On November 14, the International Criminal Court (ICC) released its 2016 annual report on its pending preliminary investigations into alleged war crimes, crimes against humanity, or genocide. [ICC Press Release] The report details the Court’s progress on the 10 situations being evaluated for possible investigation, including two examinations initiated during the reporting period of November 1, 2015 to October 31, 2016 (the situations in Burundi and Gabon). [ICC Press Release] See ICC Office of the Prosecutor, Report on Preliminary Examination Activities (2016), para. 19. The other eight preliminary examinations involve crimes allegedly committed on the territories of Afghanistan, Colombia, Guinea, Iraq/United Kingdom, Palestine, Nigeria, Ukraine, and Comoros (which requested an investigation into the Gaza flotilla raid by Israel of ships sailing under the flags of Comoros, Greece, and Cambodia).
The Office of the Prosecutor examines situations in three phases: first, to assess the situation’s significance and eliminate crimes outside of the ICC’s jurisdiction; second, to officially commence the examination and assess subject-matter jurisdiction over the alleged crimes; and third, to assess both the adequacy of national proceedings on the alleged crimes and the gravity of the crime, which refers to the “scale, nature, manner of commission of the crimes, and their impact[s].” See ICC Office of the Prosecutor, Report on Preliminary Examination Activities, paras. 6-7, 15. Four situations – Afghanistan, Colombia, Guinea, and Nigeria – are in the final stages of preliminary examination. Five of the situations are in the second phase and one situation that was previously dismissed (the Comoros referral) is now under reconsideration. See id. at paras. 15, 308-13. The ICC Prosecutor, Fatsou Bensouda, has indicated she intends to release decisions concerning the situation in Afghanistan and the Comoros referral shortly. [ICC Press Release]
Situations in Phase 2
The preliminary examination of Burundi was announced on April 25, 2016 and concerns crimes allegedly committed since April 2015 during the country’s ongoing social and political unrest, fueled in part by local and international contention surrounding the continued reign of President Pierre Nkurunziza. See ICC Office of the Prosecutor, Report on Preliminary Examination Activities, paras. 22, 25, 28–34. The alleged crimes include killings, imprisonment, torture, sexual violence, enforced disappearances, other inhumane acts, and persecution, committed by both police forces and armed opposition groups. See id. at paras. 39–40, 44, 45-48, 50–52.
In the past year, the Office has reviewed and cataloged information from numerous sources, including Burundian officials and the specially created United Nations Independent Investigation on Burundi, which has investigated and reported on the matter. See id. at paras. 53–54, 57. Despite Burundi’s recent decision to withdraw from the Rome Statute, the ICC’s founding treaty, the preliminary examination may include any additional crimes committed until the withdrawal goes into effect (approximately one year after the notification of withdrawal), and the ICC will retain jurisdiction to initiate an investigation into crimes committed that time. See id. at para. 60.
On September 29, 2016, the government of Gabon submitted a referral to the Office of the Prosecutor requesting an investigation, giving rise to the preliminary examination of Gabon. See id. at paras. 61-62. The referral alleges that opposition leaders in the country are responsible for incitement to genocide and crimes against humanity beginning in May 2016, including those related to the presidential election of August 2016. See id. at paras. 61–62, 66, 70. Violence ensued when incumbent Ali Bongo defeated opponent Jean Ping for the presidency, an outcome many have attributed to voter fraud. See id. at paras. 67–68. In its brief time examining this situation, the Office has been in contact with Gabonese representatives and has begun to gather and review relevant information pertaining to the matter. See id. at paras. 71–72.
The preliminary examination of Iraq and the United Kingdom, which was initiated in May 2014, concerns alleged war crimes perpetrated by U.K. nationals in the context of its occupation of Iraq from 2003 to 2009. See id. at paras. 75, 80–86. The alleged crimes include torture, ill-treatment, rape, sexual violence, and killings. See id. at paras. 89–97. In addition to its continued engagement with the U.K. and non-governmental organizations (NGOs), the Office has reviewed a variety of relevant information thus far, including domestic and regional case law, official publications from the U.K. military, and reports from multiple UN bodies and NGOs. See id. at paras. 98, 100–103. The Office expects to conclude this stage of its examination shortly and will continue to monitor the ongoing parallel national proceedings. See id. at paras. 107–08.
Palestine’s preliminary examination, which commenced in January 2015, concerns crimes allegedly committed by armed groups in Palestinian territory since June 2014, stemming from the Israeli-Palestinian conflict. See id. at paras. 109, 111–18. Palestinian armed groups are accused of indiscriminately firing rockets and mortars, which resulted in the deaths, injuries, and displacement of civilians, and using civilians as human shields. See ICC Office of the Prosecutor, Report on Preliminary Examination Activities, paras. 123–25. Israeli armed groups are accused of directing attacks toward civilian buildings, including hospitals and schools, and broadly attacking civilian areas, causing at least one hundred deaths. See id. at paras. 126–29. Additionally, the Israeli government has allegedly engaged in settlement activity, resulting in displacement due to the destruction of homes, and allegedly engaged in the ill-treatment of Palestinians in Israeli military court. See id. at paras. 130-33.
Due to the escalation of tensions in the area since October 2015, the Office has been monitoring the situation closely and conducting extensive review of relevant documents, evaluating them for substance as well as credibility. See id. at paras. 134, 136–37. The Office maintains a detailed database of over 3,000 reported incidents and continues to engage with various governmental and non-governmental actors in its assessment. See id. at paras. 139–44.
Ukraine’s preliminary examination has been underway since April 2014 and primarily concerns the alleged crimes against humanity of murder, torture, and other inhumane acts committed between November 2013 and February 2014 in the context of the “Maidan” protests, which began in Maidan Nezalezhnosti in Kiev. See id. at paras. 146, 151. The protests represented a push for fuller integration of Ukraine into Europe. See id. at para. 151. Tensions between protesters and security forces rose over time, resulting in injuries on both sides of the conflict as well as in the deaths of some protesters. See ICC Office of the Prosecutor, Report on Preliminary Examination Activities, paras.152–53.
The Office subsequently announced its extension of the preliminary examination to include events occurring in Ukraine since February 2014, including anti-government protests in Crimea and Eastern Ukraine. See id. at paras. 154–70. The alleged crimes associated with those events include killings, abductions, ill-treatment, detention, compelled military service, and sexual crimes. See id. at paras. 171–83. The Office continues to maintain a database of incidents, gather and review evidence, and interact with Ukrainian authorities and other stakeholders on the matter. See id. at paras. 186–91.
Situations in Phase 3
Afghanistan’s preliminary examination focuses on crimes against humanity and war crimes, including torture and ill-treatment, allegedly committed in the context of an armed conflict between pro- and anti-government forces in the country since May 2003. See id. at paras. 193, 196–98. The Office has identified three potential cases involving three separate groups of perpetrators – the Taliban and its affiliates, Afghan authorities, and members of the CIA or United States armed forces – and has found a reasonable basis to believe crimes against humanity and war crimes have occurred, including torture and ill-treatment. The Office has confirmed the admissibility of those cases, subject to the receipt of certain additional information. See id. at paras. 198, 214.
Because American personnel are accused of perpetrating war crimes, such an investigation could have interesting implications in the United States. [New York Times] Although the United States is not a State party to the Rome Statute, Afghanistan is, which means that crimes committed by Americans on Afghan soil fall within the purview of the Court. See ICC, How the Court Works. Furthermore, the Court may be more inclined to pursue an investigation of Americans due to the criticism it has received for seemingly targeting African leaders for prosecution. [New York Times]
The Office is completing its Phase 3 assessment of this situation and a decision as to whether it will initiate an investigation is due “imminently.” See ICC Office of the Prosecutor, Report on Preliminary Examination Activities, para. 230. The Office has hinted strongly at the possibility of initiating an investigation, stating that it “would have no substantial reasons to believe that the opening of an investigation would not be in the interests of justice.” See id. at para. 225.
Colombia’s preliminary examination, which began in June 2004, concerns alleged crimes against humanity committed since November 2002 and alleged war crimes committed since November 2009, all of which occurred in the context of an armed conflict among government forces, paramilitary groups, and rebel groups. See id. at paras. 231, 233–34. The alleged crimes include murder, imprisonment, torture, sexual violence, attacking civilians, taking hostages, and enlisting children to engage in hostilities. See id. at paras. 237–38.
The Office has analyzed multiple facets of the situation, focusing in particular on sexual and gender-based crimes and “false positives” with respect to reported killings. See id. at paras. 241–44, 249–51, 258. Moving forward, the Office will continue to interact with Colombian officials and monitor developments surrounding the Colombian peace negotiations. See id. at paras. 262–63.
The preliminary examination of Guinea was announced in October 2009, and concerns allegations of crimes against humanity that occurred in Conakry, Guinea on September 28, 2009 when a peaceful political rally devolved into a massacre claiming at least 156 lives. See id. at paras. 266–67. The alleged crimes include murder, imprisonment, torture, rape, sexual violence, persecution, and enforced disappearances. See ICC Office of the Prosecutor, Report on Preliminary Examination Activities, para. 270.
As part of its admissibility assessment, the Office is evaluating the quality of an ongoing national investigation into the matter, focusing on whether authorities fully intend to seek justice. See id. at paras. 271, 277. ICC representatives have also visited Conakry twice in the past year, held meetings with various stakeholders, engaged with civil society, and encouraged “a coordinated approach between all the relevant actors.” See id. at paras. 278, 280–81.
The preliminary examination of Nigeria, which was announced in November 2010, concerns alleged crimes against humanity and war crimes committed in the context of the ongoing armed conflict between the Islamic extremist group Boko Haram and Nigerian security forces since July 2002. See id. at paras. 284, 286–87, 291.
The Office has monitored the conflict’s developments and, in accordance with ICC policy, conducted further inquiry into gender-based crimes committed by Boko Haram. See id. at paras. 288–92. The Office has identified eight potential cases and as part of its admissibility assessment, is currently evaluating Nigeria’s ability and willingness to investigate and prosecute those cases domestically. See id. at para. 298. As it proceeds in its examination, the Office plans to “further build on the cooperation received from Nigerian authorities” and consult with other stakeholders to “identify pending impunity gaps and the scope for possible remedial measures.” See ICC Office of the Prosecutor, Report on Preliminary Examination Activities, para. 307.
Situation Under Reconsideration
Registered Vessels of Comoros, Greece, and Cambodia
The preliminary examination of Comoros, Greece, and Cambodia concerns crimes committed during the Israeli raid of humanitarian ships in the Mediterranean Sea on May 31, 2010, which led to the deaths of 10 passengers. See id. at para. 319. Only three of the eight ships in the flotilla were registered to States parties to the Rome Statute (Comoros, Greece, and Cambodia), and the ICC retains jurisdiction over the events that occurred on those ships. See id. at para. 314.
The initial examination commenced in 2013, but was dismissed in 2014 after the Office of the Prosecutor concluded that the situation did not involve sufficiently serious crimes.. See id. at paras. 308–09. However, when Comoros sought review of that decision, the Pre-Trial Chamber I asked the Prosecutor to reconsider and, in 2015, she reopened the examination. See id. at paras. 310–13. The Office is in the process of reviewing anew all the information upon which the 2014 dismissal report was based as well as information collected since that time. See id. at paras. 328–31.