In this week’s review, news about sentencing in the ICC contempt case, Jordan’s appeal of the ICC’s non-compliance decision, judicial review proceedings in the Flotilla Situation, Duterte’s announcement about withdrawing from the Rome Statute, new Presidency elected and new judges sworn in at the ICC and more:
UN High Commissioner describes Israeli settlements in the occupied West Bank and Jerusalem as war crimes
In a report to be presented to the Human Rights Council, the UN High Commissioner for Human Rights Zeid Ra’ad Al-Hussein has described the growth of Israeli settlements in Palestinian Territory as a war crime. Mr Al-Hussein specified that the transfer of the population by an occupying State into occupied territory is a breach of Article 147 of the Fourth Geneva Convention. The report is one of five to be presented to the Human Rights Council on 19 March. (Breaking Israel News)
ICC Trial Chamber issues scheduling order on sentencing submissions after the Bemba et al., contempt judgments
On 14 March, ICC Trial Chamber VII in the Bemba et al case issued an order on sentences following the Appeals Chamber Judgments of 8 March. The Trial Chamber order sets out the timetable for submissions of the parties to the case. The Registry must provide updated reports on the solvency of Mr Bemba, Mr Kilolo and Mr Mangenda by 13 April 2018. The Prosecution must file submissions on sentencing by 30 April and the defence for Mr Bemba, Mr Kilolo and Mr Mangenda must file by 30 May. The Appeals Chamber acquitted Mr Bemba, Mr Kilolo and Mr Mangenda on the charge of presenting false evidence and remanded the decision on sentencing back to the Trial Chamber in light of this. All other points of appeal in relation to the convictions of the five accused were upheld. (Trial Chamber Order on Sentencing)
Jordan files appeal with ICC on Art 87(7) decision on non-compliance
On 12 March, the Kingdom of Jordan filed an appeal against the decision of ICC Pre-Trial Chamber II on Jordan’s non-compliance with Article 87(7) of the Rome Statute regarding the arrest warrant for Omar Al-Bashir. In December 2017, the ICC announced that it was referring Jordan to the UN Security Council over its failure to arrest Sudanese president Omar Al-Bashir when he visited Jordan in March 2017. In its appeal, Jordan argues firstly that the Pre-Trial Chamber erred in its conclusions regarding the effects of the Rome Statute upon the immunity of President Al-Bashir, including its conclusions that – Article 27(2) of the Rome Statute excludes the application of Article 98; that Article 98 establishes no rights for States Parties; that Article 98(2) does not apply to the 1953 Convention on the Privileges and Immunities of the Arab League; and that even if Article 98 applied it would provide no basis for Jordan not to comply with the Court’s request. Jordan argues secondly that the Chamber erred in concluding that Security Council resolution 1593 (2005) affected Jordan’s obligations under customary and conventional international law to accord immunity to President Al-Bashir. Finally, it agues that even if the Chamber’s decision regarding non-compliance was correct, it abused its discretion by referring the matter to the Assembly of States Parties and the Security Council (Kingdom of Jordan Appeal Submission)
ICC Prosecutor makes submission on jurisdiction in Flotilla review proceedings
On 13 March, the Office of the Prosecutor of the ICC filed its submission on jurisdiction in response to the Union of Comoros review application. The OTP’s submission argues that the Rome Statute does not grant the Trial Chamber jurisdiction to review decisions of the OTP under Rule 108(3) or to review the Prosecutor’s independent exercise of discretion under Article 53(4). On 23 February 2018, the Union of Comoros filed a second application pursuant to Article 53(3)(a) of the Rome Statute before the ICC Pre-Trial Chamber I for judicial review of the two Decisions, taken by the OTP on 29 November 2017, not to proceed with investigating the 31 May 2010 Israeli raid on a humanitarian aid flotilla bound for Gaza Strip. (Office of the Prosecutor Submission)
Duterte announces the Philippines’ withdrawal from the Rome Statute
Almost one month after the ICC Prosecutor Fatou Bensouda’s decision to open a preliminary investigation into the situation in the Republic of the Philippines, President Rodrigo Duterte announced the withdrawal of the Philippines from the Rome Statute of the International Criminal Court with “immediate effect” on 14 March 2018. Duterte initially expressed his willingness to cooperate with the ICC, a statement which he retracted shortly after. He ordered the police in the Philippines not to cooperate with the court. Under Article 127 of the Rome Statute, the withdrawal of a State Party is effective one year after the receipt of the notification addressed to the UN Secretary-General. The withdrawal from the ICC does not apply retroactively.
In practical terms, the State Party has an obligation to cooperate with the ICC in connection with criminal investigations and proceedings commenced prior to the date of effective withdrawal. Hence, the country’s withdrawal from the Rome Statute does not prevent the ICC from continuing its preliminary investigations into the alleged crimes against humanity or subsequently bringing Duterte to trial. The ICC Prosecutor announced her decision to open preliminary investigations into the reported extrajudicial killings on 8 February 2018. These killings have allegedly been perpetrated by Philippine police forces within the context of the “war on drugs”campaign launched by the President Rodrigo Duterte on 1 July 2016. The police anti-drug operation has reportedly killed over 8,000 people. (The Guardian, Reuters)
New Presidency elected at ICC
On 11 March, the judges of the International Criminal Court elected Judge Chile Eboe-Osuji as President of the Court, Judge Robert Fremr as First Vice-President and Judge Marc Perrin de Brichambaut as Second Vice-President. Each member of the Presidency is elected for a three-year renewable term. (ICC Press Release)
Six new ICC Judges sworn in on 9 March
On 9 March, the International Criminal Court held a ceremony to swear in six new judges for terms of nine years. The six judges, who were elected during the Assembly of States Parties sixteenth session in December 2017, included five women and represented the Rome Statute member state nations of Peru, Uganda, Japan, Benin, Canada and Italy. The swearing ceremony was conducted by ASP President Mr O-Gon Kwon. The new judges include Judge Luz del Carmen Ibañez Carranza, Judge Solomy Balungi Bossa, Judge Tomoko Akane, Judge Reine Alapini-Gansou, Judge Kimberly Prost and Judge Rosario Salvatore Aitala. (ICC Press Release)
Transnational Government of Tamil Eelam calls for Sri Lanka referral to ICC
The Transnational Government of Tamil Eelam (TGTE) reiterated a call to refer Sri Lanka to the Prosecutor of the International Criminal Court, for war crimes, crimes against humanity and genocide allegedly committed by the Sri Lankan government against Tamil civilians in 2009. The TGTE is a political organisation representing Tamils in Sri Lanka and it previously ran a campaign in support of the referral to the ICC which began in 2011 and gathered over 1.8 million signatures. In response to this petition, the UN Human Rights Council instead called for Sri Lanka to establish an accountability mechanism with the assistance of foreign judges. In a report dated 28 January 2018, the UN High Commissioner for Human Rights stated that Sri Lankan authorities had not yet demonstrated a capacity or willingness to address impunity for violations of international human rights law and international humanitarian law. (EIN News; TGTE Booklet)
Photo: UN Human Rights Council/Twitter
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