Conflict, accountability, and justice (new voices).

Author:Ahmad, Hassan
Position:Proceedings of the 110th Annual Meeting of the American Society of International Law: Charting New Frontiers in International Law

This panel was convened at 3:00 p.m., on Thursday, March 31, 2016, by its moderator, Beth Van Schaack of Stanford Law School, who introduced the panelists: Hassan Ahmad of the University of California, Berkeley Boalt School of Law; Rebecca Hamilton of New York University School of Law; Steven Koh of the U.S. Department of Justice; and Shiri Krebs of Stanford Law School. (1)

INTRODUCTORY REMARKS BY BETH VAN SCHAACK ([double dagger])

This New Voices panel features rising academics all studying the global system of international justice and the framing and inputs necessary to enable this system to function fairly and effectively. Hassan Ahmad presents a novel and provocative proposal that would unmoor the International Criminal Court's Prosecutor and Pre-Trial Chamber from the Rome Statute's jurisdictional limitations when gravity is being adjudicated at the preliminary examination or investigative stages. His approach would enhance accountability in situations involving transnational violence implicating the territory and nationals of both ICC states parties and non-party states. Rebecca Hamilton presents her proposal for better prosecuting what she describes as State-Enabled Crimes in order to overcome the current bifurcated approach that pursues individual criminal responsibility and state responsibility in acoustic isolation. She argues that melding these two approaches in a single proceeding will be fairer to defendants, be more satisfying for victims, offer a more accurate portrait of how violence unfolded, and better effectuate the goals of our system of international justice. Finally, Shiri Krebs explores important epistemological questions around international fact-finding efforts and presents counterintuitive but crucial observations from recent empirical research aimed at understanding how people receive, and process, information about the commission of abuses by their compatriots. Her research calls into question many core assumptions undergirding the creation and operation of modern commissions of inquiry.

CONTEXT AT THE INTERNATIONAL CRIMINAL COURT

By Hassan Ahmad ([double dagger])

The International Criminal Court (ICC or the Court) is bound by the Rome Statute's (the Statute) (1) delineation of temporal, territorial, subject matter, and nationality jurisdiction. This paper advocates for the Office of the Prosecutor (OTP) and Pre-Trial Chamber (when authorizing a proprio motu investigation) to aggregate information from both inside and outside the Court's temporal and territorial jurisdiction at the preliminary examination and investigation stages to reach the gravity threshold in order to prosecute high-ranking officials for crimes that otherwise satisfy the jurisdictional limitations within the Statute. This contextual approach should be taken when two factors exist: (1) the information relates to attacks in the midst of the same conflict, at least some of which occur within the Court's temporal or territorial jurisdiction; and (2) considering acts of violence that fall squarely within the Court's temporal and territorial jurisdiction would fail to meet the gravity threshold on their own.

Increasingly, conflicts involving non-state actors are permeating across borders and encompassing attacks committed on the territories of both state and non-state parties. For instance, the Islamic State of Iraq and Syria (ISIS) has launched attacks in Iraq and Syria (2) (non-state parties) as well as in France (3) and Belgium (4) (state parties). In the face of pressure to assert jurisdiction, the ICC prosecutor issued a statement on April 8, 2015 concluding that since the majority of ISIS's attacks took place on non-state party territories and its leadership consists of non-state party nationals, the organization falls outside the Court's territorial and nationality jurisdiction. (5) Similarly, in its application to the Pre-Trial Chamber to request the prosecutor to reconsider her decision to not investigate potential ICC crimes committed on ships registered in state parties and part of a humanitarian flotilla heading for Gaza, the Union of Comoros argued that attacks in the Gazan territory in 2008-2009 during Operation Cast Lead must be considered in conjunction with the attack on the flotilla when considering the gravity threshold. (6) Considering only the attack aboard the flotilla, which resulted in nine deaths, likely would not have reached the gravity threshold in the Situation in Comoros. The Pre-Trial Chamber ultimately decided to request the prosecutor to reconsider the decision to not investigate, albeit not as a result of Comoros's contextual argument. (7) Both of these situations might come within the preliminary jurisdiction of the Court were the Court to adopt a broader contextual approach to evaluating gravity.

TRADITIONAL ICC JURISDICTION

The Statute defines the Court's jurisdiction. Temporally, the Court's jurisdiction applies after the Statute came into force on July 1, 2002. (8) Under nationality jurisdiction, the Court is limited to prosecuting nationals of state parties, unless an Article 12(3) declaration has been submitted. Territorial jurisdiction extends to crimes committed on the territory of a state party, irrespective of the offender's nationality. (9) Territorial jurisdiction also applies for United Nation Security Council (UNSC) referrals. (10) Subject matter jurisdiction, largely adopted from the Nuremberg and Tokyo tribunals post-World War II, covers genocide, crimes against humanity, war crimes and, as of 2017, crimes of aggression.

The Statute distinguishes between jurisdiction and admissibility. Whereas jurisdiction is a threshold determination, a matter can be inadmissible under Article 17 if it is being investigated or prosecuted in a domestic jurisdiction or, otherwise, does not reach the Court's gravity threshold. (11) Similarly, under Article 53, the prosecutor can decide to not initiate an investigation taking into account Article 17 factors or determining that an investigation would not be in the interests of justice because it does not reach the gravity threshold. The argument herein advocates for expanding only temporal and territorial jurisdiction where relevant and probative information can be considered from both inside and outside the Court's statutory jurisdiction within the same conflict, but only during the preliminary examination and investigative phases when gravity is at issue. No indictment would issue for acts that do not satisfy all elements of the Court's jurisdiction.

CONTEXT AT THE ICC

Allowing the OTP and Pre-Trial Chamber to consider relevant and probative information outside territorial and temporal jurisdictional boundaries to bolster their gravity determination would allow the OTP to prosecute non-state party nationals who reside and lead organizations from the territory of non-state parties, as long as at least one or more attacks by that organization have taken place within the Court's temporal or territorial jurisdiction. I term this concept Context, which can be illustrated as follows:

Context (in relation to a particular conflict)

=

Relevant and probative information concerning acts of violence committed inside and outside the geographical boundaries of a state party

+

Relevant and probative information concerning acts of violence committed prior to and after the ratification of the Rome Statute

Applying Context when considering gravity is warranted for three reasons: (1) the prevalence of cross-border conflicts in which not all states have ratified the Statute may result in a truncated approach to considering jurisdiction if only attacks on state party territories are considered; (2) armed conflicts increasingly involve non-state actors, such as ISIS or Boko Haram, that do not adhere to traditional laws of war; and (3) technological advancements have dissipated traditional jurisdictional boundaries; for instance, Distributed Denial of Service attacks or exploding land mines planted years before they detonate can, respectively, take place simultaneously in multiple territories or over a prolonged period of time.

Taking this wider Context into account is not unprecedented in international criminal law. Indeed, the ICC has previously applied versions of what I refer to as Context in its jurisprudence. In its decision to issue an arrest warrant in the Situation in Libya, the Pre-Trial Chamber relied upon a January 2011 speech by then-Libyan president Muammar Gaddafi condemning the Tunisian uprisings and expressing his intent to suppress any demonstrations in his country. (12) Even though the speech fell outside the UNSC referral's temporal scope, it was used to establish the organizational policy required to prove the commission of crimes against humanity.

In Nahimana, the International Criminal Tribunal for Rwanda (ICTR) deemed extratemporal evidence admissible if it: (1) aimed at clarifying a given context; (2) established, by inference, the elements of criminal conduct occurring with statutory temporal jurisdiction; or (3) demonstrated a deliberate pattern of conduct. (13) The ICTR Appeals Chamber used Nahimana's 1993 radio broadcasts not to establish the actus reus of genocide, but rather to establish the contextual animus to commit genocide.

At the Special Court for Sierra Leone (SCSL) in Taylor, the Trial Chamber adopted the Nahimana Appeals Judgment factors to admit extratemporal evidence to establish the existence of a continuing crime. While these decisions relate to evidentiary admissibility as opposed to whether the Court has proper jurisdiction, they nonetheless illustrate that the focus should be on the relevance and probity of information or evidence rather than whether it falls within one of the traditional notions of jurisdiction.

JUSTIFYING JURISDICTIONAL EXPANSIVENESS

I opine the Statute already includes one procedural and one textual basis for considering extra-jurisdictional information at the preliminary...

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