The Crime of Aggression: 1 Year Later

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Photo credit: BBC: https://www.bbc.com/news/world-africa-29548753

This year’s Assembly of States Parties (ASP) marks the first time the Court and States Parties will discuss the crime of aggression since its activation last year, and it will be interesting to hear what States Parties have to say about it. One issue that may be addressed includes the relationship between the Court and the Security Council given that the Security Council must first determine that an act of aggression has occurred before the Court can prosecute the crime of aggression (there is, however, an exception to this if 6 months have passed since the Security Council was made aware that an alleged act of aggression has occurred and has not made a determination). The implementation of the Kampala Amendments is another potential issue because there has been debate surrounding whether the amendments should be universally implemented for all States Parties to the Rome Statute or only for those that ratify the amendment. A third potential issue of discussion is how the Court will fund the addition of this crime to its jurisdiction given the already constrained budget.

The crime of aggression is the fourth crime enumerated under the Rome Statute of the International Criminal Court. Twenty years ago, States could not agree upon the definition of the crime of aggression when the text of the Rome Statute was negotiated, thereby excluding crimes of aggression from the Court’s jurisdiction.

The definition was finally agreed upon in 2010 through the Kampala Amendments, but negotiating States decided that the Court would still not have jurisdiction over the crime of aggression until one year after 30 member states had ratified the Amendments and it was promulgated by the Assembly of States Parties (ASP).

As Palestine was the 30th State to ratify the Amendments in June 2016, the ASP agreed to activate the Court’s jurisdiction over the crime of aggression during their meetings in December of 2017. The Court’s jurisdiction officially became active on July 17, 2018.

The key issue and reason for the delay in agreeing to the text of the crime was the lack of agreement on whether the Court could exercise jurisdiction for the crime of aggression over the nationals of States Parties to the Rome Statute who had not ratified the Amendments. The wide view on this issue is that the Court has jurisdiction when the crime occurs on the territory of a State which has ratified the Amendment. Still, there are those, including Canada, that believe that the Court would not have jurisdiction over state referrals or proprio motu investigations when the alleged crime is committed by nationals of non-ratifying States or on their territory.

The crime of aggression essentially allows for individual criminal responsibility for violations of Article 2(4) of the Charter of the United Nations. Article 2(4) prohibits “the threat or use of force against the territorial integrity or political independence of any state”. However, not all violations of the prohibition on the use of force will constitute a crime of aggression: only the most serious and dangerous forms.

The Rome Statute is the first modern criminal tribunal to include the crime of aggression, but the International Military Tribunals (IMT) in Nuremberg and Tokyo included prosecutions and convictions for crimes against peace, which criminalized those involved in waging wars of aggression or wars in violation of international treaties. The language of the crime of aggression was borne out of and based on the Charter of the IMT.

The crime of aggression has not been prosecuted yet and there is no precedent for the Court to follow. It will be interesting to see how the Court interprets the crime once the first charges are made, and if it takes any guidance from the IMTs or develops its own interpretation.

Stay tuned for updates!

This blogpost and my attendance to the 17th Assembly of States Parties are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.

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ICC trial against Dominic Ongwen commences – some thoughts on narratives

The trial against Dominic Ongwen, a former commander of the Sinia brigade in the Lord’s Resistance Army (LRA), started at the International Criminal Court (ICC) this week. On 6 and 7 December, Trial Chamber IX heard opening statements from the Prosecution and two teams of Legal Representatives of Victims. The Defence had requested to defer its opening statements to the beginning of the presentation of its evidence. The trial is an important one for many reasons, not least because of the difficult issue of Ongwen being a ‘victim-turned-perpetrator’ (see this post by IntLawGrrl Diane Amann). Rather than providing a detailed overview of the submissions, I want to focus on a specific issue that struck me listening to the Prosecution’s opening statements: (gendered) narratives and discourse.

As Michelle Jarvis writes in the introduction to the book Prosecuting Conflict-Related Sexual Violence at the ICTY, and as IntLawGrrl Daniela Kravetz wrote, there has been a tendency in international criminal law to focus -almost exclusively- on the sexual component of SGBV crimes when committed against female victims. This renders the violence aspect of such crimes almost invisible. On the contrary, where it concerns sexual violence against male victims, the focus has predominantly been on the violence component, as opposed to the sexual component, with such harm often characterised only as torture, or cruel treatment. These gendered dynamics have been pervasive; hence the significance of the ICC’s conviction in the Bemba case classifying rape of male victims as rape.

The Ongwen case marks another breaking point – the Prosecution has classified acts of sexual violence against women and girls not just as sexual violence (rape and sexual slavery), but as torture and outrages upon personal dignity. It has also included charges of forced pregnancy and forced marriage, two predominantly gendered (rather than sexual) crimes (see the Prosecution’s pre-trial brief for its pleadings in this respect). The Prosecution described the LRA’s systematic, institutionalised practice to abduct young women with the express aim of forcing them into an exclusive forced conjugal relationship (“forced marriage”) with LRA commanders. They were raped, forced to carry out domestic duties such as cooking or cleaning, were beaten for refusing to do so, and some bore children as a result of their repeated rapes. This policy was “vigorously enforced” within the LRA and constituted one of its “defining features”. Ongwen himself had many forced wives, some of whom were as young as 10 years old.

The Prosecution summarised in detail the testimony already given by seven of Ongwen’s forced wives to the Pre-Trial Chamber, and referred to broader contextual evidence from other witnesses who have yet to testify. Importantly, the Prosecution underscored that in using the terms (forced) “marriage” and (forced) “wife”, it did not seek to legitimise what occurred. The Prosecution stressed that, while a victim’s lack of consent “may have been obvious at first”, when they were subsequently “bludgeoned into silent submission” this did not mean the acts became consensual.

While it was thus clear the Prosecution was very aware of nuances in language, there was nonetheless a notable change in terminology in its submissions. Continue reading

A day to remember: Ongwen’s trial starts on 6 December

Tomorrow, 6 December, the trial against Dominic Ongwen will start before Trial Chamber IX of the International Criminal Court (ICC). Ongwen’s trial follows the ICC’s first conviction for rape this year, and presents a firm break with past setbacks in terms of accountability for sexual and gender-based violence (SGBV) at the Court. It will be an important and interesting trial for many reasons, too numerous to address all of them here. Let me focus on a couple relating to the SGBV charges. They are addressed in detail in the Prosecution’s pre-trial brief (I highly recommend reading it in full!) and will no doubt feature prominently during the trial. References below are to paragraphs in the pre-trial brief.

Broadest range of SGBV charges

Dominic Ongwen is an alleged senior commander in the Lord’s Resistance Army (LRA), who is charged with responsibility for war crimes and crimes against humanity committed by the LRA in various locations in Northern Uganda from at least 1 July 2002 to 31 December 2005. As I wrote earlier, he saw 70 charges confirmed against him, including for various modes of liability. It is the first time an accused faces such a high number of charges at the ICC. Many of these charges were added after the Office of the Prosecutor conducted additional investigations following Ongwen’s surrender to the ICC in January 2015. His 2005 arrest warrant contained only seven charges, none of which were for SGBV.

With now 19 of the 70 charges against him relating to SGBV, it is also the first time an accused faces such a broad range of SGBV charges at the ICC: they include several counts of rape, sexual slavery, enslavement, forced marriage, torture, outrages upon personal dignity, and forced pregnancy. Eleven of these 19 SGBV charges relate to crimes Ongwen personally committed as a direct perpetrator (again, a first at the ICC – all other individuals charged with SGBV were/are either charged as indirect (co)perpetrators or under the theory of command responsibility). The other SGBV charges relate to the LRA’s conduct more generally for which Ongwen is held responsible (in the alternative) as indirect co-perpetrator, for ordering, or under the theory of command responsibility.

Forced marriage

Ongwen is the first person at the ICC to face charges of forced marriage. While not a specific crime under the Rome Statute, forced marriage is charged as the crime against humanity of ‘other inhumane acts’. The Prosecution’s pre-trial brief describes an elaborate structure through which young girls abducted by the LRA were distributed among commanders to serve as ting-tings (if they were very young) and subsequently as forced wives (although many witnesses also described that girls could become wives at any age). Soldiers were given ‘wives’ by Ongwen as rewards for ‘work[ing] well in attacks and battle’ (131). Continue reading

Another first at the ICC: convictions for offences against the administration of justice

This year has been a year of firsts for the International Criminal Court (ICC). The ICC delivered its first conviction for sexual violence (including based on rape of men) and the first for command responsibility in the case against Jean-Pierre Bemba Gombo (Bemba) in March. That same month, it also confirmed the highest number of charges against an accused person to date, including the broadest range of sexual and gender-based crimes, in the case against Dominic Ongwen. He is the first person ever in international criminal law to stand trial for charges of forced pregnancy, and the first before the ICC to face charges of forced marriage. His trial is scheduled to commence in December 2016. In September, the Court pronounced its first conviction for the war crime of intentionally directing attacks against religious and historic buildings in the Al Mahdi case, after his admission of guilt earlier this year (yet another first!). Just last week, the ICC held its first reparations hearings in the case against Thomas Lubanga Dyilo. And yesterday, 19 October 2016, saw the ICC’s first conviction for offences against the administration of justice in the case against Bemba et al.

Bemba, a former Congolese Vice-President, stood trial together with Aimé Kilolo Musamba, his former Defence counsel, Jean-Jacques Mangenda Kabongo, a former member of his Defence team, Fidèle Babala Wandu, a member of the DRC Parliament, and Narcisse Arido, a former potential witness for the Defence. Together they were accused of intentionally corruptly influencing 14 Defence witnesses and presenting evidence they knew to be false to the Court in the ‘main case’ against Bemba, which involved his responsibility for crimes committed by forces under his command in the Central African Republic in 2002-2003, and for which he was convicted in March.

Offences against the administration of justice under Article 70, although not one of the core crimes of the Rome Statute, appear to have become an issue in almost all cases before the ICC, and cannot be left unaddressed. While ideally the ICC should not be spending its already stretched resources on non-core crime issues, these cases are important because they send a message that the ICC will not allow interference with or obstruction of its procedures. Witness intimidation has very serious consequences even beyond the immediate case it affects. The security of witnesses and the ability of the ICC to ensure their safety is critical for witnesses to continue to come forward and testify. Leaving such instances unaddressed can not only jeopardise the ICC’s investigations and prosecutions into core crimes, but leave victims of these crimes exposed to increased security risks and intimidation. As Presiding Judge Schmitt said prior to issuing the Chamber’s verdict: “Such offences have significance because criminal interference with witnesses may impede the discovery of the truth in cases involving genocide, crimes against humanity and war crimes. They may impede justice to victims of the most atrocious crimes and ultimately may impede the Court’s ability to fulfil its mandate.”

In its judgment, Trial Chamber VII described the means of witness interference used by the defendants, which included the abuse of the Registry’s privileged phone lines in the ICC detention centre, the provision of secret phones to witnesses to remain in contact in violation of no-contact-orders, illicit transfer of money or provision of material benefits to witnesses, the promise of money and relocation to Europe in exchange for witnesses’ testimony, and the coaching, scripting, dictating and correction of witness testimony. The Chamber found that Bemba, Kilolo and Mangenda, as co-perpetrators, were part of this common plan to corruptly influence 14 Defence witnesses in the main case against Bemba, and presenting their false evidence to the Court. They also tried to interfere with the Prosecution’s investigations into these Article 70 offences, and systematically tried to circumvent measures put in place by the Chamber to guarantee the integrity of proceedings. Babala and Arido, although not part of the common plan, made efforts to contribute towards this goal. The Chamber thus found Bemba, Kilolo and Mangenda guilty as co-perpetrators of corruptly influencing Defence witnesses and inducing or soliciting their false testimony under Articles 70(1)(a), (b) and (c). Babala was convicted of having aided in the commission of the offence of corruptly influencing two Defence witnesses under Article 70(1)(c); Arido was found guilty of having corruptly influenced four Defence witnesses under Article 70(1)(c).  Continue reading

Why we should be watching the ICC on 21 March

On 21 March 2016, Trial Chamber III of the International Criminal Court (ICC) will deliver the trial judgment in the case against Jean-Pierre Bemba Gombo (Bemba). It will be an important day in the life of this now 14-year-old institution. If Bemba is convicted as charged, he will not only be the first military commander to be convicted for crimes committed by troops under his command, but it will be the first conviction at the ICC for sexual violence. Both issues have been the subject of fierce litigation.

Command responsibility

Bemba stood trial as President and Commander-in-Chief of the Mouvement de libération du Congo (MLC) for five counts of war crimes and crimes against humanity committed by MLC soldiers in the Central African Republic (CAR) in 2002-2003. The MLC had entered the CAR to assist then CAR President Ange-Felix Patassé to suppress an attempted military coup. There, the MLC soldiers are alleged to have engaged in a campaign of pillage, murder, and rape against the civilian population. While he did not commit these crimes himself, Bemba stood trial because “he knew or should have known” that his troops were committing these crimes, and “did not take all necessary and reasonable measures within his power to prevent or repress their commission”. He is the first person to have been charged at the ICC with command responsibility under article 28 of the Rome Statute.

This mode of liability, however, was disputed. During the confirmation of charges hearing in 2009, the Prosecution originally submitted that Bemba was responsible as a co-perpetrator under article 25(3)(a). When the Pre-Trial Chamber, adjourning the confirmation hearing, indicated that the evidence appeared to suggest a different mode of liability, the Prosecution amended the charges, bringing both article 25(3)(a) and article 28 in the alternative. Amnesty International was subsequently accepted as amicus curiae on the issue of superior responsibility. The Pre-Trial Chamber eventually confirmed charges against Bemba under article 28, finding substantial grounds to believe that he “knew that MLC troops were committing or were about to commit crimes”.

In September 2012, the mode of liability was again the subject of discussion, this time following a Trial Chamber decision to use the controversial Regulation 55. Whereas the Pre-Trial Chamber had only confirmed charges on the basis that Bemba “knew” crimes were being committed, the Trial Chamber notified the parties and participants that it may consider the alternate form of knowledge, namely that “owing to the circumstances at the time, … [he] should have known that the forces … were committing or about to commit such crimes”. The Defence objected and sought leave to appeal, which the Trial Chamber rejected. After further back-and-forth between the Defence and the Chamber concerning the need for additional investigations, the Trial Chamber reiterated in a decision in 2013 that it had not yet made a “formal decision” on the recharacterisation. It reserved judgment on the matter for its article 74 decision. The question is thus likely to be addressed extensively in the upcoming trial judgment, and will hopefully provide important clarification on the responsibility of military commanders for the actions of their troops and for failures to prevent, repress or punish the commission of crimes.

Continue reading

The Gender Justice Shadow of Complementarity: Lessons from the International Criminal Court’s preliminary examinations in Guinea and Colombia

In early July 2013, Human Rights Watch reported that one of the alleged perpetrators of the 2009 Guinea stadium massacre, Lieutenant-Colonel Claude Pivi, has been charged with murder, rape and destruction of property. This was an important first step towards holding one of primary suspects of this atrocity to account. It was also a significant moment for the International Criminal Court (ICC), which in 2009 had commenced a preliminary examination –under the Rome Statute’s complementarity provisions – into this massacre, and the Guinean authorities efforts to bring to justice the perpetrators. However, as we point out in a forthcoming article in the International Journal of Transitional Justice [forthcoming: Volume 7 (3)] the Guinean case also highlights the existence of a ‘gender justice shadow’ in relation to the ICC’s complementarity processes, especially in relation to the investigation and prosecution of crimes of sexual violence against women.

Our article considers the ICC’s Office of the Prosecutor (OTP) preliminary examinations of both the Guinean massacre and the Colombian conflict and argues that, on an analysis of  publically available information, the OTP has applied a low threshold when assessing crimes of sexual violence against women against the three core criteria – state action, willingness and ability – of the Rome Statute’s complementarity test, effectively leaving intact impunity for these crimes.

Our argument here mirrors the work of Kevin Heller, who has shown that while the Rome Statute establishes the highest standards of due process for cases before the ICC, its complementarity provisions do not extend due process rights in national jurisdictions. Similarly, we suggest that there is a ‘gender justice shadow’ side to complementarity: the Rome Statute provides the most developed articulation of gender justice of any instrument of international criminal law, yet complementarity does little to extend these measures to the domestic level.

Members of the Women’s Caucus for Gender Justice, who were so influential in shaping the ground-breaking gender justice aspects of the Rome Statue, were the first to highlight this gender justice shadow. During the negotiations process in the late 1990s, the Caucus cautioned that unless the Rome Statute recognised in its complementarity tests of action, willingness and inability the gender biased features of national penal codes, especially weak substantive and procedural laws to address sexual violence against women, it ‘could result in impunity for crimes of sexual and gender violence’ (Women’s Caucus for Gender Justice, ‘Gender Justice and the ICC’, paper presented at the Rome Conference, Italy, 15 June – 17 July 1998, 24; document with the authors). This argument has since reiterated by other commentators and academics (see Women’s Initiative for Gender Justice, Susana SáCouto and Katherine Clearly, and Amrita Kapur).

Our analysis shows that the OTP’s preliminary conclusions about complementarity in Guinea and Colombia have failed to take adequate account of crimes of sexual violence against women. There are questions as to whether the domestic proceedings have addressed either the same persons or the same crimes, particularly where sexual violence is involved. In both Guinea and Colombia, some of the sexual violence crimes documented by the OTP are not included in the domestic penal codes, and a lack of transparency makes it difficult to assess which individuals the OTP is investigating, and whether they have been charged for sexual violence at the national level.

Similarly, it appears that in the OTP’s application of the willingness and ability criteria in these two sites, gender biases in domestic law have been overlooked. Based on the available documentation, it seems there has been minimal, if any, attention given to impartiality in proceedings for victims of sexual and gender-based crimes or the limitations in local laws to allow for investigation and prosecution of a full range of sexual and gender-based crimes.

These problems of apparent non-recognition of gender justice issues in Guinea and Colombia are a legacy of the failure of States to include the Women’s Caucus for Gender Justice’s suggestions to expressly integrate gender justice concerns in the complementarity provisions. The prediction made in the 1990s by the Women’s Caucus appears to have become a reality at least in Guinea and Colombia: ongoing impunity for many perpetrators of sexual violence, and little justice for the victims of these crimes. This is, we argue, the gender justice shadow of complementarity.

The positive side of the story is that the ICC’s second Prosecutor, Fatou Bensouda, has professed a strong commitment to gender justice; building around her a team of advisors including Brigid Inder, Patricia Viseur Sellers and Diane Amann, who have high-level gender justice expertise. The creation of an overarching OTP gender policy, slated for release in 2013, will provide the chance for the Office to draw on lessons from its first decade in operation and establish new procedures which embed core gender justice concerns in ongoing and future complementarity assessments. At minimum is hoped that the OTP will provide clear criteria for evaluating action, willingness and ability at the preliminary examination stage in ways that capture existing gender biases in the law. In implementing this policy it will be important that the OTP, and the other arms of the Court, are as transparent as they can possibly be (within a highly sensitive legal context) about their recognition of gender biases when undertaking preliminary examinations and throughout the complementarity process. It is only when such information is available that a complete assessment can be made of the impact of the gender justice shadow of complementarity.

— Co-authored with Louise Chappell and Rosemary Grey.

The Domestication of International Criminal Law: A Feminist Perspective

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Many feminists have questioned the extent to which the law can ever effectively deter violence against women given the ways in which the law and criminal justice systems often act to reinforce deeply sexist assumptions about women, their sexual and social identities and their relation to the social (male) world. In recent work, published with the University of Minnesota’s Legal Research Paper Series on SSRN entitled Gendered Harms and their Interface with International Criminal Law: Norms, Challenges and Domestication I explore the extent and consequences of state ratification of the International Criminal Court statute for the legal regulation of sex-based harms at the domestic level.  The article provides a comprehensive review of all subsequent domestic legislation addressing violence against women in all ratifying member states. Statistically we learn some interesting things from the survey.  At time of writing, of the 122 states studied for my analysis only 27 have not introduced any subsequent domestic legislation that address violence against women.  The vast majority of states reviewed have produced multiple pieces of national legislation addressing a range of harms including violence against women, domestic violence, marital rape, sexual harassment, trafficking, stalking, female genital mutilation, early marriage, and trafficking.  Many have produced multiple and sequential changes to their laws addressing violence against women, in what appears to be a progressively expanding practice of regulatory enthusiasm. Only deeper country-specific and comparative analysis will yield data on the faithfulness of the translation from the international criminal law norms, or indeed progressive/expansive development beyond the state agreed content of the International Criminal Law statute.  Even with those caveats, there is no doubt that that we see an expanded acceleration of normative enlargement on the international plane, and that such pace is having trickle-down legislative effect at the national level. I urge feminist critical-reflection on how international criminal law could usefully re-direct analysis to the question of positive norm transfer between ICL and domestic norm expansion on violence against women.

While much has been made of the broader compliance consequences of the ICC, much less attention has been paid to the gendered implications of ICC ratification for states, and in particular how ratification affects domestic regulation of sex crimes and sexual harms.  Two elements are flagged by my analysis.  The first is evidence of significant modifications to domestic laws related to sexual violence, trafficking, stalking, and domestic violence in states that have ratified the International Criminal Court statute. In this I wonder about connecting the international incentives for states to comply with their treaty obligations as being more ‘effective’ in producing norms that directly regulate (through criminalization) the sex-based harms experienced by women than decade-long and painstakingly slow feminist advocacy through national legislatures and local political processes.  By ‘effective’ here I do not mean efficiency of the rules in application but simply to the intensity and density of the norm production process. In parallel, I speculate that the translation of abstract international legal norms may not be entirely straightforward.  By this I mean, that while some states may practice a form of constitutional fidelity to the language of the ICC Statute others may produce normative loss in translation as they journey to domestic legal form.  This process mirrors the translation effects that Sally Engle Merry has illustrated by demonstrating the challenges of domesticating human rights norms pertaining to gender equality into local vernaculars.  In short, we should not necessarily presume positive outcomes for women from norm transplant.

I also address the, as yet, untapped potential of the ICC complementarity regime to advance or substantially limit accountability for sex-based harms.  Inherent in the legal mandate of complementarity is the capacity for “proactive complementarity” whereby the Court’s assistance and encouragement to states undertaking domestic prosecutions might have an overall and positive influence on the successful prosecution of sex-crimes at the domestic level. I speculate that the density of domestic norm production post ICC ratifications points to the work being advanced ‘in the shadows’ by the process of treaty compliance.  My obvious caveats include the acknowledgement that domestic legal changes may well have been long in the making and that it may be merely coincidental in some cases that ratification and domestic reform can be linked.  Moreover, I note that a number of my country cases show a time lag. There is clearly a gap between ratification and domestic legal reform in a number of states, underscoring the point about other internal processes that produce norm proliferation.  But, at the very least I want to suggest that ratification of the ICC creates an opportunity (and arguably a requirement of conformity in terms of treaty compliance) to remedy contradictory domestic norms.  This compliance requirement moment is an important one for legal change, particularly as regards violence against women in that it may create an external capacity to press for reform, when there is domestic legal and political hostility to self-prompted legislative action. A separate matter that I start to explore in the article is to what degree the norm production produces wholly positive outcomes for women, and substantially addresses the conditions conducive to the production of systematic violence in the first place.