ASP Background Briefings | ICC Investigation of US in Afghanistan

The Prosecutor’s Report on the Preliminary Examination of Activities explained that in 2001, the US invaded Afghanistan in response to the terrorist attacks that Al Qaeda operatives conducted in Washington, D.C., and New York City. The US entered Afghanistan and attacked the Taliban-led Government because it accused the Taliban of harboring Al Qaeda, who claimed responsibility for the attacks. UNSC Resolution 1386 established the International Security Assistant Force (ISAF), which brought NATO forces into Afghanistan. While NATO and the US ousted the Taliban by December 2001, the conflict spread from southeast Afghanistan to the capital, Kabul.

In 2007, the Office of the Prosecutor made the preliminary examination of the Afghanistan situation public. The Prosecutor determined that the Afghanistan conflict is a non-international armed conflict between pro-Government forces comprised of the Afghan Government, supported by the US and ISAF forces, and the anti-Government forces, including the Taliban and the Haqqani Network. In 2016, the Prosecutor found that there was a reasonable basis that: 1. the anti-Government forces committed crimes against humanity and war crimes, 2. Afghanistan’s intelligence agency and National Police committed war crimes of torture and ill treatment, and 3. the US’s Central Intelligence Agency committed war crimes of torture and ill treatment.

On November 20, 2017, the Prosecutor requested the Pre-Trial Chamber’s authorization to begin an investigation into crimes against humanity and war crimes in Afghanistan. Based on the preliminary investigation, the Prosecutor believes that there is sufficient evidence that the fighting parties committed grave war crimes and crimes against humanity, and no national jurisdiction is undertaking an investigation.

The Prosecutor determined that the investigation’s scope includes war crimes and crimes against humanity since May 1, 2003 in Afghanistan, and war crimes that are closely linked to the Afghan armed conflict in the territory of other State Parties since July 1, 2002. In the Preliminary Investigation, the Prosecutor reported alleged war crimes when pro-Government forces captured and transferred Taliban and Al Qaeda members from Afghanistan to territories, such as Poland, Lithuania, and Romania. Additionally, the Prosecutor explained that she is considering complementarity and acknowledging national courts’ efforts to address crimes she may recommend to the Pre-Trial Chamber.

Although the US is not a State Party to the Rome Statute, the ICC may have jurisdiction due to Afghanistan, Poland, Lithuania, and Romania being State Parties. This is because the crimes alleged against the US, specifically torture and ill treatment, occurred in the territory of these states. The Prosecutor has not submitted her official request yet, but said she would file her request “in due course.”

Sources

Office of the Prosecutor, Report on Preliminary Examination Activities para. 195 (Nov. 14, 2016), available at https://www.icc-cpi.int/iccdocs/otp/161114-otp-rep-PE_ENG.pdf.

Office of the Prosecutor, The Prosecutor of the International Criminal Court, Fatou Bensouda, Requests Judicial Authorisation to Commence an Investigation into the Situation in the Islamic Republic of Afghanistan (Nov. 20, 2017), available at https://www.icc-cpi.int/Pages/item.aspx?name=171120-otp-stat-afgh.

Alex Whiting, An ICC Investigation of the U.S. in Afghanistan: What does it Mean?, Just Security (Nov. 3, 2017), available at https://www.justsecurity.org/46687/icc-investigation-u-s-afghanistan-mean/.

Paul Seils, Handbook on Complementarity: An Introduction to the Role of National Courts and the ICC in Prosecuting International Crimes 29, International Center of Transitional Justice (2016), available at https://www.ictj.org/sites/default/files/ICTJ_Handbook_ICC_Complementarity_2016.pdf.

ASP Background Briefings | Development of the Crime of Aggression at the ICC

Article 2(4) of the United Nations Charter sets out a prohibition on the use of force “against the territorial integrity or political independence” of other States. After World War II, the International Military Tribunal at Nuremberg expanded upon this concept, creating the “crime of aggression.” This was the first time individuals were held responsible for conduct which previously had only been enforced against States under the Charter.

Thirty State Parties to the Rome Statute have ratified the Kampala Amendments from 2010. This means that the crime of aggression should be activated in December 2017, provided that the State Parties to the Rome Statue decide by a 2/3 majority vote to activate the Court’s jurisdiction for the crime.

If the activation process succeeds, the ICC may investigate and prosecute crimes of aggression. The Court may exercise jurisdiction either through State referral (Article 15bis), or by Security Council referral (Article 15ter). Alternatively, the Prosecutor for the Court could start an investigation. Jurisdiction will apply only for acts of aggression after the amendments come into force, and the “aggressor” State Party must not have opted out of the Court’s jurisdiction for aggression.

Article 8bis of the Rome Statute defines the crime of aggression as “planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.”

Paragraph 2 designates an act of aggression as “the use of armed force by a state” against another State, which is not consistent with the UN Charter, most specifically Chapter 7. The acts designated as acts of aggression (even without a declaration of war) were codified from the UNGA Resolution 3314, and include:

(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation […] by the use of force of the territory of another State or part thereof;

(b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;

(c) The blockade of the ports or coasts of a State by the armed forces of another State;

(d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;

(e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;

(f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;

(g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.

It is unclear at this time how many State Parties will potentially enact domestic legislation providing for the Crime of Aggression. The biggest concern for most states is complementarity, and enacting domestic legislation could allow State Parties to potentially avoid ICC prosecution due to their domestic measures and possible domestic investigations into the crime. Furthermore, in line with the principle of only being tried once for one’s conduct, “ne bis in idem” will apply to the Crime of Aggression.

Sources

UN Charter, Art. 2(4), available at http://www.un.org/en/sections/un-charter/chapter-i/index.html.

International Crimes Database, Crime of Aggression, available at http://www.internationalcrimesdatabase.org/Crimes/CrimeOfAggression.

The Global Campaign for Ratification and Implementation of the Kampala Amendments on the Crime of Aggression, Conditions for Action by the ICC, available at https://crimeofaggression.info/role-of-the-icc/conditions-for-action-by-the-icc/.

Liechtenstein Institute on Self-Determination, Handbook: Ratification and Implementation of the Kampala Amendment to the Rome Statute of the ICC, available at https://crimeofaggression.info/documents/1/handbook.pdf.

UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), (Jul. 17 1998), available at https://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf.

Side Events: 16th Assembly of States Parties | Victims of Hissène Habré: the struggle for reparations continues

By Kirsten Lavery, PILPG Program Manager

On December 7, 2017, the government of Switzerland, Human Rights Watch, and REDRESS convened an event entitled “Victims of Hissène Habré: the struggle for reparations continues” in the sidelines of the ASP Meetings of the ICC. In 2016, Hissène Habré, the former dictator of Chad, was convicted by the Extraordinary African Chambers (CAE) in Senegal for crimes against humanity, war crimes, and torture. The Habré trial has rightly been hailed as a victory for all those that fought for justice, particularly the victims that called for justice for over 20 years. The Habré trial was also a victory for the African continent as an example of complimentary jurisdiction and the demonstration of the ability of Africa to deliver justice for Africans on the continent. The trial included the active participation of victims, including many women who broke taboos in Chad to testify openly regarding their experiences as sex slaves during the Habré regime. In 2017, the CAE confirmed Habré’s verdict and ordered Habré to pay roughly $150 million in compensation to his victims. The CAE located and froze less than $1 million in assets and mandated that the African Union establish an AU Trust Fund to locate and seize additional assets. This Trust Fund has yet to be established and victims have not yet received reparations.

The event focused on considering whether equitable justice can be achieved without the effective implementation of reparations. Following introductory remarks and a screening of a video by Human Rights Watch that showed footage of the trial, a civil party representative in the proceedings spoke regarding his experience. He was a victim of prolonged torture by the regime and inquired why victims of such heinous crimes were required to fight for justice for so long.

He noted that while the Habré verdict was an important step, reparations are still critical. He explained that reparations address several dimensions of the harm suffered by the victims, but its psychological impact is the most important. In this sense, reparations offer the victims of torture the opportunity to restore their dignity. He stated that reparations are often a matter of life or death for victims of gross human rights violations, who many times have lost everything as a result of the crimes suffered. He further stressed that Chad and the African Union have the obligation to ensure reparations are provided for the victims, as required by the Court’s judgment. However, in recognition of the financial weakness of Chad, he stressed that external funding is needed. He stated that victims believe that foreign states that encouraged the dictatorship of Habré should be required to provide compensation.

In addition, a lawyer involved in the Habré trial and a reparations specialist gave their views on best practices to establish a Trust Fund to effectively implement reparations. These experts noted the concerning delay in establishing the Trust Fund by the AU. Currently, a draft statute is circulating that will be considered at the next AU Summit this January. The necessity of establishing the Trust Fund with urgency was stressed, so that victims can achieve full justice within their lifetimes. As there will still be a lack of available assets once the Trust Fund is established, technical expertise and financial tools are needed to locate and seize assets that can contribute to the Trust Fund. It was noted that given the lack of expertise in this area by human rights lawyers, corporate law firms that conduct investigations should consider providing pro bono assistance. In addition, support is needed to perform victim outreach and to ensure that the implementation of reparations is a victim-centered process that avoids re-traumatization. The speakers further highlighted options for structuring and funding reparations, concluding that a hybrid approach where donors support the fund to build its capacity to reparations together with the seizure of assets will likely be needed. In addition to continued efforts to identify assets of the former Habré regime that can be seized, the responsibility of Chad to provide funds was stressed. The speakers noted that relaying on donors to fund reparations can be problematic, as it blurs the lines between reparations and broader development assistance, thus undermining the purpose of reparations. Given this, the role of donors in building capacity instead of providing compensation was stressed. The speakers further suggested that the option of a staggered payment plan would help facilitate payments in the Trust Fund by the government of Chad.

The event concluded with further emphasize on the necessity of reparations to achieve equitable justice for the victims of the Habré regime. The establishment and implementation of the Trust Fund for Habré victims has the potential to acknowledge victim suffering and should remain a priority on the international agenda.

Side Events: 16th Assembly of States Parties - From Nuremberg to The Hague and Beyond: Critical Reflections of the State of Criminal Justice Today

By Sophie Bones, PILPG Law Fellow

The International Nuremberg Principles Academy is an organization that promotes international criminal justice and human rights. They do so by imparting invaluable knowledge via training on the investigation and prosecution of international crimes at the national level. Their mission is to assist states in doing better domestically. Dr. Serge Brammertz, Chief Prosecutor of the ICTY and President of the Academy, gave Africa as an example of how their work is impactful. He says the biggest problem in regard to investigating and prosecuting crimes in Africa is lack of knowledge. In the past year, they have done training sessions in Kenya, South Sudan and Rwanda bringing the expertise of those who work at international criminal tribunals to (mostly) local prosecutors. The Academy uses a case study developed from Security Council reports and established evidence to provide a realistic simulation for the domestic prosecutors to practice with. This is sent in advance, giving participants time to prepare fully. The training sessions train participants in a range of skill sets, from the use of evidence to witness interviews. In the next year they are bringing training to the Central African Republic, Côte D’Ivoire, Senegal, and Mali.

The Academy members reflected on challenges to international justice generally, and took the closing of the ICTY as a moment to reflect on what has worked and what hasn’t. Their main lessons when thinking about the future were threefold.

Firstly, that we missed the mark in terms of the limitations of the criminal justice process. In the future, we need to be realistic about what it can achieve, because the reality is that the current court system doesn’t live up to promises contained in the statutory preambles regarding peace and reconciliation. Criminal tribunals can contribute in important ways, but they cannot solve the problem of peace by themselves.

Secondly, transitions require much more than criminal justice. They require dialogue, societal and legal reforms, and a struggle with the truth. Capacity building in national governments is key to successful transitions.

Finally, the complementarity principle must be fulfilled. It is this principle that empowers states to prosecute crimes themselves, and the ICC should be a last resort.

Personal observations:

Complementarity is the principle that states, first and foremost, bear the responsibility to prosecute crimes domestically, and that the ICC is merely complementary to the domestic criminal system. This is a continuing issue at the ICC, and is seen as one of the most important components of fighting impunity. The ICC can only try so many cases, and only the most senior of officials. Domestic mechanisms are more suited to broader prosecutions encompassing a range of actors. The Academy seeks to enforce and encourage this principle by equipping the necessary domestic prosecutors with the tools to successfully take on these cases. They are seeking to bridge the gap between the crimes being committed and the accountability mechanisms set up to deal with them. This will be an important part of the future for international criminal justice. PILPG is involved in a number of transitional justice projects, for example in South Sudan with the proposed Hybrid Court, and it is work like this that ensures such mechanisms are staffed by competent prosecutors who are fully able to deal with the intricacies of war crimes prosecutions.

ASP Plenary Meetings | First and Second Plenary Meetings of the 16th ASP

FIRST PLENARY SESSION

The First Plenary Session welcomed the visiting delegations of States Parties on the morning of Monday 4th December. The core tasks that will be focused on during the ASP are the judges’ elections, the budget, cooperation, aggression, and the trust fund for victims, among others.

President Kaba of the ASP was invited to speak, giving a moving farewell. He reflected on the legacy of his presidency, and highlighted that legal subsidiarity was a key principle in moving forward. He said it was up to states to judge and try those responsible for the most serious crimes on their own soil, and that the ICC should be a court of last resort. Further, he emphasized the importance of the trust fund for victims, and said that the court should not have to weigh up which cases to take due to limited resources. He believes that equipping the prosecutor’s office with the necessary funds would change the abilities of the court, and hopefully in turn improve the court’s relationship with African states. He also reflected on the crime of aggression, and said that the ASP must act wisely and through consensus activate the court’s competence. Finally, he concluded on a note of hopefulness. Senegal, he said, will continue to work to tackle impunity and to make sure the most serious crimes are never committed again. He wants a new mission to be mandated to the court – to make itself redundant. He envisages a world where the ICC is no longer needed as it will “prove that evil has been driven out of the world” and universal justice will be accepted in each and every state.

The President of the ICC gave the report on activities of the court. She spoke of the unprecedented judicial workload, and how the ASP is an excellent forum for constructive dialogue among all Member States. She said the court seeks to contribute to this dialogue and was willing to listen to all views and concerns without prejudice to its judicial independence. She reflected on the new efficiency measures. As a judicial institution the court is a distinct kind of international organization, judicial independence is integral to the functioning of the court. However, this independence should not get in the way of efficiency. She spoke of the concrete reforms put in place that are already having a visible impact in courtroom and cases e.g. the reduction required for some phases, or aspect of proceedings. Next, she said, there are certain areas upon which the court should now focus, namely the representation of victims, reparations, and legal aid. In the last three years the court has sought to improve by collective discussions to promote cohesive judicial culture and to accelerate proceedings, increase predictability, and facilitate understanding – which she admitted was difficult in multicultural surroundings. She said she hopes the judges will approach this complex court with flexibility, an open mind, and a cooperative attitude.

ICC Prosecutor Bensouda gave an overview of her Office’s work over the past year. She said that she views the ICC as a firmly rooted but still evolving institution, an independent judicial body that is unique in many ways that must work without fear or favor. She recalled that there had been successful prosecutions for three convictions in 2016. She also recalled that the Office has worked to investigate crimes in Libya, and that investigations continue with Darfur, Cote D’Ivoire, the Central African Republic, and Georgia. Further, that there are a number of preliminary investigations being conducted. She believes that the results concerning Burundi and Afghanistan are illustrative of the progress that has been made. She strongly asserted that the investigation into crimes committed in Burundi would not be hampered by their withdrawal, which will have no effect over alleged crimes committed whilst they were a state party nor on their obligation to cooperate with the court. She emphasized that the full backing of the court was integral to its functioning in light of the 15 outstanding arrest warrants and calls for greater collaboration between the Court and Member States. She concluded by saying that, on the eve of the Rome Statue’s 20th anniversary, she took the humble view that “we are not standing today at a crossroads for the future of international criminal justice – it is on the march”. The court is increasingly living up to its promise in contributing to the emergence of a law-based criminal order. It is up to states parties first and foremost as custodians of Rome statutes to stand by its values.

Finally six members to Committee of Budget and Finance were elected, and the majority of the 18 Members of the Bureau. The new President of the ASP was elected; Mr. O-Gon Kwon of the Republic of Korea will take over from President Kaba.

SECOND PLENARY SESSION

The Second Plenary Session saw the election of two out of the six ICC judges being elected. Ms. Luz del Carmen Ibañez Carranza of Peru, and Ms. Tomoko Akane of Japan were the first two candidates named as judges during the first ballot. Tomorrow will show the results of the second ballot, and this will go on until six judges have been elected.