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By Bernhard Kuschnik, April 12, 2010

On 31 March 2010, Pre-Trial Chamber II of the International Criminal Court (ICC) held by majority decision that the Office of the Prosecutor (OTP) may commence an investigation proprio motu for crimes against humanity allegedly committed in the Republic of Kenya in relation to the post-election violence of 2007 – 2008. Ratione temporis, the OTP may now investigate crimes from 1 June 2005 (the date of the Rome Statute’s entry into force for the Republic of Kenya) to 26 November 2009 (the date of the filing of the Prosecutor’s Request to allow the investigation).

The Decision, which can be accessed at http://www.icc-cpi.int/iccdocs/doc/doc854562.pdf, has great political and legal implications, as it represents the ICC’s first major ruling showcasing its understanding of the legal elements of crimes against humanity as stipulated in Article 7 of the ICC Statute. ICC Chief Prosecutor Luis Moreno Ocampo opened the OTP Press Conference on 1 April 2010 by reiterating the Decision of the Pre-Trial Chamber, stating “The judges decided. There will be justice in Kenya.” Ocampo stressed that the OTP will conduct the investigations with fairness and impartibility, and with respect for every party in the proceedings, holding “I will engage in this process with the Kenyans, with all the communities. This Court is their Court. Kenyan leaders – women, youth, tribal, judicial, political, religious, all have a role to play. I want to understand them and analyze how my office and all Kenyans can work together to prevent of future violence.”  Ocampo’s eagerness to highlight the process was possibly due to the trouble the OTP faced in the Lubanga and Katanga/Chui trials regarding compliance with the law on disclosure – particularly Article 54(3)(e) of the ICC Statute.

From a legal perspective, the Decision touched on some of the very foundations of the law governing the ICC. The majority found that in accordance with the purpose of the ICC Statute, the general threshold for authorizing an investigation are to be seen as rather low, claiming that, at this stage of the proceedings, the OTP may present to the Chamber any information that may lead to the result when there is a reasonable basis to believe that crimes within the jurisdiction of the ICC had been committed. The Chamber held that the wording ‘reasonable basis to proceed’, included verbatim in Articles 15  and 53 of the ICC Statute, concerned with the role of the Prosecutor and the initiation of an investigation, respectively, displays the same harmonized standard.

As for the interpretation of the legal elements of crimes against humanity, the Court interpreted the contextual element of ‘attack’, which, pursuant to Article 7(2)(a) of the ICC Statute, includes ‘a State or organizational policy’, progressively. The Court held that not only state, or de facto state policy, but also a non – state policy may be sufficient. Not the formal nature and the level of the ‘organization’ should be decisive to form the required policy, but the level of infringement of basic human rights.

ICC Judge Hans Peter Kaul disagreed in a comprehensive and well-written dissenting opinion comprising of no less than 80 pages.  Regarding the standard for opening an investigation, and while agreeing with the majority on the general standard of ‘reasonable basis to proceed’, Kaul stressed that some caution should be exercised as to what sort and quality of information may satisfy this standard. Kaul claimed that contrary to national prosecutions, the OTP should not be allowed to present simply any sort of information, but rather only information that is adequately reliable and credible, because opening proceedings at the ICC may lead to serious multilateral implications. Furthermore, the ICC only concerns itself with the gravest international crimes of universal concern. Thus, the well known national standard of ‘reasonable grounds to believe’ should be handled more strictly in ICC proceedings. In the case at hand, Kaul concluded that the OTP had not presented adequate material particularly with regard to the contextual element  of ‘attack’.

Concerning substantive criminal law, Kaul claimed that great caution should be exercised to transplant case law from international and internationalized tribunals – such as the ICTR, ICTY and SCSL – to ICC law for purposes of legal interpretation.  Simply, the ICC Statute does not mandate that the ICC follow precedents of other Courts. Finally, and by relying on the legal and factual history of crimes against humanity, Kaul made a case for interpreting the term ‘organization’ conservatively as to only include State and state-like entities. Without a stricter interpretation, Kaul believed that the concept of crimes against humanity may expand to ‘any infringement to human rights’, blurring the lines between human rights law and international criminal law. Even though I don’t espouse Kaul’s perspective on this issue, I consider his view reasonable and comprehensible.  What limits me from embracing his opinions is the fact that acts of ‘ad hoc macro-criminality’, such as the drop of an atomic bomb, the poisoning of a city’s water supply system, or an intentional plane crash into a skyscraper might possibly not be included when applying Kaul’s interpretation, yet they should qualify as crimes against humanity due to comparable quantity and quality of damage caused (elaborated upon elsewhere, see B. Kuschnik, Der Gesamttatbestand des Verbrechens gegen die Menschlichkeit, 235 et seq).

Since the majority of ICC Pre-Trial Chamber II refused to concur with Kaul’s conservative interpretation on the term ‘organization’, the ICC will be free to possibly handle such scenarios under its jurisdiction in the future.

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By Debbie, February 4, 2010

Sudan’s Leader May Be Accused of Genocide

The president of Sudan, who is already facing an international arrest warrant, came under new legal scrutiny on Wednesday when appeals judges at The Hague reopened the possibility that he may be charged with genocide.

The Sudanese leader, Omar Hassan al-Bashir, became the first sitting president to face an arrest order by the International Criminal Court in March, when pre-trial judges said he should be tried for crimes against humanity and war crimes in Sudan’s region of Darfur. But the judges rejected the prosecutor’s request to charge Mr. Bashirwith genocide, arguing that the evidence presented was insufficient.The court’s appeals chamber, in a short session on Wednesday, directed the judges to reconsider the prosecution evidence and to decide anew whether Mr. Bashir’s actions could amount to genocide. They found that the judges had used far higher standards of proof than were needed for an arrest warrant, and that the dismissal of the prosecutor’s genocide charges therefore amounted to an “error or law.”

Lawyers following the proceedings said that to sign an arrest order at this court, judges must find that there are “grounds for charges” but that in this case the judges had sought a level of proof needed to find someone guilty or innocent.

The re-opening of the genocide question may not bring Sudan’s president, who has thus far defied the court, any closer to trial in The Hague. But genocide charges carry a heavy weight that could affect his international dealings and isolate him.

For Entire Article: http://www.nytimes.com/2010/02/04/world/africa/04bashir.html?scp=1&sq=bashir&st=cse

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By Debbie, November 30, 2009

PROSECUTOR REQUESTS OPENING OF ICC INVESTIGATION IN KENYA
See www.iccnow.org for further information

Prosecutor Requests Judges’ Authorization to Investigate Alleged Crimes Committed during 2007-2008 Election Violence

WHAT: On 26 November 2009, the Prosecutor of the International Criminal Court (ICC) Luis Moreno-Ocampo requested the authorization of Pre-Trial Chamber II to open the investigation into crimes allegedly committed in Kenya in relation to the post-election violence of 2007-2008. Judges of Pre-Trial Chamber II will have to consider whether or not there are reasonable basis to proceed with an investigation and that it appears to fall within the jurisdiction of the Court.

WHY: Kenya signed and ratified the Rome Statute and hence is a State Party to the ICC. By becoming a State Party, Kenya has accepted the jurisdiction of the Court over war crimes, crimes against humanity, and genocide committed on its territory or by one of its nationals, thus opening the door for the Prosecutor’s investigation into acts which are not being investigated and prosecuted by national authorities.
HOW: Today is the first time that the ICC Prosecutor seeks to open an investigation on his own initiative i.e. proprio motu, in accordance with article 15 of the Rome Statute. The other situations currently dealt with by the Court were initially referred to the Prosecutor by States Parties or the United Nations Security Council. Indeed, for the Court to open an investigation, a situation can be referred to the Court by a State Party, the UN Security Council or initiated by the ICC prosecutor himself, with authorization of the Judges.
COMMENT AND BACKGROUND:
“With the Kenyan government failing to establish a special tribunal for Kenya, and the impotence of the national legal system, the ICC Prosecutor is fully justified in seeking to open an investigation in the 2007-2008 post election violence in Kenya,” said James Gondi, Program Officer, International Commission of Jurists -Kenya (ICJ-Kenya). “We welcome today’s request as it sends a strong sign of hope to victims that justice will be served in Kenya,” he added.

“Today we urge the Court to develop a clear outreach and communications plan to explain the ICC and the Court’s role in Kenya and to enter in a dialogue with affected communities as soon as possible,” said Stephen Lamony, the Coalition’s Africa outreach liaison and situations adviser. “In this process, the Court should consult local civil society and media to design tailored communications strategies for Kenya,” he stressed.

On 16 July 2009, the Prosecutor had received six boxes containing documents and supporting material compiled by the Waki Commission, an international commission of inquiry established by the Government of Kenya to investigate the violence that occurred between December 2007 and February 2008, following presidential elections. The documentation included a sealed envelope containing a list of suspects identified by the Waki Commission as those most responsible for the violence.
The Prosecutor had also received information from Kenyan authorities on witness protection measures and on the status of legal proceedings carried out by national authorities. Thus far national attempts at addressing the post-election violence have resulted in the establishment of the Kenyan Truth, Justice and Reconciliation Commission and discussions in the government to use the regular judicial apparatus instead of a specially constituted tribunal. Constitutional amendments that would have established a special tribunal, as recommended by the Waki Commission, failed to get the requisite consensus in parliament, which meant that the Kenyan Government missed the deadline for initiating prosecutions by the end of September 2009, a deadline agreed upon by both the ICC Prosecutor and the Kenyan Government delegation which visited the ICC on 3 July 2009.
The Prosecutor has alleged he supports a “three-pronged approach” to the Kenya situation that would involve prosecution by the ICC of those most responsible for the post-election violence coupled with national accountability proceedings for other perpetrators, the format for which would be determined by the Kenyan Parliament. The third prong would include other mechanisms, such as a Truth, Justice and Reconciliation Commission.
The ICC is the world’s first permanent international court to prosecute war crimes, crimes against humanity and genocide. To date, the ICC has issued twelve arrest warrants for investigations in four of the most brutal conflicts of our time: the Central African Republic; Darfur, Sudan; Uganda and the Democratic Republic of Congo. Four suspects have been arrested and one has appeared voluntarily at the Court. The ICC is also monitoring at least seven other situations on four continents.