This is Part II of an International Justice Day Top-10 Round Up. Part I—which discussed the recent judgment against Hissène Habré in the Extraordinary African Chambers, the consequences (vel non) of recent travel of President Al-Bashir to ICC States Parties, and the Open Society Justice Initiative’s finding that crimes against humanity have been committed in Mexico—is here.
4. Jean-Pierre Bemba Convicted: On March 21, 2016, the International Criminal Court (ICC) convicted former militia head Jean-Pierre Bemba of war crimes and crimes against humanity, namely pillage and sexual violence, in the Central African Republic for events transpiring in 2002-3. In June, Bemba was sentenced to 18 years’ imprisonment (subject to appeal); the Court is now considering potential reparations. Points of significance:
- This is the first ICC judgment devoted to adjudicating the international criminal law relevant to sexual violence. My colleague Daryn Reicherter of the Stanford Medical School’s Department of Psychiatry and Behavioral Science testified during the sentencing phase about the long-term impact of mass rape on victims, their families, and their communities. His expert report was produced by the Stanford Human Rights in Trauma Mental Health Laboratory of which I am co-founder.
- The case is also significant in that it offers the first comprehensive analysis by the ICC of the doctrine of superior responsibility, as elaborated on these pages by Alex Whiting.
- Bemba is involved in a second set of proceedings alleging his involvement with others (including his defense counsel) in committing offences against the administration of justice (in breach of Article 70 of the ICC Statute)—namely efforts to corruptly influence witnesses. Evidence in this case includes records from Western Union as well as telephone intercepts provided by European countries pursuant to requests for assistance (RFA) from the ICC. In pursuing these charges, the ICC considered the right to privacy as an international human right and concluded that no violation occurred because the intercepts were made “in accordance with the law” as required by Article 8(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Following closing statements at the end of May/early June, the Article 70 case was put to the judges.
5. The Aggression Amendments Poised to Enter into Force: The amendmentsadding the crime of aggression to the subject matter of the International Criminal Court (ICC) have achieved the necessary 30 ratifications to enter into force.
- On June 26, 2016, Palestine lodged the 30th ratification of the aggression amendments with the Secretary-General of the United Nations, the official depository for the ICC (other ratifications and statements of commitment to ratify are here). Palestine’s move follows on the heels of its ratification of a whole host of other treaties—including the ICC Statute on January 2, 2015—as detailed by Fionnuala ní Aoláin here.
- In other developments, Kenya has become the first state to avail itself of the opt out clause of the aggression amendments. (Although its declaration was filed last year, it has only just now come to light; Kenya has not yet ratified the amendments themselves). That clause reads:
The Court may, in accordance with article 12, exercise jurisdiction over a crime of aggression, arising from an act of aggression committed by a State Party, unless that State Party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar. The withdrawal of such a declaration may be effected at any time and shall be considered by the State Party within three years.
- Since its re-engagement with the ICC in 2009, the United States (among other states) has been skeptical of the aggression amendments (its current policy is set forth here, as announced by Undersecretary Sarah Sewell at the American Society of International Law’s 2015 Annual Meeting). Some human rights organizationsare concerned that adding the crime of aggression will undermine the Court’s ability to address the atrocity crimes, although the amendments enjoy support amongst other elements of civil society.
- With Palestine’s move, the earliest the amendments can become actionable is in June 2017, one year after the 30th ratification, although states parties have not yet decided upon the modality or venue for rendering the necessary “decision” to bring them into force. The only guidance offered by the amendment text is that:
The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute.
- Nor have states parties reached consensus on the circumstances under which the Court will be able to exercise jurisdiction once this decision has been formally made because states parties are not in agreement as to how to interpret Article 121(5), which governs the aggression amendments.
Read the full post at Just Security.
- Publication Type:Other Writing
- Publication Date:07/19/2016