The growing importance of the ICC in Europe
The International Criminal Court (ICC) is experiencing difficult times. After criticising the ICC for addressing international crimes only in Africa, three African states recently indicated that they will withdraw from the Court (Burundi, Gambia, and South Africa). However, this criticism is no longer valid. The ICC is stepping up activities outside Africa, including in Europe.
“In conducting investigations and preliminary examinations, the ICC is becoming a much-needed partner in fighting impunity in Europe”, said Gunnar M. Ekelove-Slydal, deputy secretary general of the Norwegian Helsinki Committee (NHC). “In many former Soviet countries, impunity remains the rule rather than the exception and leads to further conflict and crimes. ICC investigation and accountability for those bearing the greatest responsibility for the crimes may bring some hope for victims and strengthen rule of law.”
ICC investigation is currently ongoing in Georgia. In addition, the ICC Office of the Prosecutor is conducting preliminary examination activities related to three situations:
1. Ukraine since 21 November 2013 (including Maidan, Crimea, and Eastern Ukraine);
2. Alleged UK war crimes conducted in Iraq from 2003 to 2008;
3. The so-called “flotilla incident”, which began on 31 May 2010 and encompasses alleged crimes committed by the Israeli forces when they intercepted the Gaza Freedom Flotilla. Three of the intercepted ships were registered in ICC member states (Comoros, Greece and Cambodia).
“Departing from the prevailing culture of impunity and politicised justice in large parts of the Post-Soviet area, the ICC Prosecutor will investigate crimes without regard to nationality or political affiliation of the suspects”, said Aage Borchgrevink, NHC senior advisor. “In our view, the ICC Prosecutor has already contributed to important legal clarifications. On the situation in Crimea, for instance, the Prosecutor concluded in her 2016-report that it amounts to an international armed conflict between Ukraine and the Russian Federation."
ICC efforts to ensure justice in some of the African situations were so far unsuccessful partly due to lack of support from African member states. For instance, the government of South Africa failed to arrest and surrender to the ICC the President of Sudan, Omar al-Bashir, who visited South Africa while indicted and wanted by the Court. Due to the failure of Kenya to co-operate with the ICC, charges were not confirmed or were withdrawn concerning six suspects.
“A learning lesson from the problems of ICC in Africa is that European states needs to step up their support for the Court. They should provide any relevant information they have to the ICC, help in protecting witnesses, arrest and surrender indicted suspects, and ensure that the Court has sufficient resources to conduct effective investigations,” underlined Borchgrevink.
In defending Gambia’s decision to leave the ICC, Gambia’s information minister, Sheriff Bojan, said that the ICC had been used "for the persecution of Africans and especially their leaders" while ignoring crimes committed by the West. He singled out the case of Tony Blair, former British prime minister, whom the ICC, according to him, decided not to indict over the Iraq war.
“The accusation by some African officials that the ICC is not addressing situations involving Western countries is not true”, said Ekelove-Slydal. “The ongoing preliminary examination of whether UK troops committed Rome Statute crimes during military operations in Iraq and/or in detention centres is a counter-proof of these accusations. A possible outcome of the examination is that UK authorities step up their own efforts to prosecute to avoid ICC prosecution. That is indeed an example of the ICC system of justice working.”
The 31 May 2010 flotilla incident is complex in terms of ICC jurisdiction. The Court can only investigate Rome Statute crimes committed on board the three vessels registered in Comoros, Greece and Cambodia; these states being members of the ICC. Any crimes taking place on the territory of Israel or on board any other of the six vessels intercepted by Israeli forces are not within ICC jurisdiction because neither Israel nor the states of registration of these vessels have ratified the Rome Statute.
“The flotilla incident underlines the importance of universal ratification of the Rome Statute. Same principles should apply in similar situations,” said Ekelove-Slydal. “States that are members of the ICC should step up their efforts to persuade other states to become part of the ICC system of justice. Democratic states such as Israel, the US and India becoming members of the ICC would send a strong signal of support for an embattled institution. The credibility of states’ stance on international crimes is linked to their membership and support of the ICC.”
“The ICC may not be a perfect institution yet, but to withdraw from it is the wrong thing to do”, concluded Ekelove-Slydal. “The world needs a strong and well-functioning ICC. In order to achieve that, states and other international actors should increase their support for the Court. It needs more members; not that existing members withdraw.”
Background on ICC investigation in Georgia
Georgia ratified the Rome Statute on 5 September 2003. The ICC therefore has jurisdiction over Rome Statute crimes committed on its territory from 1 December 2003 onwards. On 27 January 2016, Pre-Trial Chamber I granted the Prosecutor's request to open an investigation in the situation in Georgia, in relation to crimes against humanity and war crimes in the context of an international armed conflict between 1 July and 10 October 2008.
In its preliminary examination, the Office of the Prosecutor “gathered information on alleged crimes attributed to the three parties involved in the armed conflict – the Georgian armed forces, the South Ossetian forces, and the Russian armed forces."
According to the complementarity principle in the Rome Statute, the ICC cannot proceed if national authorities are already undertaking (or have undertaken) genuine domestic proceedings into the same cases. The Prosecutor of the ICC, Fatou Bensouda concluded however that in March 2015, relevant national proceedings in Georgia were indefinitely suspended. The Office continues to monitor relevant proceedings in Russia, which, according to the Office's information, are still on-going.
In granting the Prosecutor's request to open an investigation, the Chamber noted that the representations by or on behalf of 6,335 victims on this matter, which it received on 4 December 2015, "overwhelmingly speak in favour of the opening of an investigation".
In a statement of 16 February 2016, the Prosecutor underlined that her “investigators will do their work independently and impartially. They will examine relevant places and sites, collect evidence and question persons as witnesses, gather materials and screen documents. Therefore, if you read accounts purporting to detail in any way our ICC investigative activities, you can be assured they are fiction.”
She also underlined, “depending on the evidence that emerges, as Prosecutor, I may bring forward charges in relation to any crimes linked to the armed conflict in and around South Ossetia, irrespective of the nationality or affiliation of the alleged perpetrators.”
She also informed that the Office of the Prosecutor as well as other parts of the ICC were building up their capacity within Georgia to fulfil their mission.
ICC webpage: https://www.icc-cpi.int
Situations under investigation: https://www.icc-cpi.int/pages/situations.aspx
Preliminary examinations: https://www.icc-cpi.int/pages/preliminary-examinations.aspx
2016 Report by the Office of the Prosecutor on preliminary examination activities: https://www.icc-cpi.int/iccdocs/otp/161114-otp-rep-PE_ENG.pdf
Members of the ICC (States Parties to the Rome Statute of the ICC): https://asp.icc-cpi.int/en_menus/asp/states%20parties/Pages/the%20states%20parties%20to%20the%20rome%20statute.aspx
Rome Statute and other agreements related to the ICC: https://asp.icc-cpi.int/en_menus/asp/RomeStatute/Pages/default.aspx
The International NGO Coalition for the ICC: http://www.coalitionfortheicc.org
1. The ICC Office of the Prosecutor, Report on Preliminary Examination activities 2016, 14 November 2016. Available at: https://www.icc-cpi.int/iccdocs/otp/161114-otp-rep-PE_ENG.pdf
2. Ibid., page 35.
4. The ICC Office of the Prosecutor, Op. cit., pages 18-24.
5. Op. cit., pages 69-73.