The Prosecutor’s Request Concerning the Rohingya Deportation to Bangladesh: Certain Procedural Questions

2018 ◽  
Vol 31 (4) ◽  
pp. 981-1002 ◽  
Author(s):  
MICHAIL VAGIAS
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Territorial Jurisdiction ◽  
The Right ◽  
First Time

AbstractOn 9 April 2018, the Prosecutor of the International Criminal Court filed a request seeking the composition of a Pre-Trial Chamber, in order to decide whether the Court has territorial jurisdiction over the Rohingya deportation from Myanmar to Bangladesh as a crime against humanity. This filing is a first for the Court on at least two fronts; it is the first time the Prosecutor has asked the Court to interpret Article 12(2)(a) and apply qualified territoriality; it is also the first time the Prosecutor has asked for a ruling on jurisdiction under Article 19(3).This study explores certain procedural questions emerging from this request, such as the Court’s authority to decide while its jurisdiction is ‘dormant’; the function of Article 19(3) within the Rome Statute’s overall system concerning jurisdictional determinations; issuing a decision on jurisdiction, while avoiding prejudice to subsequent proceedings and without rendering meaningless the right to challenge jurisdiction under Article 19(2) of the Statute. The article accepts that the request is a step in the right direction, as it signals the Prosecutor’s determination to investigate the Rohingya crisis. However, the manner and timing of its presentation give rise to plausible claims of incompatibility with the Court’s procedural framework. Arguably, the Court may well instruct the Prosecutor to assume the risk of wasting precious resources and proceed with further investigations, pending the final determination of the jurisdictional question at a later stage.

State of Exception

2020 ◽  
Author(s):  
Ardi Imseis
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
State Of Exception ◽  
Critical Examination ◽  
Territorial Jurisdiction ◽  
Preliminary Examination ◽  
Occupied Palestinian Territory ◽  
Palestinian Territory

Abstract In December 2019, the Prosecutor of the International Criminal Court concluded her preliminary examination into the situation in Palestine, determining there is a reasonable basis to initiate an investigation into the situation. Instead of doing so, she first decided to seek a ruling from the Pre-Trial Chamber on the scope of the Court’s territorial jurisdiction, specifically aimed at confirming her view that the ‘territory’ over which the Court may exercise its jurisdiction comprises the Occupied Palestinian Territory (OPT). This article focuses on the amici curiae observations and other communications made by eight states parties in the proceedings — Australia, Austria, Brazil, Canada, Czech Republic, Germany, Hungary and Uganda. A critical examination of these observations and communications reveals that they did not answer the question posed by the OTP, but rather advanced a number of strained arguments aimed, inter alia, at impugning the very notion that the Court has any jurisdiction at all on the basis that Palestine is not a state. When juxtaposed against the ostensible commitment of these states parties to the object and purpose of the Statute, their observations and other communications reveal a conspicuous hypocrisy. If accepted by the Court, these observations and communications would operate to not only affirm the continued contingency of the state of Palestine on the international plane, but, even worse, to shield persons known to have committed or be committing crimes of the gravest concern to the international community with impunity.

The Denial of the Right of Return as a Rome Statute Crime

2020 ◽  
Author(s):  
Micheal G Kearney
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
Final Section ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Central Importance ◽  
Right Of Return ◽  
The Right

Abstract In 2018, Pre-Trial Chamber I of the International Criminal Court (ICC) held that conduct preventing the return of members of the Rohingya people to Myanmar could fall within Article 7(1)(k) of the Statute, on the grounds that denial of the right of return constitutes a crime against humanity. No international tribunal has prosecuted this conduct as a discrete violation, but given the significance of the right of return to Palestinians, it can be expected that such an offence would be of central importance should the ICC investigate the situation in Palestine. This comment will review the recognition of this crime against humanity during the process prompted by the Prosecutor’s 2018 Request for a ruling as to the Court’s jurisdiction over trans-boundary crimes in Bangladesh/Myanmar. It will consider the basis for the right of return in general international law, with a specific focus on the Palestinian right of return. The final section will review the elements of the denial of right of return as a crime against humanity, as proposed by the Office of the Prosecutor in its 2019 Request for Authorization of an investigation in Bangladesh/Myanmar.

Better Late than Never: Reparations for Sexual Violence in the Ntaganda case before the International Criminal Court

2021 ◽  
Vol 2 (1) ◽  
pp. 27-47
Author(s):  
Sunneva Gilmore
Keyword(s):  
Sexual Violence ◽  
International Criminal Court ◽  
International Criminal ◽  
Child Soldiers ◽  
Trial Chamber ◽  
Criminal Court ◽  
Crimes Against Humanity ◽  
Medical Background ◽  
Modest Contribution ◽  
First Time

The Prosecutor v Bosco Ntaganda case at the International Criminal Court (ICC) represents the long awaited first reparation order for sexual violence at the court. This will hopefully see the implementation of reparations for the war crimes and crimes against humanity of rape and sexual slavery among civilians and former child soldiers, after previous cases such as against Jean-Pierre Bembe and Laurent Gbagbo were acquitted of rape. This article drawing from the author's role as a reparation expert in the case, is a reflection on the challenges of designing and providing reparations at the ICC against convicted individuals, as well as amidst insecurity and the COVID-19 infectious disease pandemic. It begins by discussing how the Ntaganda reparation order expanded reparation principles for the first time since the Lubanga case, in particular for crimes of a sexual nature. This is followed by an outline of some of the harms as a result of sexual violence from the perspective of an expert with a medical background. The analysis then turns to the appropriate reparations in this case and the details contained within the chamber's reparation order. Final conclusions consider how the procedural and substantive elements of reparations in this case will be instructive to future cases that address sexual violence. Ultimately, key insights are offered on the modest contribution an appointed reparation expert can do in assisting a trial chamber in the reparation process.

The Contestation of Value-Based Norms: Confirmation or Erosion of International Law?

2019 ◽  
pp. 311-334
Author(s):  
Tiyanjana Maluwa
Keyword(s):  
International Law ◽  
Security Council ◽  
Criminal Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
The Right ◽  
First Time ◽  
Normative Powers

The chapter discusses the concepts of shared values and value-based norms. It examines two areas of international law that provide illustrative examples of contestation of value-based norms: the fight against impunity under international criminal law and the debates about the responsibility to protect. It argues that the African Union’s (AU) difference of view with the International Criminal Court (ICC) over the indictment of Omar Al-Bashir is not a rejection of the non-impunity norm, but of the context and sequencing of its application. As regards the right of intervention codified in the Constitutive Act of the AU, Africans states responded to the failure of the Security Council to invoke its existing normative powers in the Rwanda situation by establishing a treaty-based norm of intervention, the first time that a regional international instrument had ever done so. Thus, in both cases one cannot speak of a decline of international law.

Prosecutor v. Ahmad Al Faqi Al Mahdi

2017 ◽  
Vol 111 (1) ◽  
pp. 126-132
Author(s):  
Uzma S. Bishop-Burney
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Guilty Plea ◽  
Cultural Objects ◽  
First Time

On September 27, 2016, the Trial Chamber (Chamber) of the International Criminal Court (ICC or tribunal) rendered its judgment in Prosecutor v. Ahmad Al Faqi Al Mahdi, wherein the defendant was convicted of the war crime of intentionally directing attacks on protected cultural objects. It is the ICC's first such conviction and the first time that an accused has entered a guilty plea at the tribunal pursuant to Article 65 of the Rome Statute (Statute). Al Mahdi pled guilty to co-perpetrating attacks on protected objects pursuant to Article 8(2)(e)(iv) of the Statute for his role in the attack on, and destruction of, ten mosques and mausoleums in Timbuktu. The Trial Chamber sentenced him to nine years in prison.

Case No. ICC-RoC46(3)-01/18

2019 ◽  
Vol 113 (2) ◽  
pp. 368-375 ◽  
Author(s):  
Michail Vagias
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
State Party ◽  
Legal Personality ◽  
Territorial Jurisdiction ◽  
International Legal Personality

On September 6, 2018, Pre-Trial Chamber I of the International Criminal Court (ICC or Court) ruled by a majority—Judge Perrin de Brichambaut dissenting—that it has jurisdiction to hear cases concerning crimes that occurred only in part within the territory of a state party to the Rome Statute. In so ruling, the Court granted the ICC prosecutor's request to rule on jurisdiction and confirmed its territorial jurisdiction over the alleged deportation of Rohingya people from the territory of Myanmar (a state not party to the Rome Statute) to Bangladesh (a state party). The Court also affirmed unequivocally its objective international legal personality vis-à-vis non-party states and hinted strongly that the prosecutor should consider the possible prosecution of at least two additional crimes in connection with this situation.

scholarly journals Decision on the “Prosecution's Request for a Ruling on Jurisdiction Under Article 19(3) of the Statute” (Int'l Crim. Ct.)

2019 ◽  
Vol 58 (1) ◽  
pp. 120-159 ◽  
Author(s):  
Sarah Freuden
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
State Party ◽  
Territorial Jurisdiction ◽  
Preliminary Examination

On September 6, 2018, Pre-Trial Chamber I of the International Criminal Court (Court) issued its “Decision on the ‘Prosecution's Request for a Ruling on Jurisdiction Under Article 19(3) of the Statute.’” The decision is notable both for the procedural posture—the Prosecution submitted its request prior to opening a preliminary examination—and the majority's conclusion that the Court may exercise territorial jurisdiction over alleged deportation from Myanmar, a nonstate party to the Rome Statute of the International Criminal Court (Rome Statute or Statute), to a state party, Bangladesh.

Prosecutor v. Laurent Koudou Gbagbo: Judgment on the Appeal Against the Decision of Pre-Trial Chamber I on Jurisdiction and Stay of the Proceedings (Int’l. Crim. CT.)

2014 ◽  
Vol 53 (3) ◽  
pp. 477-501
Author(s):  
Inbal Djalovski
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
Ad Hoc ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Fundamental Rights ◽  
First Time ◽  
Party State

On December 12, 2012, the Appeals Chamber of the International Criminal Court (Court) in the case of Prosecutor v. Laurent Koudou Gbagbo unanimously confirmed the Pre-Trial Chamber I decision to dismiss Mr. Gbagbo’s challenge to the jurisdiction of the Court. In the Judgment, the Appeals Chamber, for the first time, was called to interpret Article 12(3) of the Rome Statute (Statute), which allows a non-party State to accept the jurisdiction of the Court on an ad hoc basis without acceding to the Statute. The Judgment further includes two procedural issues. Firstly, the Appeals Chamber found that although the Pre-Trial Chamber erred by not rendering a separate decision on Côte d’Ivoire’s request for leave to submit its observations, this error did not materially affect the Pre-Trial Chamber’s decision. Secondly, the Appeals Chamber dismissed, in limine, Mr. Gbagbo’s request for a stay of proceedings based on allegations of violations of his fundamental rights, since it was not jurisdictional in nature and thus fell outside the scope of the appealable matter.

scholarly journals The Right to a Fair Trial and Judicial Economy at the International Criminal Court

2016 ◽  
Vol 5 (1) ◽  
pp. 86-118
Author(s):  
Patricia Hobbs
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Final Decision ◽  
Civil Unrest ◽  
Rights Discourse ◽  
The Right ◽  
Human Rights Discourse ◽  
Judicial Economy

Following the civil unrest in Kenya in 2008 and Kenya’s inability to prosecute the perpetrators of those crimes, the International Criminal Court (icc) prosecutor initiated proceedings proprio motu against Mr Uhuru Kenyatta and Mr William Ruto. Despite the impending prosecutions, Mr Kenyatta and Mr Ruto were elected as President and Deputy President of Kenya in 2013. Due to their prominent status, they both applied (separately) to be excused from continuous attendance at their trial proceedings. Mr Ruto’s argument was heard first, and Trial Chamber (A) granted the excusal request. In the course of Mr Kenyatta’s hearing by Trial Chamber (B), but before the Appeals Chamber reversed Mr Ruto’s Trial Chamber (A) decision, the issue of judicial economy was raised by the prosecution. Their contention was that Trial Chamber (B) should in fact wait for the Appeals Chamber’s final decision, but the Chamber dismissed the argument and proceeded with the decision at hand. This article contends that the Court missed a real opportunity to place judicial economy within the human rights discourse, particularly in the light of Article 21(3) of the Rome Statute of the International Criminal Court.

Palestine in the ICC

2020 ◽  
Author(s):  
Yaël Ronen
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
The Other ◽  
Self Determination ◽  
Effective Control ◽  
Progressive Development ◽  
Territorial Jurisdiction ◽  
The Right

Abstract This article examines two propositions relating to the role of the right to self-determination with regard to statehood, as put forward by the Office of the Prosecutor of the International Criminal Court (ICC) in its a request pursuant to Article 19(3) of the ICC Statute, for a ruling on the Court’s territorial jurisdiction in Palestine. One proposition is that the right to self-determination can compensate for a shortfall in effective control that might otherwise bar recognition of the territory as a state. The other proposition is that when effective control is lacking because of illegal obstruction of the realization of the right to self-determination, recognition of statehood may be an appropriate response regardless of the facts. The article argues that these propositions are neither substantiated in existing law, nor can they be said to be matters of the progressive development of the law. For this, the article analyses instances where statehood was allegedly recognized prior to the consolidation of effective control and which are cited as reflecting the propositions. It shows that these instances do not support the propositions. With respect to the second proposition, the article argues that it is inadvisable as lex ferenda, nor applicable in the Palestine case.

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