Tag Archives: complementarity

Kenya Cases Remain Admissible

The International Criminal Court (ICC) has overruled the objections of Kenya and found that the post-election violence cases remain admissible (within the jurisdiction of the court).  A detailed discussion of the ruling, and the case, is available here.  Kenya has announced that it plans to appeal.

The ruling is a significant test of the issue of complementarity. A founding principle of the court, complementarity means that the court can only pursue cases that are not capable of, or were not adequately pursued in national courts.  Kenya had initially cooperated with the investigation, but then argued the cases were now capable of being resolved in national courts.

The court found that the Government of Kenya had not shown that there were open cases involving the six officials detained by the court.  Rather the government argued that there had been reforms in its judicial system and the cases could proceed.  The court determined that in the absence of actual open prosecutions of the six accused:

… the Chamber considers that there remains a situation of inactivity. Consequently, the
Chamber cannot but determine that the case is admissible following a plain reading
of the first half of article 17(l)(a) of the Statute. It follows that there is no need to
delve into an examination of unwillingness or inability of the State, in accordance
with article 17(2) and (3) of the Statute.

The argument over inadmissibility will likely remain ongoing as the case proceeds.

ICC Announces New Preliminary Investigations

The Office of The Prosecutor (OTP) of the International Criminal Court (ICC) has announced two new preliminary investigations, in Honduras and Nigeria.  The OTP has previously said there are preliminary investigations in Afghanistan, Colombia, Ivory Coast, Guinea, Georgia, and, according to the Hague Justice Portal, Palestine. The court has jurisdiction over war crimes, crimes against humanity and acts of genocide committed in the territory of the 114 nations who have ratified the treaty, or by their citizens, which are not punished in national jurisdictions since July of 2002.

There are currently four situations where the court has issued indictments, Democratic Republic of Congo, Uganda, Central African Republic, and Darfur, Sudan.  The OTP sought and received approval from the court to open a formal investigation into the post-election violence in Kenya, and has said there will be indictments forthcoming soon.

The OTP has yet to issue an indictment, or even seek approval from the court to open a formal situation outside of Africa, which has led to significant criticism from African countries.

The idea of a situation in Afghanistan was previously explored here. The big question raised by the idea of an investigation in Afghanistan is who might be indicted?  The ISAF forces would likely be precluded by the principle of Complentarity.  The Taliban has not been in power during the jurisdictional period of the court.  Establishing command responsibility for atrocities by a member of the Taliban might well create significant difficulties for the OTP.

U.S. State Department Official Describes “Positive Engagement” with the ICC

A U.S. State Department official has described the current administration‘s position on the International Criminal Court (ICC) as “positive engagement.”  The Bush administration had been openly hostile and sought agreements from other countries that no U.S. nationals would be transferred to the court and further threatened that it would use military force if any U.S. nationals were brought to the court.  Human Rights Watch described the law containing this threat,  the American Servicemembers Protection Act (ASPA) of 2002 as “The Hague Invasion Act” for its provision allowing such a use of force.

The Clinton administration had participated in the drafting of the Rome Treaty, but did not support the final version.  President Clinton signed the treaty on December 31, 2000, the final day to allow for continued participation in negotiating changes to the treaty.  President Clinton did not send the treaty to the Senate for ratification, and in a signing statement recommended that his predecessor not do so either,  because the ICC prosecutor was not “accountable” to the Security Council.  It appears that the main U.S. objection was that a member state, in particular the United States, could not veto or otherwise stop a prosecution.

In 2002, when the court’s jurisdiction began, the Bush administration sent a notice to the court withdrawing from the treaty.  A chronology of the U.S. attitude towards the court is offered by the American NGO Coalition for the International Criminal Court (AMICC). The Bush administration sought bi-lateral agreements with other nations promising not to transfer U.S. citizens to the ICC if indicted, apparently tying the signing of such an agreement to aid.  The Coalition for the International Criminal Court (ICCNOW) has offered a list of some of those agreements here.

There have been statements from U.N. Ambassador Susan Rice, signaling a change in policy towards the ICC, and Secretary of State Hilary Clinton has described it as “a great regret” that the U.S. is not a state’s party. It is clear that the U.S. is not as openly hostile to the ICC as the Bush administration. Though it seems unlikely the administration will expend any political effort or capital on seeking ratification of the treaty when it is clear that would not be 66 votes to ratify.  It is not clear how many Senators would support ratification, there are no public statements of support by any U.S. Senators that have been located in preparing this post.

The purpose of the ICC is to have a permanent international court to prosecute mass atrocity cases, those crimes against humanity, war crimes and acts of genocide that are not or cannot be effectively prosecuted by national authorities.  The principle of complementarity, preventing prosecution by the ICC when a national authority has jurisdiction has been sufficient for the 114 nations which have ratified the treaty.  The ICC is intended as a court of last resort, not to prosecute crimes generally.

The Rome Statute, founding document of the ICC, does not create new obligations, but rather creates an enforcement mechanism for violations of the Geneva Conventions of 1949, ratified by 194 countries, including the U.S.  The newest addition to the statute is a definition of the crime of aggression, or committing aggressive war.  The Nuremberg trials after World War II included a count of waging aggressive war and the U.N. charter includes an obligation of the member states, including the U.S. not to wage aggressive war.  The ability of an international court to enforce treaty obligations by prosecution appears to be the area of concern which prevent U.S. support for the ICC.