The ICC has been very visibly active in the past week on a variety of issues. Each one could warrant a separate post, but for lack of time, I thought I’d share some random thoughts in one post.
The first issue is the request for cooperation put to the Central African Republic last week in light of the planned visit of Omar Bashir to the country. I’ve blogged before on the question of whether States have an automatic obligation under the Statute to give effect to an arrest warrant. I believe that they don’t, and that there should be a specific additional request to give rise to such an obligation. In the comments to that post I also wondered whether the general request for cooperation to all State parties was in fact in conformity with the Statute:
I’d still have one question on the use of article 89 by the Court in this wholesale way. 89(1) mentions a possibility to issue a request to “any State on the territory of which that person may be found”, rather than just “any State”. If the second part of the sentence is to have any legal meaning, it can’t just be all the countries in the world preemptively… Shouldn’t there be some reasonable indication of the presence of the accused on the territory of a State as a condition of the issuance of the request?
This applies, in my opinion, to the specific request put to CAR. Indeed, I find that the decision is unclear as to what the exact legal basis for the request is. It refers to articles 86, 89 and 97, without specifying what specific provision it relies on to request cooperation from a State on whose territory a person might travel. But I suppose I’m just being picky here…
The second issue relates to the annoucement from the OTP that they have opened a preliminary investigation into North Korea. As reported by Xavier over at International Jurist, Professor Schabas, and Kevin John Heller, this raises interesting questions both politically and legally. I would tend to agree with KJH that it seems like a very premature announcement, in light of how recent the events are. I also doubt that the gravity threshold would be met. In terms of PR, it also marks a recent trend by the OTP in communicating much more on his work compared to a few years ago. Indeed, it took some years before the public was made aware of the scope of preliminary investigations, and we only saw two letters (Irak and Venezuela) where the OTP actually explained how he conducted his work in this very grey area of the proceedings.
The last issue relates to Ivory Coast. Deputy-Prosecutor Bensouda asked “political leaders to call on their supporters and fellow citizens to show restraint and avoid unrest”. I find this statement ironic in its underlying assumption that the ICC can foster peace, given that Ivory Coast made a declaration under 12(3), recognising the Court’s jurisdiction in April 2003, following the very serious unrest that took place at the end of 2002, without the OTP doing anything (visible). I’m also not entirely convinced that, as a judicial body, it is the ICC’s role, and more particularly the OTP’s one, to make such warnings. But I suppose the proponents of “positive complementarity” would disagree with me…
A point of interest is that the communication by Bensouda assumes that the 12(3) declaration still stands today. It certainly seems the case when you read it (in French), because it does say that it is for an “open-ended period”. But I find the langage used ambiguous because it refers to the events of september 2002, rather than any crime committed on the territory from that date. But I suppose the interpretation can go both ways and that Ivory Coast should have done a better job on the drafting if it wanted to avoid any ambiguity.
A couple of concluding points on the general impression that transpires from the three issues I considered briefly. I have the impression that the ICC is in a PR frenzy where it might be biting off more that it can chew. The Court is already struggling to conclude its first trial and has only just started its second one [UPDATE: as pointed out by a careful reader, Bemba is actually the 3rd trial, not the second. I forgot about Katanga and Chui.]. With the institution failing in its judicial function, one has to wonder whether it is wise for it to multiply its interventions in the political area (Ivory Coast) and into bordeline cases such as the North Korean one. Maybe I am not ambitious enough for the Court, but I believe that it should be more cautious at this (still) early stage of its existence.
I'm tempted to agree with your conclusion, although I think the word "failing" is a little harsh.For the record, and this is not to be pedantic, the Court has just started its 3rd trial, not 2nd. The 2nd one is the Katanga & Ngudjolo Chui Trial, which never gets media coverage, probably because it's running quite well.
Thanks for the correction on the number of trials! It's true that we don't hear much about Katanga and Chui…And "failing" is indeed probably too harsh, but by certain fair trial standards, it's extremely disappointing that the ICC hasn't learnt from the ad hoc experiences…
I couldn't agree more. The ICC's greatest starting failure is its apparent refusal to learn from the "best practices" developed at the ad hoc tribunals.And you really should come see the Katanga & Ngudjolo Chui Trial. Presiding Judge is Judge Cotte, who is truly excellent, and it's surprising how "serene" and smooth the proceedings are going forward.