Does the Rome Statute Empower Individuals or Organisations to Trigger the Iccs Jurisdiction free essay sample

By looking at the provisions of the Rome Statute, the International Criminal Court founding treaty, this paper analyses the role of individuals and organisations in the functioning of the ICC. It argues that, although the ICC’s Prosecutor may decide to open an investigation, acting under his proprio motu powers, on the basis of communications and information he has received from them, individuals, groups, intergovernmental or nongovernmental organisations play no role in triggering the ICC’s jurisdiction rather than providing the mere communications and information on crimes within the jurisdiction of the ICC. I. Introduction The latest UN Report, purportedly written by a Group of Experts (GoE), is one of the sources that recently made the headlines about the DR Congo security crisis. In the report, the so-called Group of Experts submits that the Government of Rwanda has been assisting renegade soldiers (M23) in the recent rebel uprising in Eastern DRC through the provision of material and financial support. 2 1 2 The author of this paper graduated with a Master’s Degree from the University of Cape Town (UCT), where he specialised in Criminal Justice. He is currently serving as an Assistant to National Prosecutors in the Office of the Prosecutor General of Rwanda. His research interests include International Criminal Law, International Humanitarian Law and Human Rights Law. UN ‘The UN Report on DR Congo: A Response from Rwandan Scholars’ available online at http://www. allafrica. com, accessed on 17 October 2012 and MINAFFET, ‘Rwanda’s response to the allegations contained in the addendum to the Un Group of Experts interim report’ available online at http://www. minaffet. gov. rw accessed on 30 July 2012. Does the Rome Statute empower individuals or organisations to trigger the jurisdiction of the ICC? 2|2012 The story of an internal UN report, concluding that Rwanda was providing material support to the M23 rebels in the DRC, was broken for the first time by BBC on 28 May 2012. 3 It was triggered in different newspapers inter alia, New York Times and Financial Times. 4 Following that report, individuals and associations from Congo and opponents of Rwandan Government filed the complaints to the ICC’s Prosecutor on Friday, 17 August 2012. They asked to pursue Rwandan leaders over the alleged involvement in the ongoing rebellion in eastern Democratic Republic of Congo (DRC). Accordingly, this situation raises the issue of whether the ICC may exercises its jurisdiction pursuant to the complaints filed to the ICC’s Prosecutor by individual persons or organisations. Before looking at this legal issue, it is important to talk about the ICC’s jurisdiction and its trigger mechanisms. II. Background to the ICC The post-World War II Nuremberg and Tokyo tribunals to prosecute Nazi and Japanese leaders for crimes against peace, war crimes, and crimes against humanity established precedent for other ad hoc international courts and tribunals, such as the International Criminal Tribunals for the former Yugoslavia 5 and for Rwanda. 6 Additionally, the United Nations authorised the creation of a Special Court for Sierra Leone (SCSL) to prosecute those with the greatest responsibility for serious violations of international humanitarian law and domestic law committed in the territory of Sierra Leone since November 3 4 5 6 BBC ‘Rwanda supporting DR Congo mutineers’ BBC, 28 May 2012, available online at http://hubert. Fennor. com/post/2012/05/28/Rwanda-supporting-DR-Congo-mutineers, accessed on 27 July 2012. Wallis, William ‘Congo probes claim of Rwandan role in violence’ Financial Times, 29 May 2012, available online at http://www. ft. com/intl/cms/s/0/fd0d525a-a998-11e1-977200144feabdc0. html-axzz1wHAdo5xy, accessed on 27 July 2012 and Kron, Josh ‘UNReport Says Rwandans Recruited to Fight in Congo. ’ The New York Times, 28 May 2012, available online at http://www. nytimes. com/2012/05/29/world/Africa/unOsaysOrwandansOrecruit edOtoOfightOinOcongo. tml, accessed on 27 July 2012. On 25th May 1993, the UN Security Council Resolution 827 (1993) established the International Criminal Tribunal for the former Yugoslavia (ICTY). It had its precursors in UN Security Council Resolution 752, which asked parties to respect humanitarian law; UN Security Council Resolution 771, which condemned ethnic cleansing and demanded access by international observers; and UN Security Council Resolution 780, which requested the UN Secretary General to establish a Commission of Experts to investigate alleged violations of humanitarian law. The UN Security Council Resolution 935 (2004) asked the Secretary General to establish a Commission of Experts to examine the allegations of genocide and grave violations of international humanitarian law in Rwanda. After its investigation, the Commission recommended that an international tribunal be established to address the crimes. On November 8, 2004, the Security Council, in Resolution 955, established the International Criminal Tribunal for Rwanda (ICTR). Does the Rome Statute empower individuals or organisations to trigger the jurisdiction of the ICC? |2012 30, 1996. 7 Separate judicial mechanisms have also been set up for cases involving East Timor (Timor-Leste) and Cambodia. Further, the U. N. Security Council authorised the establishment of a Special International Tribunal for Lebanon in 2007, which began functioning in March 2009. These courts and tribunals are distinct from the International Criminal Court (ICC). While established by the UN Security Council to address all egations of crimes against humanity in various countries, these tribunals were casespecific, limited in jurisdiction, and temporary. By contrast, the ICC was established by multilateral treaty and is a permanent, international criminal tribunal. The Rome Statute which created the ICC entered into force on 1 July 2002 after ratification by 60 countries. 8 It was established to help end impunity for the perpetrators of the most serious crimes of concern to the international community, namely war crimes, crimes against humanity, the crime of aggression and genocide 9 if national authorities with jurisdiction are unwilling or unable to do so genuinely. 0 By ratifying the Rome Statute, the International Criminal Court’s founding treaty, a State agrees that it has the duty to investigate and prosecute the crimes included in the Rome Statute. 11 It also agrees that should it fail to do so, the ICC may open an investigation 12, if the situation fulfils all jurisdictional requirements. These requirements include the temporal (that the crimes in 7 8 9 10 11 12 The Special Court for Sierra Leone (SCSL), a hybrid international-domestic court based in Sierra Leone’s capital, Freetown, was set up jointly by the Government of Sierra Leone and the United Nations under Security Council Resolution 1315 (2000). There are, at this time of writing, 121 State parties to the ICC. See the ICC official website ‘The States Parties to the Rome Statute available online at http://www. icc cpi. int/en_menus/asp/states%20parties/Pages/the%2 0states, accessed on 10 November 2012. See the art. 5 of the Rome Statute of the International Criminal Court. The first review conference of the Rome Statute of the International Criminal Court (ICC), held between 31 May and 11 June 2011 in Kampala, ended with a major amendment incorporating a definition of crime of aggression into the Statute. The amendment will come into force a year after ratification of 30 State parties. However, the exercise of jurisdiction will only be possible after 1 January 2017, if States parties take such a decision at the next review conference. See art. 5(2), 8bis, 15bis and 15ter of the Rome Statute. See the art. 17(1) (a) of the Rome Statute. Art. 12 (1) of the Rome Statute. The Court’s Statute is based on the principle of complementarity, ‘a principle that ensures that the Court does not usurp the primary responsibility of states to deal with the crimes that also fall under the jurisdiction of the Court. ’ This implies that the ICC is a court of last resort. In the other words, the ICC’s effectiveness is subject to the unwillingness or ineffectiveness of national criminal systems. Quoted from Lynn Gentile ‘Understanding the International Criminal Law’ in Max du Plessis African Guide to International Criminal Law, ISS Publisher, Pretoria, 2008, p. 9. Does the Rome Statute empower individuals or organisations to trigger the jurisdiction of the ICC? 4|2012 question occurred after July 1, 2002 or after the date in which the Statute entered into effect for the territory in question) and the material (crimes against humanity, genocide, crime of aggression and war crimes). Further, the Court has jurisdiction only over te rritories and nationals of States parties, unless the situation comes to the attention of the Court through the United Nations Security Council. Although the ICC’s prosecutions have been praised by human rights advocates, the perception that the Court has focused on Africa and the ICC Prosecutor’s choice of cases to investigate have been controversial among leaders and commentators on the African continent. The ICC’s investigations in Africa have raised concerns over African sovereignty, in part due to the long history of foreign intervention on the continent. Some observers have praised the ICC’s investigations in Africa as a crucial step against impunity on the continent, but the ICC’s actions have also provoked debates over the court’s potential impact, its perceived prioritisation of Africa over other regions, its selection of cases, and the potential effect of prosecutions on peace processes. Notably, critics have accused the ICC of potentially jeopardising political settlements that may keep the peace in the pursuit of an often abstract justice. 13 Surprisingly, its selective justice has targeted so far only alleged criminal leaders who don’t serve Western interests on the continent. 4 To date, the Office of the ICC’s Prosecutor (OTP) has published the conclusions of its preliminary examination into alleged crimes committed in Iraq 15 and Venezuela 16 dismissing the cases on grounds that the statutory requirements needed to open an investigation had not been satisfied. However, the Office of the Prosecutor is currently investigating in seven African countries n amely, The Democratic Republic of Congo (DRC), Uganda, the Darfur region of Sudan, Central African Republic (CAR), Kenya, Libya and Ivory Coast. This attitude 13 14 5 16 In its 2010 July Summit in Kampala, Uganda, African Union (AU) decided not to cooperate with the ICC and rejected the opening of an ICC liaison office in the Ethiopian capital, Addis Ababa; and criticises the conduct of the ICC Prosecutor on the basis that he â€Å"has been making egregiously unacceptable, rude and condescending statements in the case against President al-Bashir and other situations in Africa. See, Assembly of the African Union, ‘Decision on the Progress Report of the Commission on the Implementation of Decision Assembly/AU/Dec. 70 (XIV) on the Second Ministerial Meeting on the Rome Statute of the International Criminal Court (ICC),’ Assembly/AU/Dec. 296 (XV), Kampala, July 27, 2010, paras. 5, 8 and 9. See the cases of President Bashir of Sudan and Late President of Libya Muammar Moham med Abu Minyar Gaddafi. Lynn Gentile supra note 13, p. 111. Idem, p. 112. Does the Rome Statute empower individuals or organisations to trigger the jurisdiction of the ICC? 5|2012 has made many African leaders and analysts see in ICC, an international judicial instrument aimed at protecting only capitalist interests by targeting African leaders who are formally against these interests. Thus, this paper will look at the role of organisations in the functioning of the ICC, following the recent complaints filed to the ICC’s Prosecutor by different associations of Congolese people and the so-called opponents of the Government of Rwanda. This situation raises the issue of whether the ICC may exercise its jurisdiction pursuant to the referral of individual persons or associations. But, before examining this issue, it is worthwhile to look first, at the trigger mechanisms of the ICC’s jurisdiction. III. The trigger mechanisms of the ICCs jurisdiction Under the provisions of the Rome Statute, the ICC can exercise jurisdiction over crimes if one of the following conditions is met: (i)a State Party refers a situation to the ICC; (ii) the United Nations Security Council (UNSC), acting under Chapter VII, refers a situation to the ICC; (iii) a Country that is not a State Party to the Statute lodges a declaration pursuant to article 12 (3) accepting the jurisdiction of the Court and (iv)the ICC’s Prosecutor decides to open an investigation acting under his proprio motu powers, on the basis of communications and information he has received from individuals, groups, States, intergovernmental or non-governmental organizations. These are trigger mechanisms of the ICC’s jurisdiction. Thus, this section considers the above mechanisms of triggering the ICC’s jurisdiction. Further, it analyses situations which were referred to the ICC’s Prosecutor by way of each mechani sm. 1. State Party referral According to the art. 13 (a) of the Rome Statute, ‘the Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: (a) [a] situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14†¦Ã¢â‚¬â„¢ 17 17 Art. Article 14 of the Rome Statute states: (1) A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes. (2) As far as possible, a referral shall specify the relevant circumstances and be accompanied by such supporting documentation as is available to the State referring the situation. Does the Rome Statute empower individuals or organisations to trigger the jurisdiction of the ICC? 6|2012 In the light of the provisions of art. 13 (a) and 14 of the Rome Statute, it is evident that State party referral is the main trigger mechanism of the jurisdiction of the ICC under the Rome Statute. By way of this referral mechanism, only State Parties to the Rome Statute may trigger the jurisdiction of the Court. In the first three years of the ICC, the Office of the Prosecutor has received three referrals from States Parties namely, Uganda, the Democratic Republic of Congo (DRC) and the Central African Republic (CAR), each referring situations in its own territory. The following sub-sections analyse briefly each referral. a) Uganda’s referral The Government of Uganda, a party to the ICC, referred ‘the situation concerning the Lord’s Resistance Army’ to the ICC in 2003. 18 The Lord’s Resistance Army (LRA) is a rebel group that has fought for over two decades in northern Uganda. In October 2005, the ICC unsealed arrest warrants, the first issued by the Court, for LRA leader Joseph Kony and commanders Vincent Otti, Okot Odhiambo, Dominic Ongwen, and Raska Lukwiya. 9 The Prosecutor accused the LRA of establishing ‘a pattern of brutalisation of civilian’, including murder, forced abduction, sexual enslavement, and mutilation, amounting to crimes agai nst humanity and war crimes. 20 Kony is wanted for 12 counts of crimes against humanity, including murder, enslavement, sexual enslavement, rape, and â€Å"inhumane acts,† and 21 counts of war crimes, including murder, cruel treatment of civilians, directing an attack against a civilian population, pillaging, inducing rape, and the forced enlistment of children. The other LRA commanders are accused of crimes against humanity and war crimes. 21 None of the suspects are in custody. Lukwiya and Otti have reportedly been killed since the warrants were issued, while other LRA commanders are thought to be in neighboring countries. The Prosecutor is also reportedly investigating actions by the Ugandan military in northern Uganda. 18 19 20 21 Payam Akhavan, ‘The Lord’s Resistance Army Case: Uganda’s Submission of the First State Referral to the International Criminal Court’ (2005) 99 2 The American Journal of International Law 405-406. ICC Press Release, ‘Warrant of Arrest Unsealed against Five LRA Commanders’ 14October 2005, available online at http://www. icc-cpi. int, accessed on 12 November 2012. See the ICC Press Release supra note 19. Idem. Does the Rome Statute empower individuals or organisations to trigger the jurisdiction of the ICC? 7|2012 ) DRC’s referral The Democratic Republic of Congo government referred the situation of crimes within the jurisdiction of the Court allegedly committed anywhere in the territ ory of the DRC to the Prosecutor in April 2004. 22 Despite the end of a five year civil war in 2003 and the holding of national elections in 2006, DRC continues to suffer from armed conflict, particularly in the eastern regions of this country. The ICC has issued four arrest warrants in its first DRC investigation, which focuses on the eastern Congolese district of Ituri, where an interethnic war erupted in June 2003. 23 Two suspects namely, Thomas Lubanga Dyilo and Germain Katanga are in custody. Other two suspects namely, Bosco Ntaganda 24 and Mathieu Ngudjolo Chui 25 remain at large. A second investigation focuses on sexual crimes and other abuses committed in the eastern provinces of North and South Kivu. Two cases have been made public in connection with the Kivu’s investigation; one suspect was arrested in France in October 2010. 26 Another suspect remains also at large. 27 22 23 24 25 26 27 ICC’s Office of the Prosecutor Press Release, ‘Prosecutor Receives Referral of the Situation in the Democratic Republic of Congo’, 19 April 2004, available online at http://www. icccpi. int accessed on 23 November 2012. ICC ‘Situation in Democratic Republic of the Congo’ available online at http://www. icccpi. int/EN_Menus/ICC/Situations%20and%20Cases/Situations/Situation%20ICC%200104 /Pages/situation%20index. aspx, accessed on 11 December 2012. Bosco Ntaganda is allegedly criminally responsible under article 25(3)(a) of the Rome Statute for: Seven counts of war crimes: enlistment of children under the age of 15, conscription of children under the age of 15, using children under the age of 15 to participate actively in hostilities; murder, attacks against the civilian population, rape and sexual slavery, and pillaging; and Three counts of crimes against humanity: murder, rape and sexual slavery, and persecution. On 18 December 2012, Trial Chamber II of the International Criminal Court (ICC) acquitted Mathieu Ngudjolo Chui of the charges of war crimes and crimes against humanity. The Chamber ordered the Registrar to take the necessary measures to release Mathieu Ngudjolo Chui. Mathieu Ngudjolo Chui, a Congolese national, was charged with three counts of crimes against humanity and seven counts of war crimes allegedly committed in the context of an armed conflict in Ituri, during the attack against the Bogoro village on 24 Feb ruary 2003. On 12 October 2010, Callixte Mbarushimana, a Rwandan national in exile of the Democratic Forces for the Liberation of Rwanda (FDLR) militia, was arrested in France, where he was living as a refugee, following the ICC’ judges issuance of sealed warrant for the arrest of him on 28 September 2010. Sylvestre Mudacumura, Alleged Supreme Commander of the Forces Democratiques pour la Liberation du Rwanda (FDLR). The Pre-Trial Chamber II issued a warrant of arrest against him on 13 July 2012. Mudacumura is allegedly criminally responsible for committing nine counts of war crimes (attacking civilians, murder, mutilation, cruel treatment, rape, torture, destruction of property, pillaging and outrages against personal dignity), from 20 January 2009 to the end of September 2010, in the context of the conflict in the Kivus, in the Democratic Republic of Congo (DRC). Does the Rome Statute empower individuals or organisations to trigger the jurisdiction of the ICC? 8|2012 c) CAR’s referral The government of Central African Republic (CAR), a party to the ICC, referred the situation of crimes within the jurisdiction of the Court committed anywhere on its territory to the ICC Prosecutor in January 2005. 28 In this situation, ICC issued a sealed warrant of arrest against a DRC national, Jean-Pierre Bemba Gombo. Bemba was arrested in Belgium in May 2008 and turned over to the ICC in July 2008. 29 In June 2009, a panel of ICC judges confirmed three charges of war crimes and two charges of crimes against humanity for alleged rape, murder, and pillaging. 0 The warrant alleged that as commander of the Movement for the Liberation of Congo (MLC), one of two main DRC rebel groups during that country’s civil war (1998-2003), Bemba had overseen systematic attacks on civilians in CAR territory between October 2002 and March 2003. Bemba’s MLC , based in the DRC’s north, allegedly committed these abuses after it was invited into CAR by the President Ange-Felix Patasse to help quell a rebellion. The rebellion, led by Francois Bozize, was successful, and Bozize took control of CAR in 2003. Bozize’s government then initiated the ICC referral. 31 The charges hinge on the question of command responsibility: the Prosecutor contends that Bemba personally managed the MLC, stayed in constant contact with combatants, and was well informed about the group’s activities in CAR. Bemba’s trial opened on 22 November 2010. 2. The UN Security Council referral Art. 3 (b) of the Rome Statute provides that ‘[t]he Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: (b) [a] situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VI I of the Charter of the United Nations†¦Ã¢â‚¬â„¢ 28 29 30 31 ICC’s Office of the Prosecutor Press Release, ‘Prosecutor Receives Referral Concerning Central African Republic’, 7 January 2005, available online at http://www. icc-cpi. int accessed on 23 November 2012. Bemba had been the leading challenger to incumbent President Joseph Kabila in DRC’s 2006 presidential election, and was elected to the Congolese legislature in January 2007. He subsequently went into exile in Europe following armed clashes with security forces loyal to Kabila. ICC Pre-Trial Chamber II, ‘Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean Pierre Bemba Gombo’, 15June 2009, available online at http://www. icc-cpi. int accessed on 23 November 2012. Congressional Research Service International Criminal Court cases in Africa: status and policy issues (2011) Report for members and committees of congress, p. 24. Does the Rome Statute empower individuals or organisations to trigger the jurisdiction of the ICC? 9|2012 This provision empowers the UN Security Council to trigger the jurisdiction of the ICC. Certainly, the UN Security Council, through its mandate in the UN Charter pursuant to the Chapter VII, has always had a primary responsibility for the maintenance of international peace and security. Indeed, it was through Security Council Resolutions, 827 and 955 respectively, that the ICTY and the ICTR were established. The UN Security Council’s mandated power to resolve conflicts through use of force gives its preeminence over all existing international mechanisms in matters related to armed conflict and international humanitarian law. It has always been clear, then, that the UN Security Council would have a key role in any evolving permanent criminal court. By way of this trigger mechanism of the UN Security Council referral, two situations have been referred to the ICC’s Prosecutor, namely, the situation in Darfur and the situation in Libya. President Omar Hassan al-Bashir is one of individuals sought by the ICC in these situations. He is accused of war crimes, crimes against humanity, and genocide in Darfur. 32 It is the first attempt by the ICC to pursue a sitting Head of State. 33 The case has drawn praise from advocates but inspired a backlash among African States, which were previously supportive of the Court. Like Libya, Sudan is not a party to the ICC, and the jurisdiction was granted through a United Nations Security Council resolution. ) The Situation of Darfur in Sudan In September 2004, the Security Council had established an International Commission of Inquiry on Darfur under Resolution 1564, maintaining that the Sudanese government had not met its obligations under previous Resolutions. In January 2005, the Commissi on reported that it had compiled a confidential list of potential war crimes suspects and strongly recommended that the Security Council refer the situation to the ICC. 34 In 2005, the UN Security Council referred the situation in Darfur to the ICC Prosecutor. Following the referral, the ICC Prosecutor received the document archive of the Commission of Inquiry and the Commission’s sealed list of individuals suspected of committing serious abuses in Darfur, though this list 32 33 34 Decision on the Prosecutor’s application for a warrant of arrest against Omar Hassan Ahmad Al Bashir No ICC-02/05-01/09-1 of 4 March 2009, unreported. Available online at http://www. icc-cpi. int, accessed on 11 December 2012. Idem. UN Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General pursuant to Security Council Resolution 1564 of 18 September 2004 (2004) available online at http://www. un. org , accessed on 10 December 2012. Does the Rome Statute empower individuals or organisations to trigger the jurisdiction of the ICC? 10|2012 was not binding on the selection of suspects. The Office of the Prosecutor initiated its own investigation in June 2005. The Sudanese government also created its own special courts for Darfur in an apparent effort to stave off the ICC’s jurisdiction; however, the courts’ efforts have been widely criticized as insufficient. On 31 March 2005, the UN Security Council, acting under Chapter VII of the UN Charter, adopted Resolution 1593 (2005), which referred reports about the situation in Darfur, Sudan to the ICC Prosecutor. Currently, three warrants of arrest have been issued against officials of Sudan. Among the suspects of the crimes committed in Darfur, there are Ahammad Muhammad Harun (Ahmad Harun) 35, Ali Muhammad Ali Abd-Al-Rahman (Ali Kushayb) 36 and the current President of Sudan, Omar Hassan Ahmad Al Bashir (Omar Al Bashir). On the side of the rebel movements, there are Bahar Idriss Abu Garda 37, Abdallah Banda Abakaer Nourain 38 and Saleh Mohammed Jerbo Jamus. 39 b) The situation in Libya The situation in Libya was referred to the ICC Prosecutor by the United Nations Security Council, through the unanimous adoption of Resolution 1970 on 26 February 2011. On 3 March 2011, the ICC Prosecutor decided to open an investigation and requested, on 16 May 2011, the issuance of the arrest warrants. On 27 June 2011, following the Prosecutor’s request, the Pre-Trial Chamber I issued three warrants of arrest respectively for Libyan leader, late Muammar Mohammed Abu Minyar Gaddafi, his eldest son Saif Al-Islam Gaddafi and Abdullah Al? Senussi who was the head of military intelligence in Libya (and Gaddafi’s brother in law). All three are accused for crimes against humanity (murder and persecution) allegedly committed across Libya from 15 February 35 36 37 38 39 The former Minister of State for the Interior of the Government of Sudan and the Minister of State for Humanitarian affairs of Sudan. He is currently Governor of South Kordofan region of Sudan since his appointment in May 2009. See ICC ‘Information sheet on the case No ICC-02/05-01/07 Prosecutor v. Ahammad Muhammad Harun (Ahmad Harun) and Ali Muhammad Ali Abd-Al-Rahman (Ali Kushayb), available online at http://www. icc-cpi. nt [Accessed 01 September 2011. He is the so- called leader of the Janjaweed Militia since august 2003 to March 2004. See the the ICC’s information sheet, supra note 35. The Chairman and General Coordinator of military operations of the United Resistance Front The Commander in Chief of Justice and Equity Movement (JEM ). Ex-Chief of Staff SLA- Unity and subsequently incorporated in JEM. Does the Rome Statute empower individuals or organisations to trigger the jurisdiction of the ICC? 11|2012 2011 until at least 28 February 2011, through the State apparatus and Security Forces. 40 As it was previously argued, there are similarities with the situation in Darfur. In both cases the head of State of a non-party to the Rome Statute is subject to an arrest warrant after a Security Council referral. 3. Acceptance of the court’s jurisdiction This mechanism was designed to allow the non State Parties to the Rome Statute to trigger the jurisdiction of the ICC. Indeed, article12 (3) of the Rome Statute outlines the ways in which non States can accept the exercise of jurisdiction by the Court with respect to the situation in question. A non State party may consent to the court’s jurisdiction by means of a declaration. Such a declaration may be general, or subject to limitations regarding the crimes involved or the time period covered. This mechanism was conceived, as explained in the commentary to the draft statute, ‘to facilitate acceptance of the Rome Statute as a whole and in individual cases. ’ 41 In practice, this means that a State’s becoming party to the Statute for a specific period and specific crimes does not entail automatic acceptance of the court’s jurisdiction over all crimes listed in the Rome Statute. Ivory Coast is the first non State party which has accepted the jurisdiction of the ICC by means of this mechanism. Ivory Coast accepted the jurisdiction of the Court as of 19 September 2002 and submitted its declaration on 1 October 2003. Resultantly, the ICC is currently investigating in Ivory Coast for the crimes committed in this country. The former President Laurent Gbagbo is currently in custody. Laurent Gbagbo allegedly bears individual criminal responsibility, as indirect co-perpetrator, for four counts of crimes against humanity: a) murder, b) rape and other sexual violence, c) persecution and d) other inhuman acts, allegedly committed in the context of post-electoral violence in the territory of Cote d’Ivoire between 16 December 2010 and 12 April 2011. 40 41 ICC’s Press Release ‘ICC Prosecutor: Gaddafi used his absolute authority to commit crimes in Libya’ 16 May 2011, available online at http://www. icc-cpi. int/Menus/Go? id=1365e3b78152-4456-942c-a5cd5a51e829lan=en-GB, accessed on 03 December 2012. Rebecca Russell International Criminal Court: Finding justice for victims, ending impunity for perpetrators, World Vision Publications, California, 2002, p. 20. Does the Rome Statute empower individuals or organisations to trigger the jurisdiction of the ICC? 12|2012 Further, the ICC issued under seal the warrant of arrest against Simone Gbagbo, the former first lady of Ivory Coast on 29 February 2012. The warrant was unsealed 22 November 2012. 42 Simone Gbagbo allegedly bears individual criminal responsibility, as indirect co-perpetrator, for four counts of crimes against humanity: a) murder, b) rape and other sexual violence, c) persecution and d) other inhuman acts, allegedly committed in the context of post-electoral violence in the territory of Cote d’Ivoire between 16 December 2010 and 12 April 2011. 4. Referral by the Prosecutor acting Proprio Motu Art. 3 (c) of the Rome statute empowers the Prosecutor of the ICC to trigger the jurisdiction of the ICC. The article states that ‘[t]he Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: (c ) [t]he Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15. ’ In the light of art. 13(c) and 15 of the Rome Statute, the Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court. In this regards, the Prosecutor of the ICC, acting proprio motu, referred the situation in Kenya to the Court. Controversy within Africa has erupted over the ICC attempts to prosecute senior Kenyan officials in connection with that country’s post-election violence of 2007-2008 in which over 1,000 individuals were killed and a range of other abuses, including sexual violence, were allegedly committed.. 43 The Prosecutor’s request to open an investigation in Kenya was approved by ICC judges in March 2010. Kenya is a party to the ICC, but it is the first instance in which ICC judges have authorised an investigation based on a recommendation from the Prosecutor, as opposed to a state referral or U. N. Security Council directive. On 15December 2010, the Prosecutor presented two cases, against a total of six individuals, for alleged crimes against humanity. The Prosecutor has applied to ICC judges for summonses, rather than arrest warrants, stating that he believes summonses are sufficient to ensure the suspects’ appearance before the Court. The suspects named in the first case are William Ruto, 42 43 Warrant of Arrest for Simone Gbagbo No ICC-02/11-01/12, 29 February2012, available online at http://www. icc-cpi. int/iccdocs/doc/doc1344439. pdf, accessed on 11 December 2012. Mba Chidi Nmaju ‘Violence in Kenya: Any Role for the ICC in the Quest for Accountability? ’ (2009) 3 African Journal of Legal Studies 78 at 80. Does the Rome Statute empower individuals or organisations to trigger the jurisdiction of the ICC? 13|2012 Member of Parliament and former Minister of Education; Henry Kosgey, Minister of Industrialization; and Joshua Arap Sang, a radio journalist. Those named in the second case are Francis Muthaura, head of the public service, secretary to the Cabinet, and chairman of the National Security Advisory Committee; Uhuru Kenyatta, deputy prime minister and minister of finance; and Mohamed Hussein Ali, former commissioner of the Kenyan police. The suspects in the first case are associated with Prime Minister Raila Odinga, while those in the second case are associated with President Mwai Kibaki. Odinga has expressed support for ICC involvement, while Kibaki has criticized it and called for trials to be held within Kenya instead. Although the Republic of Kenya is a State Party to the Court and initially supported ICC engagement, some fear the prosecutions could be destabilizing. On 10 December 2012, Kenyan chief justice Willy Mutunga announced the establishment of a special division of the High Court to try cases stemming from the 2007-08 bloodshed, as well as other crimes under international law. The chief justice said the International Crimes Division was needed because Kenya’s security, stability and economy was ‘mortally threatened’ by international-scale crimes. 44 The new judicial division will employ the International Crimes Act, a domestic version of the Rome Statute which underpins the ICC. Kenya passed the act in 2009, but it has not so far been applied to crimes committed during the postelection violence, since it was not in force at the time. However, there has been a groundswell of support for a mechanism to deal with these crimes. These bring me to the analysis of the role of individual persons and organisations in the work of the ICC. IV. The role of individuals and organisations in the functioning of the ICC The International Criminal Courts founding treaty, the Rome Statute, provides that individuals or organisations may submit information on crimes within the jurisdiction of the Court. 45 These submissions are referred to as ‘communications’ or complaints to the Office of the Prosecutor (OTP). As the end of 2011, the Office had considered information on crimes from numerous sources including open sources and ‘communications. ’ 9,332 ‘communications’ 44 45 Simon Jennings, ‘Kenyan Chief Justice Announces Special Court’ available online at http://iwpr. net/report-news/kenyan-chief-justice-announces-special-court, accessed on 11 December 2012. Art. 15 of the Rome Statute. Does the Rome Statute empower individuals or organisations to trigger the jurisdiction of the ICC? 14|2012 were received pursuant to article 15 of the Statute, of which 4,316 were manifestly outside the jurisdiction of the Court. 46 As it was stated previously, Congolese and Rwandan groups opposed to the Republic of Rwanda asked the International Criminal Court to pursue Rwandan leaders over the so-called war crimes committed in the Democratic Republic of Congo (DRC). Indeed, these complaints may be considered as communications, as the Rome Statute does not specify what the communication should contain. The Office of the Prosecutor analyses all communications received and the extent of the analysis is affected by the detail and substantive nature of the information available. If the available information does not provide sufficient guidance for an analysis that could lead to a determination that there is a reasonable basis to proceed, the analysis is concluded and the sender informed. However, communications from individuals or organisations should not be confused with referrals from States Parties or the United Nations Security Council. In this regards, William Schabas points out that, International organisations, individuals [and] non-governmental organisations †¦ are given no formal recognition with respect to initiating proceedings. However, in practice, all of them are likely to establish contact with the Prosecutor and attempt to persuade him or her to take action. ’ 47 In accordance with Article 15 (2) of the Rome Statute, the duty of the ICC’s Prosecutor is to analyse information received on potential crimes, in order to determine whether there is a reasonable basis to proceed with an investigation. Unlike a national prosecutor, who may initiate an investigation on the basis of very limited information, the Prosecutor of the International Criminal Court is governed by the relevant regime under the Rome Statute. Under this regime, his responsibility is to carry out a preliminary phase of gathering and analysing information, after which he may seek to initiate an investigation only if the relevant criteria of the Statute are satisfied. 48 46 47 48 OTP-ICC, ‘Communications, Referrals and Preliminary Examinations’ available online at http://www. icc-cpi. int/Menus/Go? id=da143d8f-eb36-4f87-9818-1a6891956160lan=enGB, accessed on 10 December 2012. William A. Schabas An introduction to the International Criminal Court, 2nd edition, Cambridge University Press, Cambrige, 2004, p. 120. OTP-ICC, ‘The response of ICC’s Prosecutor to Iraq communications’ 9 February 2006, available online at http://www. icc-cpi. int, accessed on 03 December 2012. Does the Rome Statute empower individuals or organisations to trigger the jurisdiction of the ICC? 15|2012 The Prosecutor is required to consider three factors. First, he must consider whether the available information provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed. 49 Where this requirement is satisfied, he must then consider admissibility before the Court, in light of the requirements relating to gravity and complementarity with national proceedings. 50 Third, if these factors are positive, he must give consideration to the interests of justice. 51 Systematic analysis of these questions can take time. Using the limited powers at its disposal in the analysis phase, the Office of the Prosecutor seeks to collect information until it is possible to determine that there is, or is not, a reasonable basis to proceed with an investigation in accordance with the criteria of the Statute. Where the requirements are satisfied, he submits to a Pre-Trial Chamber of the Court a request for authorisation to initiate an investigation. Where the requirements are not satisfied, he informs those who provided the information. From the above discussions, it is clear that individual persons or organisations, as it is the case of Congolese and Rwandan groups, are not empowered to trigger the ICC‘s jurisdiction. They may only provide communications and information to the Prosecutor of the ICC who has the duty to analyse these communications before taking further actions. V. Concluding remarks Under the provisions of the Rome Statute of the ICC, only States, the UN Security Council and the Prosecutor’s Office would be able to initiate proceedings before the Court. Pursuant to art. 14, a State could file a complaint alleging that crimes within the jurisdiction of the ICC have been committed if it is a party to the Statute. A complaint could be also filed by a non State party to the Statute which has also accepted the Court’s jurisdiction with respect to the particular crime. In each case, the Statute provides that the complaint shall, as far as possible, specify the circumstances of the alleged crime, the identity and whereabouts of the suspect and be accompanied by supporting documentation available to the Complainant State. 52 49 50 51 52 Art. 53 (1) (a) of the Rome Statute. Art. 53 (1) (b) of the Rome Statute. Art 53 (1) (c) of the Rome Statute. For more information about the interest of justice, see the ICC-OTP ‘Policy Paper on the Interest of Justice’ September 2007, available online at http://www. icc-cpt. int, accessed on 09/12/2012. Art. 14 of the Rome Statute. Does the Rome Statute empower individuals or organisations to trigger the jurisdiction of the ICC? 16|2012 For individuals and organisations in general, they are not formally recognised to initiate the ICC’s proceedings. They are only authorised to provide communications and information to the Office of the Prosecutor of the International Criminal Court (OTP-ICC). This implies that, individuals and organisations cannot trigger the jurisdiction of the ICC in the form of States and the UN Security Council. Back to the complaints from Congolese groups and opponents Rwandan groups, it is clear that these complaints are simple communications and information which will be analysed by the ICC’s Prosecutor with possibility to be rejected because they do not meet the requirements of the Statute. 53 REFERENCES A. Schabas, William An introduction to the International Criminal Court, 2nd edition, Cambridge University Press, Cambrige, 2004, p. 120. Akhavan, Payam, ‘The Lord’s Resistance Army Case: Uganda’s Submission of the First State Referral to the International Criminal Court’ (2005) 99 2 The American Journal of International Law 405. Assembly of the African Union, ‘Decision on the Progress Report of the Commission on the Implementation of Decision Assembly/AU/Dec. 270 (XIV) on the Second Ministerial Meeting on the Rome Statute of the International Criminal Court (ICC),’ Assembly/AU/Dec. 296 (XV), Kampala, 27 July 2010. BBC ‘Rwanda supporting DR Congo mutineers’ BBC, 28 May 2012, available online at http://hubert. Fennor. om/post/2012/05/28/Rwanda-supportinDR-Congo-mutineers, accessed on 27 July 2012. Congressional Research Service, International Criminal Court cases in Africa: status and policy issues, Report for members and committees of congress, 2011. Decision on the Prosecutor’s application for a warrant of arrest against Omar Hassan Ahmad Al Bashir No ICC-02/05-01/09-1 of 4 March 2009, unreported. Available online at http://www. icc-cpi. int, accessed on 11 December 2012. Gentile, Lynn ‘Understanding the International Criminal Law’ in Max du Plessis African Guide to International Criminal Law, ISS Publisher, Pretoria, 2008. 53 For more details about the requirements of the Statute, see art. 53 of the Rome Statute. Does the Rome Statute empower individuals or organisations to trigger the jurisdiction of the ICC? 17|2012 ICC ‘Information sheet on the case No ICC-02/05-01/07 Prosecutor v. Ahammad Muhammad Harun (Ahmad Harun) and Ali Muhammad Ali Abd-Al-Rahman (Ali Kushayb), available online at http://www. icc-cpi. int [Accessed 01 September 2011. ICC ‘Situation in Democratic Republic of the Congo’ available online at http://www. icc-cpi. int/EN_Menus/ICC/Situations%20and%20Cases/ Situations/Situation%20ICC%200104/Pages/situation%20index. aspx, accessed on 11 December 2012. ICC ‘The States Parties to the Rome Statute available online at http://www. icc cpi. int/en_menus/asp/states%20parties/Pages/the%2