Imagine the following situation, S1. During a bitter and very one-sided armed conflict, the President of Alpha commits genocide on the territory of Beta. Alpha is not a member of the ICC; Beta is. When the President of Alpha attends a peace conference in Beta, Beta arrests him and prosecutes him for genocide. In this scenario, Beta has clearly violated international...
On 17 May 2017, Judge Marc Perrin de Brichambaut gave a talk at Peking Law School about the role of victims at the ICC. The talk, which was recorded and then transcribed, included a number of shocking comments, such as describing "the Africans" as "a group of 54 countries who provide the suspects and the accused" to the Court. Judge...
I thought I was done blogging about the Pre-Trial Chamber's authorization decision, but there is another aspect of it that keeps nagging at me: the limits PTC II would have imposed on the OTP's investigation if it had authorized it. Here are the key paragraphs (emphasis mine): 40. More specifically, the precise width and breadth of the Prosecutor's power to investigate...
I have been thinking more about how the OTP can appeal the Pre-Trial Chamber's refusal to authorize the Afghanistan investigation. I was perhaps a bit too dour in my assessment of whether the Appeals Chamber is likely to get the chance to reverse a decision that I consider fundamentally flawed. The most obvious option would be to seek leave to appeal the...
In my previous post, I defended the right of the Pre-Trial Chamber (PTC) to review the OTP's assessment of whether there were, to quote Art. 53(1)(c) of the Rome Statute, "substantial reasons to believe that an investigation would not serve the interests of justice." In this post, I want to explain why I think the PTC got that review completely,...
Dov Jacobs has a typically excellent post at Spreading the Jam on the PTC's decision to reject the Afghanistan investigation. I agree with nearly all of it, but I do take issue with this comment: First of all, and perhaps most importantly, the exercise that the Pre-Trial Chamber did is most likely ultra vires. Indeed, Article 53(1)(c) is very clear that...
I will write a longer post tonight criticising the PTC's understanding of the "interests of justice," but I thought I'd start by cutting to the legal chase: can the OTP appeal the PTC's decision to reject its request to investigate the situation in Afghanistan? As I read the Rome Statute, I don't think so. Here is the text of the relevant...
I am very happy to welcome Opinio Juris 2.0's first guest blogger: Angela Mudukuti, a Zimbabwean international lawyer who currently works for the Wayamo Foundation. Angela focuses on enhancing the domestic capacity of African prosecutors and investigators to investigate and prosecute core international crimes. She previously worked for the superb Southern Africa Litigation Centre (SALC) in South Africa, where she was involved with precedent-setting...
Well, that was predictable. The Ntaganda defence has filed two motions relating to the news that the ICC's judges have permitted Judge Ozaki to simultaneously serve as a judge in the case and as Japan's ambassador to Estonia. The first, directed to the Presidency, is styled "Request for Disclosure Concerning the Decision of the Plenary of Judges on the Judicial Independence...
This is truly scandalous -- even by the ICC's standards. Thomas Verfuss explains: The Hague Judge Kuniko Ozaki wants to leave her position as a full-time judge of the International Criminal Court (ICC) in The Hague to become the ambassador of Japan in Estonia in April. Her departure from fulltime engagement at the ICC comes before she and two of her colleagues...
Last week, the excellent lawyers at The Guernica Group, led by my friend Toby Cadman, filed an Article 15 communication with the Office of the Prosecutor (OTP) arguing that the ICC should open an investigation into the deportation of civilians from Syria to Jordan. The communication itself is not public, so what we know of TGG's legal argument comes from their...
In a recent post at EJIL: Talk! on the India/Pakistan crisis, Mary Ellen O'Connell references a book chapter in which she suggests that Israel's 1976 raid on Entebbe was the first situation in which a state invoked the "unwilling or unable" doctrine as a jus ad bellum justification for self-defense: Christian Tams, Dire Tladi, and I will soon publish, Self-Defence Against Non-State...