledge Handbook of International Criminal Law (Routledge 2011) at p 134, Rome Statute Article 7 (1) (k) and Elements of Crimes Article (7) (1) (k) 1-5

[5] Some of the cases include Tadić(IT-94-1-T), Judgement,7 May 1997 para.728 (beatings and other acts of violence) Also: Akayesu (ICTR-96-4-T) Judgement, 2 September 1998 para (forced undressing and parading in public); Brima (SCSL-2004-16-A) Judgement, 22 February 2008, para 202 ( force marriage)

[6]Situation in Kenya (ICC-01/09), Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, 31 March 2010 ,para 116

[7] Rome Statute Article 7 (1)

[8]Kai Ambos, ‘Crimes Against Humanity and the International Criminal Court ’ in Leila Nadya Sadat (ed), Forging A Convention for Crimes Against Humanity (Cambridge University Press 2011) at p.284, see also Al Bashir (ICC-02/05-01/09) , Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, 4 March 2009, para 81

[9]Akayesu (ICTR-96-4-T) Judgement, 2 September 1998 , para 580

[10]Antonio Casesse, ‘ Crimes Against Humanity ’ in Antonio Casesse, Paola Gaeta and John R.W D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary vol 1A (Oxford University Press 2009) at p.357

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Lockerbie Affair and African States’ early support for the establishment of the International Criminal Court.

Introduction

Over the last few years, the relationship between the International Criminal Court (‘the Court’) and few but influential African states such as Libya, Rwanda, Kenya and Sudan can be defined as primarily antagonistic. Such states managed to influence the African Union (‘AU’) to adopt a stance that accused the Court of being a politicised institution, controlled by the most powerful states to selectively target African personalities. Consequently, the Assembly of the African Union the supreme organ of the Union adopted resolutions demonstrating African Union’s dissatisfaction with the manner that the Court was operating. It also passed resolutions   asking  African Union states which are also parties to the Rome Statute, the treaty that established the International Criminal Court  not  to execute the arrest warrants issued against  the Sudanese President Omar Bashir and  Muammar Gaddafi of Libya.

This rancorous relationship between the two institutions has already been widely discussed in both published and unpublished academic literature, including the blog sphere. The main focus of the discussion has been to establish whether the claims by Africa states that the Court is politicised and is focusing on Africa were genuine or exaggerated. This blog post focuses on a question that appears to have not received adequate attention. The question is why did African states supported the establishment of the  Court, if they knew that, one way of the other, it could end up having jurisdiction over its citizens (including sitting heads of states).

This post argues that one of the reasons behind African states’ early support for the establishment of the international court was the Lockerbie affair, which started in 1988 between Libya and three permanent members of the United Nations Security Council (namely France, United Kingdom and the United States). At the centre of the affair was the dispute between Libya and the three UNSC member states over the trial of two Libyan who were suspected of being involved in bombing of Pan American Flight 103 over Lockerbie, Scotland and killing more than 250 people. It is argued in this post that the lack of an international court with undisputed jurisdiction to investigate the suspects of Lockerbie bombing, combined with the manner that the United Nations Security Council handled Lockerbie Crisis, contributed to African states’ early supportive attitude and behaviour towards the establishment of the Court. The post begins by outlining the two dominant explanations offered for Africa’s early support of the Court before it introduces the third explanation the Lockerbie affair.

The two dominant explanations behind African States’ early support for the Court.

The first explanation was elaborated by the Legal Advisor of the then Organisation of African Unity, ‘OAU’ but now the African Union, Professor T. Maluwa, during the opening ceremony of the Rome Conference where the Rome Statute was adopted in 1998. His statement, quoted below, indicates that Africa’s support for the establishment of the Court was rooted in its people’s long history of victimhood.  He declared:

Africa had a particular interest in the establishment of the Court, since its peoples had been the victims of large-scale violations of human rights over the centuries: slavery, wars of colonial conquest and continued acts of war and violence, even in the post-colonial era. The recent genocide in Rwanda was a tragic reminder that such atrocities were not yet over, but had strengthened OAU’s determination to support the creation of a permanent, independent court to punish the perpetrators of such acts.[1]

Abdula Mohamed Omar, Minister for Justice in South African, whose country had just emerged from apartheid system added that

‘[i]n view of the crimes committed under the apartheid system, the International Criminal Court should send a clear message that the international community was resolved that the perpetrators of such gross human rights violations would not go unpunished’.[2]

The second explanation is linked to the indignation shown by delegations from several states attending the Rome Conference including African ones against the United States’ approach and proposals during the negotiations. Thus, this isolated the United States, while galvanising other states to support the establishment of the Court.

Third contributing factor – The Lockerbie Crisis

One of the historical contexts in which the Rome Statute was drafted was the Lockerbie affair. The affair pitted Libya against the three permanent members of the United Nations Security Council (the United Kingdom, the United States and France). The issue at hand was the extradition of two Libyan nationals, suspected of bombing Pan American Flight 103 over Lockerbie, Scotland and killing more than 250 people. Libya refused to extradite the two nationals to either the United States or the United Kingdom. The legal basis of this rejection was the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (1971), which allows for a state either to prosecute or extradite. Libya indicated that it was ready to investigate and prosecute the two suspects and was even ready to invite international observers to the trial. The three superpowers were not convinced.

On 3 of March 1992, Libya filed an application with the International Court of Justice contending that neither the United Kingdom nor the United States had the right to compel it to surrender its nationals.[3] In the meantime, the United States and the United Kingdom reverted to the United Nations Security Council and imposed sanctions on Libya, instead of waiting for a decision by the International Court of Justice.

The then OAU disapproved of the manner in which the United Kingdom and the United States used their positions in the United Nations Security Council, imposing economic sanctions on Libya as punishment for its refusal to hand over the two suspects. The crisis dragged on for years, as there was no appropriate forum agreed upon by both the United States, France and United Kingdom on one hand and Libya on the other, to investigate and prosecute the two suspects. In fact, the former Libyan leader Colonel Gaddafi made reference to the need for an international criminal court when he told a Dutch television interviewer that ‘an international court is the solution with judges from America, Libya, England and other countries.[4]

George Odartey Lamptey, from Ghana, brought up the Lockerbie debacle during the U.N. Sixth Committee’s 41st meeting in 1994, while discussing the establishment of the International Criminal Court. He made this reference during the submissions of the amendments to the draft resolution A/C.6/49/L.24 made by his delegation.[5] The amendments introduced in the resolution a specific operative paragraph, stating that the Six Committee had decided to ‘convene a United Nations conference of plenipotentiaries for a period of 4 to 6 weeks in the spring of 1996, to elaborate and adopt the statute of an international criminal court.’ The majority of amendments made by Ghana referred to the urgent need for United Nations plenipotentiaries.

In explaining his delegation’s amendments and their urgency, Mr Lamptey pointed out that:

[h]ad such a court already been in existence, the problem that had soured relations between the Libyan Arab Jamahiriya and the United States of America, the United Kingdom and France would not have arisen. As it was, the Libyan people were suffering because they would not let their nationals go on trial before jurisdictions in which they had no confidence.[6]

Ghana’s amendments were supported by the Nigerian and Malaysian delegations, but opposed by France and India.

In 1998, OAU expressed its frustration at the Security Council’s handling of the conflict—and its refusal to remove the sanctions on Libya in particular—by adopting a resolution declaring that that member states were no-longer going to comply with the United Nations Security Council Resolutions 748 (1992) and 883(1993).[7]

Conclusion

The OAU resolution was passed on the 10 of June 1998, five days before the start of the Rome Conference. One can therefore not rule out the possibility that Lockerbie affair may have played a part in influencing the positions taken by African states during the Conference. This included the African states’ support for the establishment of a Court independent of the United Nations Security Council.  —especially with regards to the role of the Security Council.


[1] A/CONF.183/SR.6 para 115 p.104

[2] A/CONF.183/SR.2 para 14 p.65

[3] Questions of Interpretation and application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom) (Instituting Proceedings ) General List No 88[1992]  ICJ

[4] Barbra Crossette, ’10 Years After Lockerbie, Still No Trial’ The New York Times (New York, 22 December 1998)

[5] Summary Record of the 41st Meeting of the Sixth Committee , U.N Doc A /C.6/49/SR.41, 12 December 1994 para 22.

[6] Summary Record of the 41st Meeting of the Sixth Committee , U.N Doc A /C.6/49/SR.41, 12 December 1994 para 22

[7] The Crisis Between the Great Socialist People’s Libyan Arab Jamahiriya and the United States of America and the United Kingdom , AHG/Dec.127 (XXXIV), 10 June 1998ICCICC

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The empire strikes back – The International Criminal Court (ICC) Prosecutor’s decisions on Kenyatta and The Situation in Darfur

December 2014 is likely to go down in the annals of international criminal justice as the month when the International Criminal Court (‘’ICC’’) faced its own ‘Bay of Pigs’. In the space of less than 10 days in December, Fatou Bensouda, the Prosecutor of the ICC, made two critical decisions in the work of the Office of the Prosecutor (‘’OTP’’). On 5 December 2014, the Prosecutor gave notice of the withdrawal of charges against the Kenyan President, Uhuru Muigai Kenyatta.[1] In accordance with the Rome Statute, the Prosecutor can withdraw charges at trial stage but this has to be approved by the Trial Chamber.[2] However in this case the Prosecutor did not require the Trial Chamber’s permission since the case was not yet at trial stage and her notice was in compliance with the Trial Chamber V (B)’s decision in which the Prosecutor was ordered to either withdraw the charges against President Kenyatta or demonstrate that she had sufficient evidence for the case to proceed to trial.[3] The Prosecutor preferred the first option, emphasising that her office had not gathered enough evidence to prove President Kenyatta’s alleged criminal responsibility. Seven days later, on 12 December 2014, and during the 7337th United Nations Security Council (‘’UNSC’’) meeting, the Prosecutor stated that she was ‘left with no choice but to put investigative activities in Darfur on hold’.[4] As noted by one blogger, Yvonne McDermott, the ICC’s statutory framework does not envisage a situation where the Prosecutor would suspend investigations on his/her own accord. Deferral of proceedings or stay of proceedings can only be done by the UNSC and the Chambers respectively.[5] In her address to the UNSC, the Prosecutor pointed out that the decision was based on two factors: the limited resources and the Council’s lack of foresight on what should happen in Darfur.[6] This post interprets the Prosecutor’s decisions in these two situations as a reflection of the fragility of the emerging machinery of international criminal law when states cooperation is not forthcoming. The decisions confirm the dangers associated with the ICC and the international criminal justice system’s ‘excessive reliance on state cooperation as primary means of achieving the mandated objectives of prosecuting persons for violations of international humanitarian law.’[7] In the situation in Kenya, it is hard to categorically say that the state failed to cooperate with the Court, considering that President Uhuru Kenyatta defied all odds including the advice from the African Union (‘’AU’’) and attended the status conference in October 2014. In 2013, the AU had decided, ‘’that President Uhuru Kenyatta will not appear before the ICC until such time as the concerns raised by the AU and its Member States have been adequately addressed by the UN Security Council and the ICC’’.[8] President Kenyatta, however, made a courageous and unprecedented move when he temporarily relinquished his powers and attended the status conference at the ICC in The Hague. It is possible that had President Kenyatta failed to attend the status conference he could have been issued with a warrant of arrest. Such a step could have prolonged a case even though the OTP had admitted that it had insufficient evidence to proceed to trial. Following this logic, President Kenyatta acted wisely when he decided to attend the status conference. Still, what remains a mystery is what happened to some of the key witnesses in President Kenyatta’s case. It is bizarre that key witnesses recanted their crucial evidence. Such developments tremendously weakened the case against President Kenyatta. On the one hand, it is possible that some witnesses developed cold feet after realising that the accused person had become the Head of the State, the President of Kenya. On the other hand, some witnesses were alleged to have lied to the Court, their credibility hence becoming open to challenge. Witness 4 illustrates this. After the confirmation of charges against President Kenyatta, the OTP had to drop Witness 4, who had placed President Kenyatta at the ‘’planning meeting’ held on 26 November 2007, for two reasons: ‘he stated that he had lied in his earlier statements regarding the 26 November 2007’ and ‘he had been offered, and accepted, money from individuals holding themselves out as representatives of the Accused to withdraw his testimony regarding the PEV, and provided emails and bank records that confirmed the bribery scheme.’[9] In Kenya, a coalition of NGOs, the Kenyans for Peace with Truth and Justice (KPTJ), makes serious allegations that the executive branch of the Kenyan government was actively involved in obstructing the International Criminal Court’s work. Similar observations of individual or collective states’ lack of meaningful cooperation with the Court could be made in the situation in Darfur, which was also discussed in the previous post by Stefano Marinelli. The situation in Darfur is even more complex considering that Sudan is not a state party to the Rome Statute. Sudan’s obligation to cooperate with the Court was imposed on it through a UNSC resolution. However, Sudan has refused to cooperate with the Court, maintaining that it is a non-party State. However, it has to be said that at an early stage of the investigations Sudanese authorities were cooperative with the ICC. Sudan was even willing to cooperate with the ICC in the arrest and surrender of the Lord’s Resistance Army suspects. The tables turned when the Prosecutor submitted an application for the arrest warrant of President Omar Bashir in 2008. All forms of cooperation ceased. One would have thought that at this stage the UNSC could have taken measures to solve the impasse between the ICC, Sudan and the AU but that did not happen. The UNSC could have at least invoked article 16 and deferred the situation as per the AU request. The Security Council’s indecisiveness on this situation complicated matters further considering that Sudan is a host to one of the largest United Nations Missions in the region and has a considerably large diplomatic community that is expected to work closely with the Sudanese authorities including President Omar Bashir. Since the indictments and issuance of arrest warrants, the United Nations and the diplomatic community are expected to have limited contact with President Bashir and some of his government officials wanted by the Court. This has proved to be a political and humanitarian minefield for those heading different United Nations agencies that are in Sudan. For instance, in 2014, Herve Ladsous, the head of the United Nations peacekeeping operations, met President Omar Bashir, attracting widespread criticisms from human rights activists. Incidents such as these and the general lack of the Security Council’s leadership in resolving the impasse between the Court and Sudan, as well as Sudan and other states’ lack of cooperation with the Court, added to the frustration that lead to the shelving of investigations. What is of significance, and probably the inconvenient truth from the Prosecutor’s decisions, is that the international system and the principle of state sovereignty seems to be reclaiming its lost ground from international criminal law. There is no doubt that the establishment of the ICC imposed some limits on the principle of state sovereignty. The developments in Kenya and Darfur have put doubts in the idealist approach to the enforcement of international criminal law that considers state cooperation as a given. As long as state sovereignty remains the organising principle of the modern international system, it is hard to envisage the enforcement of international criminal law against sitting heads of states and those in power as they can frustrate the work of the Court by not cooperating. They can easily turn to their states’ financial, logistic and diplomatic machinery to frustrate the enforcement of international criminal law. The UNSC’s ability to act in this regard is so compromised by the interests of individual permanent members that it cannot be a reliable partner for the ICC. More so, the majority of the permanent members of the Security Council are non-party States to the Rome Statute. This raises genuine questions about the legitimacy of the UNSC’s engagement with the Court. That way, the enforcement of international criminal law by the ICC is likely to be limited to either rebel leaders who lack access to state apparatus or those who would have lost control of states apparatus. Conclusively, Prosecutor Bensouda’s courage and wisdom deserve to be commended. Her two decisions threw the ball in the states’ court, which are the ‘arms and limbs’ of the ICC. Her realist approach is likely to shift some of the unwarranted criticisms from the ICC and place them with the states and the UNSC. That said, it is clear that timing and patience are crucial in the enforcement of international criminal law. Perhaps the Prosecutor should not have gone for sitting heads of states in the first place. In the first decade of the ICC’s existence, the OTP appears to have had bitten off more than it could chew. This could be because there were too many idealists within its own rank and file. These two situations demonstrate that states have the ability to strike back against the ICC by controlling when or not to cooperate. It is now time for the fledgling international criminal justice system, centred on the ICC, to do some soul searching on how to ensure states cooperation in the global struggle against impunity.


[1] Kenyatta (ICC-01/09-02/11), Notice of withdrawal of the charges against Uhuru Muigai Kenyatta, 5 December 2014.
[2] Rome Statute Art.61 (9)
[3] Kenyatta, (ICC-01/09-02/11) Decision on Prosecutor’s application for a further adjournment, 3 December 2014 p.26
[4] UN Doc. S/PV.73337, 12 December 2014, p.2
[5] See Rome Statute Article 16
[6] Supra 4.
[7]Cassese A., ’On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law’ (9) European Journal of International Law at p. 9
[8] Decision on Africa’s Relationship with the International Criminal Court, Ext/Assembly/AU/Dec.1(Oct.2013) Extraordinary Session of the Assembly of the African Union, 12 October 2013, Addis Ababa, Ethiopia.
[9] Kenyatta and Muthaura (ICC-01/09-02/11), Public redacted version of the 25 February 2013 Consolidated Prosecution response to the Defence applications under Article64 of the Statue to refer the confirmation decision back to the Pre-Trial Chamber, 25 February 2013 para 17imrs.php

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The Union of Comoros’s atypical referral to the International Criminal Court and the Office of the Prosecutor’s cryptic decision to end the preliminary examination on the Flotilla raid.

Introduction

On 6 November 2014, the Office of the Prosecutor of the International Criminal Court (‘‘The Court’’) announced its decision to close the preliminary examination into the situation in Union of Comoros (‘’Comoros’’). After her office conducted a thorough ‘legal and factual analysis of the information available’, the Chief Prosecutor Fatou Bensouda concluded that ‘the potential case(s) likely arising from an investigation into this incident would not be of “sufficient gravity” to justify further action by the ICC.’

Concurrent to the statement, the Office of the Prosecutor published a detailed article 53 (1) report on the Situation on Registered Vessels of Comoros, Greece and Cambodia, outlining the reasons for its decision. In her statement, Prosecutor Bensouda also recalled that the Comoros could request the Pre-Trial Chamber judges to review her decision. Although this is legally permissible under article 53(3)(a) of the Rome Statute, it has to be said that the powers of judicial review on prosecutorial decisions are limited, particularly when it is either  the Security Council or the State Party requesting  for a review of the  Prosecution’s decision.[1] Article 53(3) (a) does not categorically  provide that when either a State Party or the United Nations Security Council requests a judicial review of the prosecutor’s decision, the judges could overturn such a decision and order the prosecutor to open an investigation. All that the judges can do is to request the Prosecutor to reconsider the original decision. There is no provision within the Rome Statute to suggest any course of action to be taken in the event that the Prosecutor maintains the original stance not to proceed. Nonetheless, the situation would be different if the Pre-Trial Chamber decides to act on its own initiative, which is legally possible only if the prosecutor’s decision not proceed is based on gravity of the crime and the interest of justice. Under such circumstances the Prosecutor’s decision would be tied to the outcome of the Pre-Trial Chamber review process.

Consequently if the Comoros were to request the judges to review the decision as suggested by the Prosecutor, the Prosecutor could simply maintain her stance without being compelled to give in to some form of external pressure to alter it. The rationale for such approach in the Rome Statute is to ensure that the Office of the Prosecutor enjoys institutional independence from other organs of the Court. Still such an approach makes the Office of the Prosecutor susceptible to external criticism of unjust selective enforcement of international criminal law.

An Atypical Referral

On 14 May 2013, Elmadag Law Firm, a Turkish firm acting on behalf of the Comoros, filed an application under articles 14 and 12 (2) of the Rome Statute. The application referred the Israeli Defence Forces’ raid on the Humanitarian Aid Flotilla (bound for the Gaza Strip) to the Court. The application was filed three years after the raid in which a total of ten passengers (the majority of who were of Turkish nationality) were killed, and several others were injured.  Israeli military personal were also injured in the process.  While Comoros is a State Party to the Rome Statute, both Turkey, whose nationals were direct victims of the attack, and Israel, the perpetrators of alleged atrocity crimes,[2] are non-Party States.

Comoros’ involvement in this referral is linked to the fact that the alleged war crimes occurred on the Mavi Marmara, a vessel that was registered in, and flew the flag of the Comoros at the time of the incident. Thus, in accordance with article 12 (2) (a) of the Rome Statute, since Comoros was the state of registration of the vessel, the Court could exercise its jurisdiction based on the principle of territoriality. As a matter of fact the referral highlights the potential that the Rome Statute has to protect States Parties from aggressive actions and policies of non-Party States actors. It is also evident from this particular referral that the jurisdictional regime of the Court could even be useful in protecting the nationals of non-Party States if they are victims of atrocity crimes committed in the territory of a State Party.

What is more interesting however, is whether the relationship between Mavi Marmara and Comoros satisfies the threshold of ‘genuine link’, required under international maritime law, for the vessel to be considered a territory where Comoros actually exercised effective control at the time of the raid. Article 12(2) (a), which gives the Court territorial jurisdiction to vessels of States Parties is linked to article 5 of the (1958) Convention on the High Seas and article 91 of the 1982 United Nations Convection on the Law of The Sea. These two treaties assert that ‘Ships have the nationality of the State whose flag they are entitled to fly’. In addition, there is a requirement that ‘there must exist a genuine link between the State and the ship. The 1958 Convention elaborates on what genuine links means which is that; ‘the State must effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.[3] This explanation of what genuine link means was dropped in the 1984 United Nations Convention which has  made the interpretation of such a ‘well-established rule of international law’ very debatable and unsettled.[4]

The emerging trend in the case law of both the International Court of Justice and International Tribunal for the Law of the Sea, appears to suggest that registration is an adequate indicator for establishing genuine link.[5] That said, and for the purposes of exercising international criminal jurisdiction under the Rome Statute additional indicators might be necessary for establishing genuine link. For instance when the Prosecutor assesses admissibility of situations, under complementarity principle he or she must be able to establish whether the State with jurisdiction over the vessel is unable or unwilling to investigate or prosecute those responsible. This means establishing more than just the registration of a vessel but also that the state of registration can actually exercise effective control over the vessel including exercising its sovereign right to administer criminal justice.

The problem arises from the fact that, although, as highlighted already, the Mavi Marmara was flying the Comoros flag the vessel was only registered in the Comoros on 22 May 2010, just a week before the raid occurred on the 31 May 2010. This poses some questions as to whether that was enough to establish ‘genuine link’ between the State and the vessel. In addition, at the time of raid, the vessel was owned by the Foundation for Human Rights, Freedoms and Humanitarian Relief (IHH), a Turkish registered humanitarian non-governmental organisation. There are also reports that by August 2011 the registration of the vessel had already been transferred back to Turkey.  It is unfortunate that we will probably not get to know the Office of the Prosecutor and the Chambers’ interpretation of the threshold for establishing whether genuine link between state and vessels in this situation as the preliminary examination was closed.

Cryptic Decision

The Prosecutor’s report on the Comoros’ preliminary examination decision made a somewhat circumspect reference to the broader Palestinian-Israeli conflict and the related atrocities crimes committed for instance in the Gaza Strip. The report indicated that the Court lacked jurisdiction over ‘other alleged crimes committed in the context of the conflict between Israel and Hamas and in the broader context of any conflict between Israel and Palestine’. It is this author’s view that what lies behind this reference by the Prosecutor to the broader conflict between Israel and Palestine, is the hope by the prosecutor that the Palestinian Authority ratify the Rome Statute. This would give the Court broader jurisdiction than the one encompassed in the Comoros referral.

The uncertainty over the ability of Palestine to ratify the Rome Statute and adopt a declaration accepting the jurisdiction of the Court was removed in 2012, when the United Nations General Assembly granted Palestine the status of non-Member Observer State which arguably opened the way for it to ratify the Rome Statute. Since the United Nations General Assembly’s decision, Chief Prosecutor Bensouda has, on several occasions, suggested that the Palestinian Authority could either ratify the Rome Statute or could refer war crimes in its territory to the Court. The Palestinian Authorities have, on occasion, hinted at joining the Court, for instance, after the most recent Gaza war in 2014. However they have not yet provided a clear timetable for doing so. Perhaps this decision by the Prosecutor will act as another catalyst for the Palestinian Authority to expedite their ratification of the Rome Statute.

Such a step would not only extend the jurisdiction of the Court to foreign actors on Palestinian territory i.e. Israel, it would also mean the Court could investigate the alleged atrocities committed by Palestinians agencies such as Hamas. In the meantime the impunity gap that seems to exist in the Occupied Palestine Territories could be closed either through universal jurisdiction or by the Israeli authorities investigating and prosecuting those responsible.

The fact that the Prosecutor established that war crimes were committed during the raid, could stimulate the search for  alternative  avenues for seeking accountability through domestic mechanism whether in Israel or any states exercising universal jurisdiction

Conclusion

The circumstances surrounding the Comoros’ referral raise interesting questions. Primarily it reveals the interconnection of two different branches of international law: international criminal law and international law of the sea.  It is unfortunate that the circumstances  denies us of an opportunity to learn how, if at all, the Court might interpret the legal requirement of having a ‘genuine link’ between the flag state and the vessel under the Convention on the Law of the Sea. Secondly, the timing of referral points to the lack of consensus among African States on how to relate with the Court. Finally, the decision by the Prosecutor suggests that the best way that the Palestinian Authority can benefit from the protective shield of the Rome Statute is by becoming a State Party. However, due to the implications of this on all parties involved, this is quite contentious.


[1] Stahn C., (2009) ‘ Judicial Review of Prosecutorial Discretion: Five Years On’ in Carsten Stahn and Goran Sluiter (eds) The Emerging Practice of the International Criminal Court, Leiden, Martins Nijhoff Publishers at p. 255

[2]  A modern term introduced by David Scheffer to describe particular heinous crimes suitable for criminal prosecution before international tribunals and special national courts. Scheffer D., (2010) All The Missing Souls –A Personal History of the War Crimes Tribunals, Princeton , Princeton University Press at p. 429

[3] Convention of the High Seas (1958), Article 5

[4] See Attard, D. & Mallia P., (2014)’ The High Seas’, in Attard, D. Fitzmaurice, M., & Gutierrez. N, A. M (eds) The IMLI Manual on International Maritime Law: Volume 1: The Law of The Sea. Oxford: Oxford University Press, pp 248-255.

[5] Ibid

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Ukraine and the Limits of Collective Security under International Law

Ukraine is finding itself at the centre of a geopolitical tug-of-war between Russia on the one hand, and the U.S and its European allies on the other. The strategies and tactics used by both sides borders on the violation of international law and norms. Their approaches call into question the relevance of the collective security mechanism in the enforcement of international law, in situations where powerful states are the culprits.

Collective security in its classical form and as developed in the Charter of the United Nations system serves as a mechanism for the enforcement of international law. It is a mechanism that gives the United Nations and more specifically the Security Council, legal monopoly to authorise the use of force in the event that international law and rules are violated by either states or non-state actors. The mechanism hinges on the maxim that any injury to one (state) is an injury to all (states). Hence there is the expectation that members of the United Nations acting through the Security Council and under Chapter VII would collectively enforce international law regardless of whether or not they have directly suffered injury. In the context of interstate relations, by ensuring that the purpose and principles of the United Nations Charter are adhered to at all times, collective security ideally serves to protect weaker states from possible attacks from militarily powerful states. That way, the collective security mechanism prevents a situation where the might is right or the Hobbesian state of ‘bellum omnium contra omnes’.

Sovereign equality is indeed a cornerstone principle that the collective security mechanism seeks to defend. This principle, which is found in Article 2.1 of the Charter of the United Nations, ensures that states enjoy full sovereignty. In 1991 the United Nations Security Council reaffirmed the collective security measure under Chapter VII after Iraq invaded and annexed Kuwait. It authorised the use of force to ensure that Iraq’s invasion of Kuwait was reversed.

That said, the events unfolding in Ukraine raise curious questions on the effectiveness of collective security measures in enforcing international law, when those violating the law are global superpowers. In Crimea and Eastern Ukraine, the separatist rebels threatening the territorial integrity and political independence of Ukraine are alleged to be receiving moral, political and military support from Russia, one of the five permanent members of the Security Council.

As it stands, the possibility of any action from the United Nations Security Council in Ukraine appears to be remote. This is because the Security Council would not only require an affirmative vote of nine members of the Security Council but must also have the consent of all five permanent members, which includes Russia, to trigger the collective security mechanism.

Russia has been sympathetic to the cause of the separatists since the ousting of President Viktor Yanukovych led government following mass demonstrations mainly in Kiev. It justifies its position by claiming that the minority separatist’s population in Ukraine, which are either Russian citizens, (referring to those who were given Russian passports) or Russian speakers, were under threat from Ukrainian nationalists.

This should not be surprising considering that since President Putin’s United Russia party (Yedinaya Rossiya) came into power one of its foreign policy priorities was to expand Russia’s sphere of influence within Asia, especially in the former Soviet Republic states, and to create a security belt that would keep the spread of European Union and NATO influence at arm’s length. In order to justify this foreign policy objective, Russia adopted its own form of ‘Responsibility to Protect Doctrine’ based on its pledge to defend the interests of Russian-speaking citizens who live in the neighbouring former Soviet Republic States. The doctrine was put into practice and appeared to have been successful in Abkhazia, South Ossetia, and Transnistria and in 2014 in Crimea.

Although the critics of President Putin have been quick to point out that he is using illegal means to redraw the boundaries in the Eurasian sub-region, the reality is that there are limited mechanisms available to effectively prevent him from doing so. Russia’s veto power in the United Nations Security Council enables it to stop any attempts to trigger collective security mechanism. The fact that under the Charter of the United Nations the application of collective security hinges on the decisions taken by the Security Council implies that the measure’s success depends on the five superpowers’ national interests. This confirms that the enforcement of international law through the collective security mechanism remains a decentralised affair that depends on the interests of individual permanent members of the Security Council. In practice this means that the collective security mechanism is bound to be applied in a selective manner to small and medium sized states, and in particular those without strong alliances among the Security Council permanent members.

The U.S and its European allies’ role in the violation of Ukraine’s sovereignty appears to be obscured by the speed with which events have occurred combined with the role that mainstream media continues to play in trying to shape international public opinion. In November 2013, prominent figures allied to the European Union, travelled to Kiev to support the demonstrations against an elected Ukrainian government in a clear violation of international law. United States Senators John McCain and Chris Murphy also went to Kiev when the anti-government protests were at their peak. In his address to the protestors Senator McCain said, ‘we are here to support your just cause, the sovereign right of Ukraine to determine its own destiny freely and independently…’ The statement was delivered even though the Ukrainian government had decided to retain closer ties with Russia instead of the European Union. Senator McCain was adamant. He told the protestors that the destiny they were seeking was in Europe. His comments resonated well with the views he had expressed during the 2008 Presidential Debate against President Obama, where he argued that the U.S should support Ukraine and Georgia in joining NATO, a position which is categorically not unwelcome by Russia.

The audacity shown by Senators McCain and Chris Murphy, i.e of going into a sovereign state and openly supporting anti-government protestors was unexpected. Their initiative goes against the underlying principles and purposes of the United Nations according to which states must respect each other’s political independence in determining their foreign policy. Instead of leaving the Ukrainian authorities to enjoy their political independence and the right to freely choose and develop their state’s foreign policy, their presence and support for the protestors was inevitably part of the game changer that led to the collapse of the political order in Kiev. The new authorities in Kiev were quick to distinguish themselves from their predecessors by adopting more western orientated economic and political policies.

One can only imagine how the U.S would have reacted had any prominent member of Russia’s ruling party, or Communist Party had joined in and supported the demonstrators against police brutality in Ferguson, Missouri. The comparison between Senator McCain in Kiev, and Russian figures joining demonstrations in Missouri might seem far-fetched, yet the fact that both situations are associated with highly sensitive national issues makes any form of foreign intervention a serious violation of sovereignty. It has to be said that during the Cold War, global powers acted covertly when they intervened in the internal affairs of smaller and medium-sized states. This was done because of the balance of power between the United States on the one hand and the Soviet Union on the other. However, since the collapse of the Soviet Union and the end of the Cold War such balance of power was disturbed. The gap left within the international legal system has not been effectively covered, resulting in some form of uncertainty as to how global affairs could be addressed. Global and regional powers appear to have discarded the need to respect international law when their national interests are at stake and they are prepared to do so openly. The disappearance of an effective balance of power system meant the protective security shield that was offered to small and medium states by the competing super powers is no more and the collective security mechanism’s limitations are consistently exposed.

Conclusively, in as much as the two opposing sides in the Ukrainian tug-of-war have reverted to a sanctimonious tone in their attempt to harness international public support, the fact is that they have violated international law with impunity. Their impunity is a result of the fact that they occupy powerful positions within the international legal order. They use their positions and powers such as the veto power to block any activation of the collective security mechanism under the Charter of the United Nations and on the part of the U.S and its European Union allies they additionally benefit from their control over mainstream media to influence international public opinion.

UNSC Chambers

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