Monthly News Update: International Criminal Court - April 2019

BY ISABELLA BANKS, RESEARCH ASSOCIATE PILPG-NL

In the past month, the International Criminal Court (ICC) released updates regarding four cases, two official visits, two statements of the ICC Prosecutor, and one publication. Most controversial among them was Pre-Trial Chamber II’s decision to reject the Prosecutor’s 2017 request to open an investigation in Afghanistan.

AFRICA

Libya | ICC Pre-Trial Chamber I Confirms Saif-Al-Islam Case is Admissible Before the ICC

On April 5 2019, ICC Pre-Trial Chamber I rejected by majority the admissibility challenge presented by the Defense of Saif Al-Islam Gaddafi in June of last year. The Defense argued that the case was inadmissible because Mr. Gaddafi had been convicted by the Tripoli Criminal Court for substantially the same conduct as alleged in ICC proceedings, and was ultimately released from prison in Libya as a result of a general amnesty.

In rejecting the challenge, the Majority found the case against Mr. Gaddafi admissible before the Court. The Majority was not satisfied that the decision of the Tripoli Criminal Court was final, given that it was rendered in absentia and is still subject to appeal. It further found that Gaddafi was excluded from the relevant  amnesty (provided by Law No. 6 of 2015), asserting that “granting amnesties and pardons for serious acts such as murder constituting crimes against humanity is incompatible with internationally recognized human rights.”

The situation in Libya was referred to the ICC Prosecutor by the UN Security Council in 2011. Later that year, Pre-Trial Chamber I issued arrest warrants for Mr. Gaddafi, Muammar Mohammed Abu Minyar Gaddafi, and Abdullah Al-Senussi for crimes against humanity (murder and persecution) allegedly committed by the Libyan state and Security Forces. Mr. Gaddafi’s father – Colonel Muammar Gaddafi – was deposed and killed in 2011, and Abdullah Al-Senussi’s case was found inadmissible in 2013. Mr. Gaddafi remains at large.

In the wake of its decision, Pre-Trial Chamber I and organizations like Lawyers for Justice in Libya (LFJL) urged the Libyan state and the international community to surrender Mr. Gaddafi to the ICC to face trial.

Libya | Statement of the ICC Prosecutor in Relation to the Escalation of Violence in and Around Tripoli, Libya

On April 16 2019, ICC Prosecutor Fatou Bensouda issued a statement expressing her concern about the recent escalation of violence in Libya. The unrest is a result of the advance of the Libyan National Army (LNA) towards Tripoli – Libya’s capital and the base of its UN-backed, internationally recognized government –  and related fighting with forces aligned with the Government of National Accord (GNA). It comes in the context of broader violence and political instability that has persisted since former ruler Muammar Gaddafi was deposed in 2011.

Prosecutor Bensouda called on the armed groups involved to respect the rules of international humanitarian law and take measures to protect civilians. She reminded all parties – particularly commanders with effective control over their forces – that individuals contributing to the commission of crimes may be subject to ICC prosecution.

With regard to the situation in Libya, she cautioned: “I will not hesitate to expand my investigations and potential prosecutions to cover any new instances of crimes falling within my Court’s jurisdiction, with full respect for the principle of complementarity. No one should doubt my determination in this regard.”

Mali | ICC Registrar Completes First Official Visit to Bamako, Mali

From March 24-28, 2019, ICC Registrar Peter Lewis conducted his first official visit to Bamako, Mali. Hoping to strengthen support for the Court’s activities in Mali, Registrar Lewis met with senior government representatives, the diplomatic community, the United Nations Multidimensional Integrated Stabilization Mission in Mali (MINUSMA), the media, and civil society.

The situation in Mali was referred to the ICC by Mali’s government in July 2012. In January 2013, the ICC Prosecutor opened two cases relating to crimes allegedly committed on its territory: The Prosecutor v. Ahmad Al Faqi Al Mahdi, and The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud. Mr. Al Mahdi was found guilty as a co-perpetrator of a war crime and sentenced to nine years imprisonment in 2016. Mr. Al Hassan is currently in ICC custody awaiting a confirmation of charges hearing.

Mali | Confirmation of Charges Hearing in Al Hassan Case Postponed to 8 July 2019

On April 18 2019, ICC Pre-Trial Chamber I announced its decision to postpone the commencement of the confirmation hearing for the case, The Prosecutor vs. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, from May 6 2019 to July 8 2019. This change was made on the basis of procedural issues.

The purpose of the confirmation of charges hearing is to “determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charges.” If the charges are confirmed – even if only in part – the case will proceed to trial. In the case of Mr. Al Hassan, these charges include war crimes and crimes against humanity that he allegedly committed as de facto chief of the Islamic police in Mali.

Mr. Al Hassan made his first appearance at the ICC one year ago and is currently in ICC custody.

ASIA

Afghanistan | ICC Judges Reject Opening of an Investigation Regarding Afghanistan Situation

On April 12 2019, ICC Pre-Trial Chamber III unanimously rejected the ICC Prosecutor’s 2017 request to proceed with an investigation of alleged crimes against humanity and war crimes committed in Afghanistan. The Chamber concluded that such an investigation “would not serve the interests of justice.”

In its decision, the Chamber acknowledged that there was a reasonable basis to consider that crimes within the ICC’s jurisdiction had been committed in Afghanistan, but considered the time that had elapsed since the opening of the preliminary examination in 2006 and the lack of cooperation that the Prosecutor had received to be major impediments to a successful investigation and prosecution. The Chamber called the Prosecutor’s prospects for success in this regard “extremely limited,” and emphasized the need for the Court “to use its resources prioritizing activities that would have better chances to success.”

The Chamber’s decision was a source of significant controversy – due in no small part to its temporal proximity to threats by United States National Security Advisor John Bolton and Secretary of State Mike Pompeo to retaliate against the ICC if an investigation in Afghanistan proceeded. Earlier this month, the US revoked the visa of ICC Prosecutor Bensouda because of her attempts to investigate allegations of war crimes in Afghanistan, “including any that may have been committed by American forces.” Many commentators have interpreted the Chamber’s decision as excessively political and damaging to the ICC’s legitimacy.

On April 15 2019, the ICC released a Questions and Answers document detailing the reasoning behind the Chamber’s decision.

Afghanistan | Statement of the ICC Office of the Prosecutor Following the Decision of Pre-Trial Chamber II Concerning the Situation in Afghanistan

On April 12 2019, the ICC Office of the Prosecutor (OTP) issued a statement on the decision of Pre-Trial Chamber II concerning the situation in Afghanistan. The statement highlights the Chamber’s finding that the requirements of gravity and complementarity were met, and expresses the OTP’s intention to “further analyze the decision and its implications, and consider all available legal remedies.”

 

CENTRAL AMERICA / CARRIBEAN

Panama | ICC Registrar Concludes Official Visit to Panama to Discuss Strengthened Cooperation

From April 11-12 2019, ICC Registrar Peter Lewis conducted an official visit to Panama. The purpose of the visit was to strengthen the ICC’s cooperation with the government and other national stakeholders. Registrar Lewis reported that during his meetings, “the authorities of Panama reaffirmed their commitment to the fight against impunity, their strong support to the work and mandate of the Court and their engagement to continue cooperating with the ICC especially in the realm of voluntary agreement.“

 

EUROPE

Netherlands | The Office of Public Counsel for Victims Publishes Fifth Edition of its Manual for Victims’ Legal Representatives

In early April 2019, the Office of Public Counsel for Victims of the ICC published the fifth edition of its manual, “Representing Victims Before the International Criminal Court: A Manual for Legal Representatives,” which was first published in 2010. Over the past nine years, the manual has been updated in accordance with the Office’s mandate to provide support and assistance to victims and external legal representatives.

The manual is intended to serve as a user-friendly resource for victims’ representatives appearing before the ICC. The new edition is organized into three parts: Part I contains a general introduction to the ICC and the role of victims in Court proceedings; Part II details ICC practice relating to victims’ participation in Court proceedings, including reparation proceedings; and Part III provides an overview of practical issues relating to victim representation in ICC proceedings.

Currently, the updated manual is only available in English. French and Spanish versions of the new edition will be made available later this year.

 

MIDDLE EAST

Jordan | ICC Appeals Chamber to Deliver Its Judgment in Jordan’s Appeal in Al Bashir Case on May 6, 2019

On April 8 2019, the ICC Appeals Chamber announced that it would deliver its judgement on Jordan’s appeal of a decision of Pre-Trial Chamber II in the Omar Al-Bashir case on May 6 2019. The Chamber found that by not arresting Mr. Al-Bashir when he was on Jordanian territory in 2017, Jordan failed to comply with its obligations as an ICC state party. The Chamber referred Jordan’s non-compliance to the Assembly of States Parties and the UN Security Council. In March 2018, Jordan appealed the Chamber’s decision.

The situation in Sudan was referred to the ICC by the UN Security Council in 2005. In 2010, the ICC issued two arrest warrants for Mr. Al-Bashir for crimes against humanity, war crimes, and genocide allegedly committed in Darfur. Additional information about Mr. Al-Bashir’s case can be found here.