On November 12, 2015, Ms. Fatou Bensouda, Prosecutor of the International Criminal Court (ICC), published her annual Report on Preliminary Examination Activities (2015), which details the preliminary examination activities conducted by her office between November 1, 2014 and October 31, 2015. These included two situations – Georgia and Honduras – in which the Office of the Prosecutor (OPT) has concluded its preliminary examination, and seven situations that it is still examining: Afghanistan, Colombia, Guinea, Iraq/United Kingdom, Palestine, Nigeria, and Ukraine. The OTP completed its preliminary examination of Honduras and concluded that the crimes allegedly committed are not within the ICC’s jurisdiction, but noted the examination could be reopened if new evidence becomes available. See ICC Office of the Prosecutor, Report on Preliminary Examination Activities (2015), para. 289. The OTP also completed its preliminary examination of Georgia; pursuant to authorization from the Pre-Trial Chamber, the situation will be investigated. [ICC Press Release]
Additionally, the 14th session of the Assembly of States Parties (ASP) to the Rome Statute will take place from November 18 to 26, 2015 in The Hague, Netherlands, bringing together the 123 States that have accepted the ICC’s jurisdiction to discuss the tribunal’s laws and 2016 budget, as well as strategies to increase Member States’ cooperation with ICC investigations and the domestic implementation of ICC rulings and of the Rome Statute. Civil society organizations will be able to observe the session’s meetings. For more information about the 14th session visit ICC’s webpage dedicated to the ASP. See Coalition for the ICC, Assembly of States Parties 14.
Next month, the ICC will move into its permanent premises after 13 years in an interim facility provided by the Dutch government and following the completion of construction on its dedicated building. [ICC Press Release: New Premises] Note the ICC’s new address as of December 1, 2015 on its Contact webpage.
In January 2016, the ICC will release a convicted prisoner for the first time, pursuant to a decision by the Appeals Chamber to reduce Germain Katanga’s sentence from 12 to 8.25 years. [Reuters] The ICC convicted Mr. Katanga in 2014 on charges of crimes against humanity and war crimes committed in 2003, which were connected to a larger context of conflict in the Democratic Republic of Congo. [ICC Press Release: Katanga]
Report on Preliminary Examination Activities 2015
The ICC’s Office of the Prosecutor conducts a preliminary examination of all communications and situations to determine whether they meet the criteria set forth in the Rome Statute for opening an investigation. An examination by the OTP may be initiated on the basis of information sent by individuals, groups, States, intergovernmental organizations or non-governmental organizations; or pursuant to a referral from a State Party, the United Nations Security Council, or a State that has accepted jurisdiction of the ICC under Article 12(3) of the Rome Statute. The Prosecutor considers issues such as jurisdiction, admissibility, and the interests of justice in carrying out the examination. See ICC Office of the Prosecutor, Report on Preliminary Examination Activities (2015), 1-2.
Situations under Phase 2 (Subject-Matter Jurisdiction)
In determining whether a situation is within the ICC’s jurisdiction, the OTP conducts a factual and legal assessment of the alleged crimes. See id. at 5. It evaluates “whether there is a reasonable basis to believe” that the acts committed could meet the Rome Statute’s definition of a war crime, crime against humanity, or act of genocide. Id. In addition, the OTP screens out situations that it is not authorized to address because they do not concern: a State party (by virtue of acts committed by its national(s) or on its territory), a situation that has been referred by the Security Council, or a situation referred by a non-State party on an ad hoc basis.
The OTP is still analyzing and verifying information, including 1,146 witness statements, to determine whether the alleged torture, unlawful killing, rape and sexual violence, and denial of a fair trial rights of detainees in Iraq from 2003 until 2008 by UK officials fall within the ICC’s jurisdiction and whether they were committed on a large scale pursuant to plan. In reaching its conclusion, the OTP will also consider the findings of UK investigations into the alleged crimes and relevant proceedings in the High Court of Justice of England and Wales. See id. at 8-10.
The OTP continues its assessment of whether there is a reasonable basis to believe that the alleged crimes that occurred during the Gaza conflict of July 7 to August 26, 2014 have been or are still being committed. Allegedly, more than 2,000 Palestinians and 70 Israelis were killed during this conflict. The OTP is examining information provided by reliable sources about alleged crimes by Palestinian armed groups – including indiscriminately firing 4,881 rockets and 1,753 mortars towards Israel – and the alleged crimes committed by the Israel Defense Forces (IDF) – including attacking civilian residential buildings, United Nations facilities, and hospitals. Additionally, according to the UN Office for the Coordination of Humanitarian Affairs (OCHA), the Israeli government destroyed 590 Palestinian-owned buildings in the West Bank in 2014. See id. at 13-17.
With respect to crimes allegedly committed at the Maidan protest events against the Yanukovych government between November 21, 2013 and February 22, 2014, particularly the use of excessive force by Ukrainian security forces against protesters and journalists, the OTP concluded that these crimes did not constitute crimes against humanity because they were not widespread or systematic. In reaching this conclusion, the OTP reasoned that the Ukrainian security forces were responding to perceived threats to public safety and their actions were aimed at limiting the protests rather than acting as part of a coordinated plan against the protest movement. However, the report notes that the OTP could reconsider its assessment if it receives new evidence showing the crimes were systematic or widespread in nature. See id. at 20-23.
Regarding crimes allegedly committed after February 20, 2014 in Ukraine, including in Crimea and fighting in eastern Ukraine, the OTP is analyzing information to determine whether these crimes are within the ICC’s jurisdiction. The OTP’s assessment will include the findings of national and international investigations concerning the shooting down of Malaysia Airlines flight MH17 in July 2014. See id. at 24-25.
Situations under Phase 3 (Admissibility)
The OTP’s assessment regarding admissibility generally focuses on whether national authorities are willing and able to undertake appropriate proceedings to address the alleged crimes (referred to as “complementarity”) and the gravity of the violations, meaning their scale, nature, manner of commission, and impact. See id. at 2-3.
The OTP is still analyzing the admissibility of abuses committed during the armed conflict in Afghanistan after May 1, 2003 by three separate groups of alleged perpetrators: members of the Taliban and their affiliates, members of Afghan government forces, and members of international forces. The alleged crimes committed include killings, abductions, torture and other forms of ill treatment, attacks on civilian structures, and the recruitment and use of children in hostilities. As part of its assessment, the OTP will also gather more information concerning the genuineness of relevant national proceedings and determine whether an investigation would not serve the interests of justice. See id. at 27-31.
With respect to crimes committed during the armed conflict between government forces, paramilitary armed groups and rebel armed groups in Colombia since November 2002 and war crimes that may have been committed since November 2009, the OTP identified five areas that required further investigation. In determining the admissibility of potential cases of murder, torture, attacks against civilians, imprisonment, rape and other sexual violence, the OTP continues to examine: developments relating to the peace process, proceedings related to forced displacement, proceedings related to the expansion of paramilitary groups, proceedings related to sexual and gender-based crimes, and proceedings related to killings and enforced disappearances. The OTP will also examine the terms of the Special Jurisdiction for Peace in Colombia agreement, which establishes a tribunal to prosecute perpetrators of grave crimes committed during the armed conflict. The OTP will further engage in consultations with the government of Colombia, victims, and civil society organizations. See id. at 32-39.
With respect to the “28 September massacre” in 2009, during which people were allegedly murdered, disappeared, raped, sexually mutilated, tortured, arbitrarily detained, and attacked based on their perceived ethnic or political affiliations, the OTP will continue to monitor Guinea’s efforts to address these human rights violations. The Conakry Appeals Court General Prosecutor appointed a panel of three Guinean judges to investigate the alleged crimes, which led to the issuance of 14 indictments against high-level political and military officials. Additionally, at least 400 victims testified before the panel of judges. The OTP noted the progress Guinea has made and its cooperation with the OTP, UN, and civil society. The OTP will encourage Guinea to finish their national investigation and proceed with a trial in 2016. See id. at 40-43.
The OTP identified eight potential cases concerning crimes against humanity and war crimes committed between 2012 and 2015. Six cases concern actions by Boko Haram, a militant Islamist group, and two cases concern actions by the Nigerian Security Forces. Boko Haram allegedly abducted and imprisoned civilians; recruited children to participate in the hostilities; engaged in gender-based violence, inhumane treatment, and murder; and destroyed civilian buildings, including mosques and churches. In response to the actions of Boko Haram, the Nigerian Security Forces allegedly perpetrated attacks against civilians and conducted mass arrests of boys and young men suspected of being affiliated with Boko Haram, who were then tortured and summarily executed. See id. at 45-50.
In determining the admissibility of the alleged crimes, the OTP will gather information from Nigerian authorities, consider the findings of national proceedings, and determine whether there was a gender component to the crimes. The OTP will also visit Abuja, Nigeria to share information on potential cases with the new Attorney-General of the Federation. See id. at 51.
Completed Preliminary Examinations
The OTP completed its assessment of the situation in Georgia and concluded that there is a reasonable basis to proceed with an investigation. On October 13, 2015, the OTP requested the Pre-Trial Chamber to authorize an investigation into the situation in Georgia with regard to crimes allegedly committed between July 1 and October 10, 2008. According to the report, there is a reasonable basis to investigate the killing, forcible displacement, and persecution of ethnic Georgian civilians, as well as the destruction of their property, by South Ossetian forces and possibly the Russian armed forces. Additionally, the OTP recommends an investigation into the attacks against Georgian peacekeepers by South Ossetian forces and against Russian peacekeepers by Georgian forces. See id. at 52-60.
According to the OTP, there was insufficient information to conclude that the alleged killings of more than 150 individuals during the post-election period (January 2010 – September 2014) and the alleged killings of more than 100 members of campesino (peasant farmer) movements in the Bajo Aguán region from January 2010 to September 2013 occurred as part of a campaign against the civilian population. The information available to the OTP suggested that these deaths were likely a result of an increase in criminal and drug trafficking organizations. Therefore, the OTP found that these alleged crimes did not constitute crimes against humanity under Article 7(1) (“attack directed against a civilian population”) of the Rome Statute. While the OTP noted that this was a “borderline case,” it determined there was no reasonable basis to proceed with an investigation and closed its preliminary examination, but noted that the examination could be re-opened if new evidence became available. See id. at 61-65.
14th Session of the Assembly of States Parties
The 14th session of the Assembly of States Parties (ASP) will take place from November 18 to 26, 2015 in The Hague. The ASP’s role is to manage the ICC’s substantive and procedural texts and budget and encourage ICC Member states to further cooperate with the ICC, including by prosecuting serious crimes within their domestic judicial systems. This year’s ASP will include elections for the Board of Directors for the Trust Fund Victims, the Committee on Budget and Finance, and the Advisory Committee for the Nomination of Judges. States will also participate in a general debate about the Assembly’s work and the Rome Statute system, address the issue of complementarity with respect to sexual and gender-based violence, and attend side events, many of which are organized by NGOs. See Coalition for the ICC, Assembly of States Parties 14.
The session’s agenda also includes discussions on: the use of voluntary cooperation agreements; arrest strategies; 66 recommendations adopted by the ASP in 2007 to improve cooperation; possible deletion of Article 124 to the Rome Statute, which allows States to opt out of the ICC’s jurisdiction for war crimes for seven years following ratification; efficiency and effectiveness of ICC proceedings; and updates to the Resolution on Strengthening the ICC and the ASP (Omnibus Resolution). Civil society organizations will also be able to observe the meetings. See Coalition for the ICC, Assembly of States Parties 14.