International Criminal Court Prosecutor’s Annual Report Previews Eight Possible Investigations

ICC Prosecutor Fatou Bensouda at the 18th Session of the Assembly of States Parties
Credit: ICC via Flickr

On December 5, 2019, the Prosecutor of the International Criminal Court (ICC) published the 2019 Report on Preliminary Examination Activities, detailing the status of nine initial assessments by her office of possible war crimes, crimes against humanity, and acts of genocide around the world. See ICC, Report on Preliminary Examination Activities (2019), para. 14. The ninth annual Report covers the Office of the Prosecutor’s (OTP) activities and findings with respect to the status of situations in the preliminary examination stage during the period between December 1, 2018 and November 30, 2019. See id. at para. 17. In that time, the OTP concluded two preliminary examinations, resulting in one authorized investigation. It has eight ongoing preliminary examinations, into the situations of Venezuela, Colombia, Guinea, Iraq/the United Kingdom, Nigeria, Palestine, the Philippines, and Ukraine. See id. at para. 21. Further, at the request of the ICC Appeals Chamber, the Prosecutor filed a reconsideration of her previous decision not to request an investigation into the Gaza flotilla situation referred by Comoros. See id. at para. 20.

Closed Preliminary Examinations

The OTP concluded two preliminary examinations in 2019, and in both it requested authorization from the ICC judges to open investigations. So far, the ICC judges have approved one request to open an investigation, but rejected another. In the Bangladesh/Myanmar situation, last month the judges of the ICC Pre-Trial Chamber III authorized an investigation into possible crimes against humanity committed against the Rohingya people. See id. at para. 18.

Additionally, in April 2019, the ICC Pre-Trial Chamber II rejected the Prosecutor’s request to investigate the situation in Afghanistan. The ICC Appeals Chamber ruled on December 5, 2019 that victims lacked standing to appeal that decision; its ruling on the Prosecutor’s appeal is pending. See ICC, Situation in the Islamic Republic of Afghanistan, ICC-02/17 OA OA2 OA3 OA4, Dissenting opinion to the majority’s oral ruling of 5 December 2019 denying victims’ standing to appeal, 5 December 2019.

Ongoing Preliminary Examinations

The OTP may begin a preliminary examination on the basis of a referral from a State party to the Rome Statute or from the United Nations Security Council, information from individuals, or a declaration from a Sate accepting the ICC’s jurisdiction. See Report on Preliminary Examination Activities, para. 2. Once the OTP identifies a situation based on information received, it will examine the situation in four phases: phase 1 focuses on assessing the seriousness of the situation and eliminating crimes outside of the ICC’s jurisdiction; phase 2 examines subject-matter jurisdiction over the alleged crimes and entails a thorough factual and legal analysis of those crimes; phase 3 focuses on assessing the admissibility of the cases by considering both the adequacy of national proceedings in relation to the alleged crimes and the gravity of the crimes, which refers to the “scale, nature, manner of commission of the crimes, and their impact[s];” phase 4 considers whether “an investigation would not serve the interests of justice,” even when taking into account “the gravity of the crime and the interests of victims.” See id. at paras. 6-8, 15.

Situations Under Phase 1

Out of 795 communications that the OTP received between December 1, 2018 and November 30, 2019 (the reporting period) alleging crimes that may be within the ICC’s jurisdiction, it determined that only 41 warranted further analysis. See id. at para. 23. During the reporting period, the OTP responded to four of the 41 situations that had warranted further analysis. See id. para. 26. The OTP reached conclusions on each of the four situations, two of which concerned North Korea, one the Philippines, and another Yemen. See id. paras. 28, 35-36, 41-44, 51-52, 54-56. The OTP concluded that none of these situations met the Court’s jurisdictional requirements. See id.

Situations Under Phase 2 – Subject-Matter Jurisdiction 

With regard to Venezuela, the OTP continued to receive information and to analyze public reports, including reports published by the UN Office of the High Commissioner for Human Rights and the Inter-American Commission on Human Rights, with respect to the preliminary examination into Venezuela, which was announced on February 8, 2018 and concerns alleged crimes committed during ongoing demonstrations and related to political unrest since at least April 2017. See id. at paras. 57-58, 81. In particular, the investigation will examine allegations that State security forces used excessive force against demonstrators and arrested thousands, who were then subjected to ill-treatment and torture in detention. See id. at paras. 73-74. During the reporting period, the OTP analyzed whether the alleged crimes amount to crimes against humanity under Article 7 of the Rome Statute. See id. at para. 75. To date, the OTP is almost done with its assessment of subject-matter jurisdiction (phase 2), and plans to finalize it “in early 2020.” See id. at paras. 81-83.

Situations Under Phase 3 – Admissibility

The preliminary examination into Colombia, which began in June 2004, concerns alleged crimes against humanity committed since November 2002 and alleged war crimes committed since November 2009. See id. at paras. 84, 86, 90. The alleged crimes occurred in the context of Colombia’s armed conflict among government forces, paramilitary groups, and rebel groups. See id. at paras. 87-89. The alleged crimes include murder, imprisonment, torture, rape, outrages on personal dignity, taking of hostages, and using children to engage in hostilities. See id. at para. 91. The national proceedings surrounding these crimes, which are relevant to the OTP’s admissibility assessment, are also under investigation. See id. at para. 93. During the reporting period, Colombian authorities sent the OTP relevant information related to the national proceedings , and the OTP met with various stakeholders in the Colombian peace process. See id. at paras. 129-131. During 2020, the OTP will continue to assess and follow the status of domestic proceedings and will “conceptualise…the preparation of relevant benchmarks which could enable the Office to complete its preliminary examination.” See id. at paras. 132-133.

The OPT announced the preliminary examination of Guinea on October 14, 2009 and it concerns allegations of crimes against humanity that occurred in Conakry, Guinea on September 28, 2009 when a peaceful rally devolved into a massacre claiming at least 150 lives. See id. at paras. 134, 136. The alleged crimes include murder, severe deprivation of liberty, torture, persecution, enforced disappearances, rape, and other forms of sexual violence. See id. at para. 137. The national proceedings surrounding these crimes, which are relevant to the OTP’s admissibility assessment, are also under investigation. See id. at paras. 141-146. During the reporting period, the OTP conducted two missions to Conakry and published its latest findings on November 11, 2019. See id. at paras. 148-149. The OTP will continue to monitor the work of the steering committee—a national committee tasked with organizing the trial concerning the events that took place on September 28, 2009—including the implementation of conditions related to the trial that may start in June 2020. See id. at paras. 143, 150-152.

The preliminary examination into the situation in Iraq/United Kingdom concerns the alleged war crimes perpetrated by nationals of the UK in the context of the occupation of Iraq from 2003 to 2008. See id. at para. 154. These crimes include murder, torture, and other ill-treatment at the hands of UK personnel throughout Iraqi territory. See id. at para. 163. Although the preliminary examination of Iraq was initially closed in February 2006, it was reopened in May 2014 at the discovery of new information. See id. at para. 155. During the reporting period, the OTP moved towards finalizing its admissibility assessment, which it expects to conclude during 2020. See id. at para. 175. In this respect, it received additional information and followed the development of a UK proposal governing conflicts, including the Iraq conflict. See id. at paras. 172-174.

The preliminary examination of Nigeria , which was announced in November 2010, concerns alleged war crimes and crimes against humanity committed by the Islamic extremist group Boko Haram and Nigerian security forces between January 1, 2013 and March 31, 2015. See id. at paras. 176-179, 181-182. During the reporting period, the OTP updated its phase 2 (subject-matter jurisdiction) assessment to include crimes committed after March 2015. See id. at paras. 178, 181. During the reporting period, the OTP also conducted two missions to Nigeria with the goal of finalizing its assessment of the existence and authenticity of national accountability mechanisms. See id. at para. 194. In 2020, the OTP will continue to maintain contact with partners and stakeholders, and will urge Nigeria to prosecute and investigate the relevant crimes at the national level. See id. at para. 199. In the absence of cooperation from Nigerian authorities to prosecute crimes, the OTP will determine the admissibility of cases it has identified. See id.

The preliminary examination of Palestine concerns crimes allegedly committed by armed groups in Palestinian territory since June 13, 2014, stemming from the Israeli-Palestinian conflict. See id. at para. 201. Palestinian armed groups are accused of indiscriminately firing rockets and mortars, which resulted in the deaths, injuries, and displacement of civilians. See id. at para. 222. Israeli armed groups are accused of directing attacks toward civilian buildings and indiscriminately attacking civilian areas, causing hundreds of deaths. See id. at para. 226. During the reporting period, the OTP communicated with various stakeholders to gather information, assessed new allegations of crimes within the ICC’s jurisdiction, and followed with concern Israeli proposals to annex the Jordan Valley. See id. at para. 228-229

The OPT announced its preliminary examination of the Philippines on February 8, 2018. See id. at para. 231. It concerns alleged crimes against humanity committed since July 1, 2016 in the context of the “war on crime and drugs,” including extrajudicial killings in ill-treatment. See id. at paras. 233, 237, 243-245. The OTP only has jurisdiction over crimes committed up to March 16, 2019 given that the Philippines’ withdrawal from the Rome Statue became effective on March 17, 2019, exactly a year after it was announced. See id. at para. 235. During the reporting period, the OTP verified and analyzed relevant information to the Philippines’ war on drugs, and expects to make a final decision with respect to the preliminary examination in 2020. See id. at para. 254.

The preliminary examination of Ukraine began on April 25, 2014. See id. at para. 255. It concerns the alleged crimes against humanity and war crimes committed between November 2013 and February 2014 in the context of the Maidan protests, which began in Maidan Nezalezhnosti in Kiev, and related protests in Crimea and eastern Ukraine. See id. at paras. 256-258, 260, 279-280. The “Maidan events” consist of a series of mass protests that represented a push for fuller integration of Ukraine into the European Union, while the events in eastern Ukraine and Crimea refer to protests against the Ukrainian government that have resulted in an armed conflict. See id. at paras. 260-263, 265, 270. The OTP met with several stakeholders during the reporting period, and conducted a mission to Ukraine in June 2019. See id. at para. 286. The OTP will continue to review new information, which it will use to finalize its admissibility assessment in 2020, and to gather information related to national proceedings related to the crimes alleged. See id. at para. 288.

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