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BREAKING: ICC supports Afghanistan investigation

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BREAKING: ICC supports Afghanistan investigation

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https://www.theguardian.com/law/2020/mar/05/senior-icc-judges-authorise-afghanistan-war-crimes-inquiry

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ICC-CPI-20200305-PR1516

Today, 5 March 2020, the Appeals Chamber of the International Criminal Court ('ICC' or 'Court') decided unanimously to authorise the Prosecutor to commence an investigation into alleged crimes under the jurisdiction of the Court in relation to the situation in the Islamic Republic of Afghanistan. The Appeals Chamber's judgment amended the decision of Pre-Trial Chamber II of 12 April 2019, which had rejected the Prosecutor's request for authorisation of an investigation of 20 November 2017 and had found that the commencement of an investigation would not be in the interests of justice. The Prosecutor had filed an appeal against that decision. Judge Piotr Hofmański, the presiding judge in this appeal, read a summary of the Appeals Chamber's judgment in open court.

Having considered the Prosecutor's grounds of appeal against the Pre-Trial Chamber's decision, as well as the observations and submissions of the Islamic Republic of Afghanistan, representatives of victims and other participants, the Appeals Chamber found that the Pre-Trial Chamber erred in considering the 'interests of justice factor' when examining the Prosecutor's request for authorisation to open an investigation. In the Appeals Chamber's view, the Pre-Trial Chamber should have addressed only whether there was a reasonable factual basis for the Prosecutor to proceed with an investigation, in the sense of whether crimes have been committed, and whether the potential case(s) arising from such investigation would appear to fall within the Court's jurisdiction. Noting that the Pre-Trial Chamber's decision contained all the necessary factual findings and had confirmed that there is a reasonable basis to consider that crimes within the ICC jurisdiction have been committed in Afghanistan, the Appeals Chamber decided to authorise the opening of an investigation itself, rather than to send the matter back to the Pre-Trial Chamber for a new decision.

The Appeals Chamber found that the Prosecutor is authorised to investigate, within the parameters identified in the Prosecutor's request of 20 November 2017, the crimes alleged to have been committed on the territory of Afghanistan since 1 May 2003, as well as other alleged crimes that have a nexus to the armed conflict in Afghanistan and are sufficiently linked to the situation in Afghanistan and were committed on the territory of other States Parties to the Rome Statute since 1 July 2002.

Judge Ibáñez Carranza filed a separate opinion on the interpretation of article 15 and its relationship with article 53 of the Rome Statute.

Judgment on the appeal against the decision on the authorisation of an investigation into the situation in the Islamic Republic of Afghanistan

Separate opinion of Judge Luz del Carmen Ibáñez Carranza

Audio-visual materials:

For more information, see: https://www.icc-cpi.int/afghanistan

For further information, please contact Fadi El Abdallah, Spokesperson and Head of Public Affairs Unit, International Criminal Court, by telephone at: +31 (0)70 515-9152 or +31 (0)6 46448938 or by e-mail at: [email protected]

You can also follow the Court's activities on Twitter, Facebook, Tumblr, YouTube, Instagram and Flickr

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Afghanistan: ICC Appeals Chamber authorises the opening of an investigation

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Today, 5 March 2020, the Appeals Chamber of the International Criminal Court ('ICC' or 'Court') decided unanimously to authorise the Prosecutor to commence an investigation into alleged crimes under the jurisdiction of the Court in relation to the situation in the Islamic Republic of Afghanistan.

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ICJ imposes provisional measures in Myanmar Genocide Case 

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ICJ imposes provisional measures in Myanmar Genocide Case 

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Today the International Court unanimously issued its provisional measures order in the case brought by The Gambia against Myanmar under the Genocide Convention. The order is available here, the three separate opinions here. For our previous coverage of the case, see here. The fact that the Court ordered provisional measures and did so unanimously is obviously a win for The Gambia, and for the Rohingya cause more generally, but its impact should not be overstated. A couple of quick noteworthy points:

(1) The Court adopts a rather flexible approach to the issue of plausibility, and relies mainly on the reports of UN fact-finding commission to support the issuance of provisional measures (on the fact-finding commission reports see in particular Mike Becker's earlier post). The Court specifically rejects Myanmar's argument that a more rigorous standard of proof should be required at the provisional measures stage of a genocide claim (para. 56). However that doesn't mean at all that Gambia will succeed on the merits (it likely won't, as I'll explain below).

(2) The Court indicated all but two of the provisional measures that Gambia had requested, but it's interesting how exactly it did so.

(3) First, the principal measures it indicated, at para. 86 (1) and (2), effectively replicate state obligations under the Genocide Convention, i.e. they do not strictly legally speaking add anything new to the corpus of obligations that Myanmar already has. Second, in indicating these measures the Court omitted the references to more specific acts (e.g. rape or the burning of villages) from Gambia's request (compare at para. 5) - basically the Court didn't want to give the impression that any of such specific acts were proven, and the final language is more palatable and diplomatic.

Third, the Court specifically ordered Myanmar (para. 86(3)) to 'take effective measures to prevent the destruction and ensure the preservation of evidence,' but again it avoided the more explicit and specific language from Gambia's request. Fourth, the Court rather laconically rejected Gambia's (late) request for a specific measure requiring Myanmar to provide access to UN investigators, saying simply (para. 62) that it 'does not consider that its indication is necessary in the circumstances of the case.' This is hardly a surprising result, bearing in mind sovereignty concerns and the intrusiveness of such a measure, but the paucity of the reasoning is difficult to justify. Fifth, the Court (rather surprisingly) decided not to indicate the general, innocuous non-aggravation measure, saying that it was unnecessary due to the specific measures that it did indicate (para. 83). Finally, the Court ordered Myanmar to provide it with periodic reports on its implementation of the measures indicated - this has the potential for some bite, but obviously it remains to be seen with what rigour the Court and the parties will observe this requirement.

(4) Bearing in mind how it handled the prima facie jurisdiction analysis in this order, it seems extremely unlikely that the Court will dismiss this case at the jurisdictional stage. I see no reasonable way in which Myanmar could win on jurisdiction, but its contestation of jurisdiction will of course prolong the Court's examination of the case.

(5) That said, the most likely outcome of the merits stage is still that Myanmar will win, i.e. that Gambia will not be able to provide clear and convincing evidence that genocide (as opposed to crimes against humanity or war crimes) were committed against the Rohingya - basically the same outcome as in the Bosnian and the Croatian genocide cases. The evidentiary requirements were set so high in those cases (in my view rightly so), that they could not be met even with the existence of a fully-fledged international criminal tribunal that could reliably establish the facts. The Court will not have the luxury of the ICTY's assistance in this case, and once counsel for Myanmar start probing the specific evidence behind the UN fact-finding reports bit by little bit it seems probable that they'll raise sufficient doubt as to the existence of genocidal intent. But this outcome, even though in my view highly likely, is still many years down the line.

New episode is now live.

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ICJ Indicates Provisional Measures in the Myanmar Genocide Case

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Today the International Court unanimously issued its provisional measures order in the case brought by The Gambia against Myanmar under the Genocide Convention. The order is available here, the three separate opinions here. For our previous coverage of the case, see here.

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Will Genocide charges Stick? Al Bashir at the ICC

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Will Genocide charges Stick? Al Bashir at the ICC

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https://www.bbc.com/news/51489802

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Australia's offshore detention and the ICC

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Australia's offshore detention and the ICC

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https://www.theguardian.com/australia-news/2020/feb/15/australias-offshore-detention-is-unlawful-says-international-criminal-court-prosecutor?CMP=Share_iOSApp_Other

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Is it finally going to happen: Al Bashir at the ICC?

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Is it finally going to happen: Al Bashir at the ICC?

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https://www.bbc.co.uk/news/world-africa-51462613

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https://www.icc-cpi.int/Pages/item.aspx?name=20191220-otp-statement-palestine

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ICC opens Preliminary Investigation into Myanmar Atrocities against Rohingya

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ICC opens Preliminary Investigation into Myanmar Atrocities against Rohingya

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https://www.icc-cpi.int/Pages/item.aspx?name=pr1495

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Hearings begin on Rohingya genocide case at International Court of Justice

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Hearings begin on Rohingya genocide case at International Court of Justice

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https://www.hrw.org/news/2019/12/10/myanmar-hearings-begin-genocide-case

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Made in Europe, Bombed in Yemen - ICC must investigate European countries and their arms industry

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Made in Europe, Bombed in Yemen - ICC must investigate European countries and their arms industry

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https://www.ecchr.eu/en/case/made-in-europe-bombed-in-yemen/

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Can Syria's Assad be tried by the ICC? British lawyers say he can be.

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Can Syria's Assad be tried by the ICC? British lawyers say he can be.

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https://www.theguardian.com/law/2019/mar/07/syrian-refugees-launch-legal-bid-to-try-assad-for-crimes-against-humanity

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Syrian war crimes investigated in Europe

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Syrian war crimes investigated in Europe

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https://www.pbs.org/wgbh/frontline/article/how-syrian-war-crimes-are-being-investigated-in-europe/

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Rwandan convicted for Genocide in Belgian Jury Trial

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Rwandan convicted for Genocide in Belgian Jury Trial

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https://www.justiceinfo.net/en/tribunals/national-tribunals/43372-fabien-neretse-found-guilty-genocide.html