Ius Gentium

University of Baltimore School of Law's Center for International and Comparative Law Fellows discuss international and comparative legal issues


6 Comments

Is this the end of the ICC? No.

Paul Gora

Gambia is the smallest country in Africa with a total population 1.2 million and 4,363 square miles, which makes it slightly less than twice the size of state of Delaware. The Republic of The Gambia signed the Rome Statute on December 4, 1998 and ratified it on June 28, 2002, making it the earliest African country to ratify the treaty. Forty-seven African states were present for the drafting of the Rome Statute in July, 1998. Many of these countries were members of a like–minded group that pushed for adoption of the final statute, with the majority of the 47 voting in favor of adoption, which indicates their involvement in the negotiation and set up of the International Criminal Court.  Among those nations, South Africa, Senegal, Lesotho, Malawi, and Tanzania participated heavily in the discussion as early as 1993 when the International Law Commission presented a draft ICC statute to UN GA for consideration.[1]

gora_blog2_photo2

In light of the arrest warrant issued for Sudanese president’s Omar Al Bashir by ICC, there have been an allegations from some Arab and African leaders, as well as certain public figures, organizations, and academia criticizing the ICC as being a Western tool, designed to subjugate leaders of African continent and advance an imperialist/neo-colonial agenda. On the face of it, these criticism can be seen as plausible. The reality, however, is that these criticisms are misplaced, biased, increase and support impunity on the continent.

The recent decision by Gambia to withdraw from the ICC will have a consequential impact on the Court’s future in Africa because countries   like Algeria, Angola, Cameroon, Egypt, etc. who have signed, but not ratified the Rome Statute, may decide to never ratify and even revoke their signature. Such a mass withdrawal from the Court hurts, primarily, victims in these African states, as it denies them justice.

gora_blog2_photo1

IS THIS THE END OF THE COURT? 

It is not. International criminal justice has always had its ups and downs, but this will not be the end of the ICC as we know it. According to Article 127 of the Rome Statute, parties are free to leave as they want. Of course, the withdrawal of few states may send a wrong message to international community about the ICC, but, in the end, the ICC is there for the victims, not the ones in power who decide to enter or leave.

WILL THERE BE MASS WITHDRAWAL?

Probably not. This move by Gambia and the two others may have opened a gateway for other countries, but it does not necessarily mean that many African countries will leave. For instance, Gabon last Month referred a case to the ICC after deadly unrest occurred in the nation over disputed election results.[2]

 gora_blog2_photo3

IS AFRICA UNFAIRLY SINGLED OUT?

Of the current 10 full investigations, nine are underway in 8 African nations. The reasons for these investigations are easy to accept – The victims are in Africa.  The alleged crimes occurred in Africa. Theses situation have been referred to the ICC by the countries themselves or these situations have been referred by the United Nations Security Council under a Chapter VII resolution. [3] The spin that is put on these cases – that the ICC is targeting Africa – is false. Other situations in other parts of the world are also under investigation in the preliminary phase, including the Middle East, South America, and Europe.[4]

Time will tell. The arc of the moral universe is, after all, long, but it bends towards justice in the end.

Paul Obang Gora is an LL.M. student in the Law of the United States (LOTUS) program at UB Law. He has an LL.B. from the Ethiopian Civil Service College, Addis Ababa (2000) and a certificate for six-months’ training for judges and prosecutors. He served as an assistant prosecutor in Ethiopia from 2001-2003, but fled to Kenya because of political persecution. He was a community organizer in the refugee camps in Kenya and then served in the new South Sudan Ministry of Justice as legal counsel from 2008-12, prior to emigrating to the U.S. Paul is on the Elective Concentration Track, specializing in International Law, and working as an intern with the International Rescue Committee. 

 

[1] http://www.iccnow.org/?mod=icchistory

 

[2] https://www.icc-cpi.int/Pages/item.aspx?name=160929-otp-stat-gabon

 

[3] https://www.icc-cpi.int/pages/situations.aspx

 

[4] https://www.icc-cpi.int/pages/preliminary-examinations.aspx

 

 

 

 

 

 

Advertisements


Leave a comment

A Minor Loophole in the ICC?

Daniel Huchla

Imagine: In the midst of an armed conflict, a mass of unarmed women and children in a remote village have been unceremoniously executed by armed forces. Under the laws of armed conflict, such acts would certainly create liability for war crimes.[i] However, it is surprising that if the soldiers or their commander that committed this crime were under the age of eighteen they would not be subject to jurisdiction at the International Criminal Court (“ICC”).[ii]

The International Criminal Court (“ICC”) is an international judicial body, designed as an alternative to International Criminal Tribunals which are restricted to specific jurisdictions and conflicts.[iii] Jurisdiction of the ICC is dependent upon the consent of sovereign nations through signature and ratification of The Rome Statute.[iv] Designed to address issues of crimes against humanity and war crimes, the ICC incorporates elements from prior treaties including The Hague and Geneva Conventions. One of the Rome Statute’s contributions to the law of war has been establishing that the usage of child soldiers as a war crime.[v] However, the rule does create a somewhat anomalous situation when considered in the totality of the statute.

huchla_blog2_photo1

Map depicting ratification of the Rome Statute of the International Criminal Court[vi]

            Under the Rome Statue, the act of “conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to actively participate in hostilities” qualify as a “serious violation[] of the laws [of] armed conflict.”[vii] The age of fifteen is drawn from the Convention on the Rights of the Child which similarly provides “States Parties shall take all feasible measure to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities.”[viii] The anomaly created by this situation is that under the Rome Statute, the ICC may not exercise jurisdiction upon individuals that were under the age of eighteen at the time of commission of crimes under the statute.[ix] This allows for as much as a three-year window in which potential combatants will not be accountable for their actions before the ICC.

The Convention on the Rights of the Child, through its effects upon domestic law, does slightly narrow the gap by obligating signatories to prioritize older candidates recruiting soldiers that are between the ages of fifteen and eighteen.[x] This may serve to shorten the window in which soldiers might be unaccountable for their actions. Alternatively, the Optional Protocol to the Convention on the Rights of the Child, requiring specific safeguards prior to the recruitment of soldiers under the age of eighteen.[xi] Additionally, the protocol attempts to raise the age of recruitment to 18 for “armed groups that are distinct from the armed forces of a State . . . .”[xii] However, the Optional Protocol has not been as widely ratified as the Convention on the Rights of the Child.

huchla_blog2_photo2

Image advocating for the ratification of the Optional Protocol to the Convention on the Rights of the Child.[xiii]

There are extreme situations that might warrant the use of combatants within this limited age range. States as sovereign entities have an interest and right to ensure the continued existence of its peoples. Some variables to be considered are the duration of the conflict, the extent of casualties, the overall population of the nation, and the average life expectancy. As these variables shift, the interest of defense may render the recruitment of soldiers under the age of eighteen necessary for some nations. In times of crisis it is perhaps understandable that every “able-bodied [individual]” be called for the defense of the nation.[xiv]

However, the gap in the Rome Statute’s jurisdiction still remains in which a combatant under the age of eighteen might commit violations of the law of armed conflict. The International Criminal Court balances this situation by allowing liability to be asserted against other individuals, specifically commanding officers.[xv] The Rome Statute provides that a commanding officer exercising “effective command and control” 1) “knew or . . . should have known that the forces were committing . . . crimes; and 2) . . . failed to . . . prevent . . . or to submit the matter . . . for investigation and prosecution.”[xvi] Although the ICC lacks jurisdiction to address crimes committed by individuals between the ages of fifteen and eighteen, domestic governments are capable of addressing the crimes. Through the establishment of a command responsibility standard that requires a commanding officer to submit the matter for investigation and prosecution, the ICC ensures that the issue will be handled domestically.

huchla_blog2_photo3

A child soldier recruited by Thomas Lubanga’s Force patriotique pour la libération du Congo. © Reuters

The Rome Statute, through command responsibility effectively requires domestic national governments to address all crimes committed by soldiers and especially those committed by combatants under the age of eighteen. Ironically, nations that make use of combatants in this age range might hold them to a higher level of liability than the ICC might themselves be comfortable. Or worse yet, they might hold them to a significantly lower level of liability. In either event, the ICC would be powerless to challenge a domestic ruling under the doctrine of ne bis in idem[xvii], because any domestic trial of a minor would not be designed to shield them from criminal responsibility before the ICC. In this situation, if a commanding officer complied with the requirements sufficiently to avoid personal liability, victims could be effectively deprived of justice. Perhaps an effort should be made to close this loophole in which minors are able to avoid criminal liability?

Daniel Huchla is a third year law student at the University of Baltimore and a graduate of Miami University with a Bachelor of Music. During his undergraduate studies, he performed in an International Opera Festival located in Brazil. He also serves as Associate Managing Editor for the University of Baltimore Law Review. Areas of interest include Administrative Law, International Humanitarian Law, International Criminal Law, and National Security Law. He is currently a Law Clerk with the Law Offices of McCabe, Weisberg & Conway.

[i] Rome Statute of the International Criminal Court, Art. 8 [hereinafter “Rome”], https://www.icc-cpi.int/NR/rdonlyres/EA9AEFF7-5752-4F84-BE94-0A655EB30E16/0/Rome_Statute_English.pdf.

[ii] Rome, Art. 26.

[iii] Compare Rome; with Statute of the International Tribunal for Rwanda, http://www.icls.de/dokumente/ictr_statute.pdf.

[iv] Rome Art. 4(2).

[v] Rome Art. 8(2)(b)(xxvi).

[vi] http://www.iccnow.org/?mod=ratimp.

[vii] Id.

[viii] Convention on the Rights of the Child, Art. 38(2), http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx.

[ix] Rome Art. 26.

[x] Convention on the Rights of the Child, Art. 38(3).

[xi] Optional Protocol to the Convention on the Rights of the Child, Art. 3(3) [hereinafter “Optional Protocol”], http://www.ohchr.org/EN/ProfessionalInterest/Pages/OPACCRC.aspx.

[xii] Optional Protocol, Art. 4.

[xiii] https://childrenandarmedconflict.un.org/mandate/opac/.

[xiv] See e.g. 10 U.S.C. § 311 (2016).

[xv] Rome Art. 28.

[xvi] Id.

[xvii] Rome Art. 20.


2 Comments

Shifting Focus: The ICC looks to Prosecute Environmental Crimes

Jasmine Pope

The International Criminal Court (ICC) was created as a result of the Rome Statute. The ICC was not set up to replace domestic court systems. Instead, the ICC serves to complement domestic criminal systems, only prosecuting cases when States, countries that are party to the Rome Statute, are unable or unwilling to do so.[i]

What does the ICC do? How does it work?

The Rome Statute grants the ICC jurisdiction over four crimes: genocide, crimes against humanity, war crimes, and crimes of aggression.[ii] Genocide requires “specific intent to destroy in whole or in part a national, ethnic, racial or religious group by killing its members or by other means.”[iii] Examples of genocide include the Rwandan Genocide, the Holocaust, and the Situation in Darfur. The ICC prosecutes fifteen forms of crimes against humanity, including sexual slavery, murder, enforced disappearances, apartheid, rape, and murder, which are “serious violations committed as part of a large-scale attack against any civilian population.”[iv] War crimes are considered to be violations of the Geneva conventions. Crimes of aggression are the “use of armed force by a State against the sovereignty, integrity or independence of another State.”[v] The ICC only prosecutes individuals that commit any of the crimes over which it has jurisdiction. The ICC does not prosecute States.

pope_blog1_photo1

A Landmark Policy Decision

On Thursday, September 15, 2016, the ICC made a huge announcement. The ICC will broaden its focus to include environmental crimes.[vi] In the policy paper published by the Office of the Prosecutor (OTP) of the ICC, the OTP stated that “the Office will seek to cooperate and provide assistance to States, upon request, with respect to conduct which constitutes a serious crime under national law, such as the illegal exploitation of natural resources, arms, trafficking, human terrorism, financial crimes, land grabbing or the destruction of the environment.”[vii] This is a big deal. For decades, the scientific community and activists have talked about climate and environmental change. But let’s be clear here: the ICC is not expanding its jurisdiction—it is simply assessing existing offences in a much broader context.[viii]

Environmental destruction and environmental issues have been a hot topic in recent years. Environmental issues and concerns deal with more than just cutting down trees in rainforests, since so much of our environment is affected by our daily actions. But it goes beyond the rainforest. Many of the situations currently under investigation by the ICC, where crimes against humanity and war crimes were committed, destruction of the environment is also an element. Warlords do not just magically come into a town or village, kill a few people, and then move on. No, they destroy the towns they come across. It is even possible that the actions of Royal Dutch Petroleum in the Niger Delta could be investigated by the ICC through their now broadened scope of jurisdiction.

pope_blog1_photo2

While the ICC usually prosecutes warlords, this decision opens the door for business executives, government officials, and heads of corporations to face the music, so to speak. No more outsourcing work to poor, undeveloped nations without a second thought as to the environmental consequences. The ICC can now start “holding corporate executives accountable for large-scale land grabbing and massive displacement happening during peace time.”[ix]

What Does it all Mean?

Can the ICC not only talk the talk: can it also walk the walk? That is the billion-dollar question. Instances of land-grabbing have plagued the world for decades, particularly in Africa, and in underdeveloped nations in Asia. Land grabbing deals with large-scale land acquisitions by governments and individuals, as well as domestic and international companies.[x] While land grabbing itself may not be a crime that the ICC can prosecute, the consequences of land-grabbing falls under the realm of crimes against humanity that the ICC can prosecute.

The international community is already speculating that Cambodia is the perfect place for the ICC to shift its focus.[xi] International lawyer with the international criminal law firm Global Diligence, Richard Rogers, has already filed a case with the ICC on behalf of ten Cambodian citizens. The complaint alleges that the country’s ruling elite “including government and military, has perpetuated mass rights violations since 2002 in pursuit of wealth and power by grabbing land and forcibly evicting up to 350,000 people.”[xii] If the ICC does choose to investigate the situation in Cambodia, it will be interesting to see who the ICC files charges against as having committed crimes against humanity. Does the ICC look to charge governmental officials? Does the ICC look to charge business executives? Who will the ICC deem responsible for the situation in Cambodia if they find they have jurisdiction?

 

This new expanding view of the ICC could open the door to prosecutions over climate change, in addition to land grabbing.[xiii]According to an ICC member who worked on the policy document, this decision allows for the ICC to “[exercise its] jurisdiction by looking at the context in which crimes are committed.”[xiv] Companies, government officials, business executives, and individuals must now think long and hard about their activities in certain countries, i.e. those that are party to and have accepted the jurisdiction the ICC. The ICC is watching, and so is the rest of the world.

Jasmine Pope is a second year law student at the University of Baltimore. She graduated from Towson University in 2015 with a Bachelor of Science in Political Science, with a minor in History. Jasmine is extremely interested in and passionate about international human rights, particular the rights of women and children. She also participated in the Summer Study Abroad Program in Aberdeen, Scotland. She has also studied abroad in Benalmádena, Spain. Currently, she serves as the Secretary for the International Law Society. Jasmine is currently a member of the Inter-American Human Rights Moot Court Team. Jasmine is also a Staff Editor for the Journal of International Law and works for the Law Office of Hayley Tamburello.

[i] https://www.icc-cpi.int/about/how-the-court-works.

[ii] Id.

[iii] Id.

[iv] Id.

[v] Id.

[vi] Brittany Felder, “ICC to focus on environmental crimes”, Jurist, September 16, 2016, http://www.jurist.org/paperchase/2016/09/icc-to-focus-on-environmental-crimes.php.

[vii] https://www.icc-cpi.int/itemsDocuments/20160915_OTP-Policy_Case-Selection_Eng.pdf.

[viii] John Vidal and Owen Bowcott, “ICC widens remit to include environmental destruction cases,” The Guardian, September 15, 2016, https://www.theguardian.com/global/2016/sep/15/hague-court-widens-remit-to-include-environmental-destruction-cases.

[ix] Chris Arsenault, “International court to prosecute environmental crimes in major shift,” Reuters, September 15, 2016, http://www.reuters.com/article/us-global-landrights-icc-idUSKCN11L2F9.

[x] Stop Africa Land Grab, http://www.stopafricalandgrab.com/.

[xi] Vidal and Bowcott, https://www.theguardian.com/global/2016/sep/15/hague-court-widens-remit-to-include-environmental-destruction-cases.

[xii] Id.

[xiii] Id.

[xiv] Id.