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Updates from the International and Internationalized Criminal Courts Claire Grandison American University Washington College of Law

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Updates from the International and Internationalized Criminal Courts Claire Grandison American University Washington College of Law Human Rights Brief Volume 19 | Issue 1 Article 7 2011 Updates from the International and Internationalized Criminal Courts Claire Grandison American University Washington College of Law Benjamin Watson American University Washington College of Law Brynn Weinstein American University Washington College of Law Adam Dembling American University Washington College of Law Yaritza Velez American University Washington College of Law See next page for additional authors Follow this and additional works at: http://digitalcommons.wcl.american.edu/hrbrief Part of the Criminal Law Commons, Human Rights Law Commons, and the International Law Commons Recommended Citation Grandison, Claire, Benjamin Watson, Brynn Weinstein, Adam Dembling, Yaritza Velez, and Michelle Flash. "Updates from the International and Internationalized Criminal Courts." Human Rights Brief 19, no. 1 (2011): 36-43. This Column is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Human Rights Brief by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. Authors Claire Grandison, Benjamin Watson, Brynn Weinstein, Adam Dembling, Yaritza Velez, and Michelle Flash This column is available in Human Rights Brief: http://digitalcommons.wcl.american.edu/hrbrief/vol19/iss1/7 Grandison et al.: Updates from the International and Internationalized Criminal Cou UPDATES FROM THE INTERNATIONAL AND INTERNATIONALIZED CRIMINAL TRIBUNALS INTERNATIONAL CRIMINAL COURT tigative strategy within the Office of the evidence, witnesses, and affected com- Prosecutor (OTP) threatened its indepen- munities. Implicated officials might also ICC AUTHORIZES PROSECUTOR’S dence and impartiality during the course threaten the safety of victims who wish to REQUEST TO OPEN INVESTIGATION IN of investigations in the past. In these prior participate as witnesses. situations, the OTP failed to investigate all CÔTE D’IVOIRE The investigation in Côte d’Ivoire sides of a conflict or issued inconsistent On October 3, 2011, Pre-Trial Chamber demands an independent and impartial charges for similar crimes. In other cases, III of the International Criminal Court approach to ensure not only that affected it failed to trace responsibility for crimes to (ICC) authorized Prosecutor Luis Moreno- communities experience meaningful jus- the higher levels of government. Together, Ocampo’s request to open an investiga- tice, but also that the ICC avoids costly these discrepancies foster perceptions that tion in Côte d’Ivoire. In his request, the perceptions of bias and maintains sup- the ICC is not independent from govern- Prosecutor sought authority to investigate port from the international community in ment control or that it favors one group crimes within the Court’s jurisdiction com- its efforts to confront impunity in future over another. The failure to move forward mitted during Côte d’Ivoire’s post-election situations. The OTP can foster coopera- with investigations of certain subjects cre- violence in 2010-2011 between forces tion by strictly adhering to core values ates an impression that they are inno- loyal to incumbent President Alassane of justice and fairness, which will attract cent, severely damaging the restorative Ouattara and those loyal to now-ousted allies within Côte d’Ivoire who are willing efforts of affected communities who know former President Laurent Gbagbo. Three to collaborate. The OTP might also openly these individuals to be responsible and had thousand people were killed, 72 disap- denounce non-cooperation to encourage expected the Court to expose the truth. peared, 520 were arbitrarily detained, and the international community to exert pres- 100 cases of rape were reported. The In fulfilling its investigative mandate, sure on the state to fulfill its obligation to authorization is based on a finding that the the OTP must identify patterns of crimes cooperate with the Court. In all, Prosecutor Prosecutor established a reasonable basis and trace the chain of responsibility to indi- Ocampo must seize this opportunity, as the to believe that crimes within the jurisdic- viduals most responsible for the crimes. future of the Court may depend on it. tion of the ICC had been committed by The principles of independence and impar- both pro-Ouattara and pro-Gbagbo forces. tiality require the OTP to investigate alleged ICC APPEALS CHAMBER CONFIRMS Though Côte d’Ivoire is not a State Party perpetrators on all sides, which in the situ- THE ADMISSIBILITY OF CASES IN THE to the ICC, President Ouattara confirmed ation in Côte d’Ivoire includes agents and SITUATION OF KENYA its acceptance of ICC jurisdiction, most forces loyal to President Ouattara, many recently in May 2011. Article 12(3) of of whom now occupy key government On August 30, 2011, the ICC Appeals the Rome Statute—the ICC’s founding positions. Yet the OTP is highly dependent Chamber confirmed the admissibility of treaty—allows non-States Parties to accept on government cooperation while inside a The Prosecutor v. William Samoei Ruto, ICC jurisdiction on an ad hoc basis. country to fulfill its document collection Henry Kiprono Kosgey and Joshua Arap and witness interview obligations, which Sang and The Prosecutor v. Francis Kirimi With elections for the next Chief makes it difficult to effectively investigate Muthaura, Uhuru Muigai Kenyatta and Prosecutor approaching in December, the and prosecute such upper-level individuals. Mohammed Hussein Ali. These decisions investigation presents one of Prosecutor underscore the ICC’s commitment to the Ocampo’s final opportunities to bolster Prosecutor Ocampo must therefore principle of complementarity as outlined the legitimacy of his office, strengthen its demonstrate in his final months that he can in Article 17(1)(a) of the Rome Statute, the legacy, and provide a positive starting point strike a delicate balance in Côte d’Ivoire — founding document of the Court. Under for his successor. To do so, the Prosecutor one that achieves the goals of impartiality Article 17, the Court may hear a case only must develop a coherent and well-executed and independence while maintaining the after finding that a State with domestic investigation strategy that communicates degree of state cooperation that is critical jurisdiction is unwilling or unable to inves- the ICC’s mandate to victims and affected for a complete and thorough investiga- tigate or prosecute. communities who seek justice, and sets tion. On one hand, the failure to carry out the tone for the prosecution of perpetra- an impartial investigation of those most On March 31, 2010, Pre-Trial Chamber tors throughout Côte d’Ivoire. In light of a responsible from all parties to the conflict II granted the Office of the Prosecutor’s recent report by Human Rights Watch, the risks delivering the kind of “victor’s jus- (OTP) request to open an investigation investigation in Côte d’Ivoire has implica- tice” that neglects victims and fails to deter propio motu (“by its own volition”) into tions for the credibility of the ICC and those who might view crimes as a means alleged crimes against humanity in Kenya, presents an opportunity to improve on past to victory. On the other hand, the OTP committed during the post-election vio- techniques. must remain unbiased without alienating lence that left approximately 1,100 people state officials; otherwise, those implicated dead, 35,000 injured, and up to 600,000 The report found that the absence of may frustrate the investigation process forcibly displaced in 2007-2008. On March a well-communicated and coherent inves- out of self-interest, restricting access to 8, 2011, Pre-Trial Chamber II issued sum- Published by Digital Commons @ American University Washington College36 of Law, 2011 1 84823_AU_HRB.indd 36 12/7/11 2:16 PM Human Rights Brief, Vol. 19, Iss. 1 [2011], Art. 7 monses to appear for six Kenyan nationals fair trial rights, the creation of new offices to align its judicial system to international accused of crimes against humanity under and procedures to ensure judicial indepen- standards, and will be a litmus test for Article 7(1) of the Rome Statute. dence, and the inclusion of Rome Statute future referrals, which could ease the case- crimes in national jurisdiction. The govern- load of the ICTR in compliance with the On March 31, 2011, the government of ment also laid out plans for a bottom-up goals of its Completion Strategy. Kenya, a State Party to the Rome Statute investigative process that would focus first since 2005, filed applications challenging The ICTR modeled its referral process on suspects at a lower level, and then work the admissibility of both cases. On May 30, after the International Criminal Tribunal its way up to the individuals charged before 2011, Pre-Trial Chamber II issued rejec- for the former Yugoslavia (ICTY), which the ICC. Though the Pre-Trial Chamber II tions to these applications, and on June has successfully referred thirteen cases to and the Appeals Chamber welcomed these 6, 2011, the Kenyan government filed an national jurisdictions. As set forth in UN measures, they stated that neither reforms appeal, citing Article 17(1)(a) of the Rome Resolution 1503 (2003), a culminating ele- nor plans for future investigations met Statute. In filing its appeal, the Kenyan ment of the ICTR’s Completion Strategy the requirements to prove
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