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Complaints to the International Criminal Court

The International Criminal Court's founding treaty, the Rome Statute, provides that individuals or organizations may submit information on crimes within the jurisdiction of the Court. These submissions are referred to as "communications" or complaints to the International Criminal Court.

As of 4 October 2007, the Office of the Prosecutor had received 2889 communications about alleged crimes in at least 139 countries. After initial review, however, the vast majority of these communications were dismissed as “manifestly outside the jurisdiction of the Court”. As of August 2008, the ICC has launched investigations into just four situations: Northern Uganda, the Democratic Republic of the Congo, the Central African Republic and Darfur (Sudan). Several other situations have been subject to "intensive analysis", including Afghanistan, Chad, Colombia, Côte d'Ivoire, Georgia and Kenya.

Some of the communications received by the Prosecutor alleged that crimes had been committed on the territory of states parties to the Court, or by nationals of states parties: in such cases, the Court may automatically exercise jurisdiction. Other communications concerned conduct outside the jurisdiction of states parties: in these cases, the Court can only act if it has received a referral by the United Nations Security Council or a declaration by the relevant state allowing the Court to exercise jurisdiction.

Communications from individuals and organisations should not be confused with referrals from states parties or the United Nations Security Council.

Procedure

The court's founding treaty, the Rome Statute, provides that individuals or organizations may submit to the Prosecutor information on crimes within the jurisdiction of the Court. These submissions are referred to as "communications". Before an investigation is opened, each communication is subject to three levels of analysis: initial review, basic reporting and intensive analysis.

Initial review

Every time a complaint is received, the Prosecutor must "analyse the seriousness of the information received" and decide whether there is a reasonable basis to open an investigation. The process begins with an initial review, during which the vast majority of the communications received are dismissed as "manifestly outside the jurisdiction of the Court". Of the communications received before 1 February 2006, 80% were dismissed for the following reasons:

  • 5% concerned events prior to 1 July 2002. The court can only investigate crimes committed on or after that date.
  • 24% concerned allegations "manifestly outside the subject-matter jurisdiction of the Court". The court can only prosecute three types of crime: genocide, crimes against humanity, and war crimes. Communications have been received about such topics as immigration issues, medical negligence, social security and pension complaints, and employment law. The court has also received complaints about the crime of aggression, over which the court cannot currently exercise jurisdiction.
  • 13% concerned crimes that were "manifestly outside the personal or territorial jurisdiction of the Court". The Court can generally only prosecute crimes committed on the territory of, or by nationals of, states parties, and crimes referred by the United Nations Security Council.
  • 38% of communications were "manifestly ill-founded because they faltered on multiple jurisdictional grounds or otherwise did not provide a basis for analysis. Examples include general conspiracy claims without specific details; general concerns about local or national politics; or communications failing to provide facts susceptible to analysis."

Analysis and investigation

Once it has been determined that a communication is not manifestly outside the court's jurisdiction, the situation is subject to "basic reporting". This involves "simple factual and legal analysis, drawing on communications, referrals, and readily available public information". As of February 2006, 23 situations had been subject to basic reporting.

Where warranted, a situation may then be subject to "intensive analysis". This involves collecting detailed information from open sources; conducting systematic crime analysis; examining factors such as gravity, complementarity and the interests of justice; seeking additional information; and, in advanced cases, planning for potential investigation. As of February 2006, 10 situations had been subject to intensive analysis; as of August 2008, the situations under analysis included Afghanistan, Chad, Colombia, Côte d'Ivoire, Georgia and Kenya.

In deciding whether to open a formal investigation, the Prosecutor must consider four factors:

  • whether there is a reasonable basis to believe that a crime within the jurisdiction of the Court has been committed;
  • the gravity of the crimes;
  • complementarity with national proceedings; and
  • interests of justice.

Complaints received

As of 4 October 2007, the Office of the Prosecutor had received 2889 communications about alleged crimes in at least 139 countries. Communications were received from individuals or groups in at least 103 different countries but, as of 1 February 2006, 60% of the communications originated in just four countries: the United States, the United Kingdom, France and Germany.

The situations listed below have been cited in the media as where complaints have been submitted to the court.

Complaints concerning states parties

As of August 2008, 106 countries are states parties to the Court. The court may automatically exercise jurisdiction over crimes that are committed in the territory of states parties or by nationals of states parties. The following complaints have been received in this category:

Afghanistan

Amnesty International and Human Rights Watch have both accused the Taliban of deliberately targeting civilians in Afganistan, including teachers and aid workers. Allegations have also been made of torture and prisoner abuse at the United States army base at Bagram Air Base and by Afghan government ministers who were former warlords. In April 2008 the prosecutor confirmed he was undertaking an analysis of the situation there.

Burundi

In February 2005 the United Nations Secretary General said that three parties to the civil war in Burundi (a state party of the court) were using child soldiers or committing war crimes against children:

The Chief Prosecutor has not announced whether he will formally decided to open an investigation into this matter.

Colombia

In February 2005 the United Nations Secretary General said that three parties to the civil war in Colombia (a state party of the court, but which has temporarily opted out of war crimes jurisdiction, for up to seven years) were using child soldiers or committing war crimes against children:

In April 2006 the UN High Commissioner for Human Rights office in Colombia said that FARC's attacks on civilians were war crimes within the jurisdiction of the ICC.

FIDH has called on the court to investigate the AUC for crimes against humanity.

During the 2008 South American diplomatic crisis, the Colombian President Alvaro Uribe called on the court to prosecute Venezualan President Hugo Chavez for financing FARC's "genocidal" actions.

The Prosecutor has confirmed that the situation in Colombia is under analysis.

Gambia

The Commonwealth Human Rights Initiative stated in September 2007 that they would make a complaint to the court concerning 44 Ghanaians who were allegedly executed in 2005 on the orders of the President of the Gambia, Yahya Jammeh after being accused of planning a coup against him.

Georgia

A complaint has been received alleging that ethnic cleansing has been carried out by the Abkhazian government (legally part of Georgia, a state party of the court) against ethnic Georgians. The Georgian state Minister for Conflict Resolution agreed that "human rights violations as well as crimes against humanity committed during the Georgian-Abkhaz conflict are difficult to dispute". The court has stated in a letter to the complainant that an investigation committee started looking into the case in 2004 and requesting further information. However a formal investigation has not yet been opened. The court only has jurisdiction over events that have taken place since its founding in 2002.

Iraq

In March 2003, the United States and its allies, the United Kingdom, Australia and Poland invaded Iraq. The UK, Australia and Poland are all states parties to the ICC Statute and therefore their nationals are liable to prosecution by the court for any relevant crimes. As the United States is not a state party, American citizens can only be prosecuted by the court if the crime takes place in the territory of another state party (e.g. Jordan), or if the situation is referred to it by the Security Council.

The Office of the Prosecutor of the International Criminal Court reported in February 2006, that it had received 240 communications in connection with the invasion of Iraq in March 2003 which alleged that various war crimes had been committed. Many of these complaints concerned the British participation in the invasion, as well as the alleged responsibility for torture deaths whilst in detention in British-controlled areas.

On 9 February 2006, Luis Moreno-Ocampo, Chief Prosecutor of the International Criminal Court, published a letter that he had sent to all those who had communicated with him concerning the above, which set out his conclusions on these matters, following a preliminary investigation of the complaints. He explained in his decision letter, that essentially two sets of complaints were involved.

  1. Complaints concerning the legality of the invasion itself;
  2. Complaints concerning the conduct of hostilities between March and May 2003, which included allegations in respect of
    1. the targeting of civilians or clearly excessive attacks;
    2. willful killing or inhuman treatment of civilians.

The Prosecutor's conclusions were as follows:

  1. He did not have authority to consider the complaint about the legality of the invasion. Although the ICC Statute includes the crime of "aggression", it indicates that the Court may not exercise jurisdiction over the crime until a provision has been adopted which defines the crime and sets out the conditions under which the Court may exercise jurisdiction with respect to it.
  2. The available information did not provide sufficient evidence for proceeding with an investigation of the complaints in connection with targeting of civilians or clearly excessive attacks.
  3. The available information did provide a reasonable basis for believing that there had been an estimated 4 to 12 victims of willful killing and a limited number of victims of inhuman treatment, totaling in all less than 20 persons. However this on its own was not sufficient for the initiation of an investigation by the ICC because the Statute requires consideration of admissibility before the Court, in light of the gravity of the crimes. Bearing in mind that a key consideration in this regard is the number of victims of particularly serious crimes, he concluded that the situation did not appear to meet the "gravity" threshold.

On 7 July the defense lawyers for Saddam Hussein wrote to the court, saying that the treatment of Hussein was a breach of the Geneva Conventions and hence a war crime.

Italy

A complaint has been submitted to the court accusing the government of Italy of crimes against humanity in connection to the expulsion of Romani immigrants in Rome in October 2007.

Kenya

Following the disputed Kenyan presidential election of 2007, hundreds of people were killed and thousands raped and displaced. Much of the violence was on tribal lines. A spokesman for President of Kenya Mwai Kibaki complained of "ethnic cleansing", whilst the opposition leader, Raila Odinga accused the government of being "guilty, directly, of genocide." In April 2008 the prosecutor confirmed he was analysing the situation, had requested information from the Kenyan authorities and had held discussions with UN mediator Kofi Annan.

South Africa

Lawyers representing Khalid Rashid have made a complaint to the court regarding his arrest in South Africa and alleged extraordinary rendition. The court refused his lawyer's request for assistance in finding Rashid, saying his case was outside the jurisdiction of the court.

Venezuela

On April 11 2002 clashes between supporters and opponents of Presıdent Hugo Chávez during an attempted coup lead to complaınts that Chávez committed crimes against humanity. In February 2006, the court Prosecutor, concluded that, thus far, there was no evidence of a widespread or systematic attack against any civilian population and hence the court could not continue the investigation.

Complaints not concerning states parties

The following complaints relate to crimes that are not alleged to have been committed in the territory of a state party or by a national of a state party. In these cases, the Court can only exercise jurisdiction if:

  • the situation is referred to the Prosecutor by the UN Security Council acting under Chapter VII of the Charter of the United Nations; or
  • the state on whose territory the crime is alleged to have occurred, or the state whose national is accused of the crime, declares that it accepts the Court's jurisdiction with respect to the crime in question

To date, the Security Council has only referred one situation (Darfur) to the Court, and only one non-state party (Cote d'Ivoire) has declared that it accepts the Court's jurisdiction.

Algeria

The Algerian Minister of National Solidarity Djamel Ould-Abbes in December 2007 said the government would file a complaint against Al-Jazeera at the court, saying they were spokesmen for the Al-Qaeda Organization in the Islamic Maghreb and complicit in the 11 December 2007 Algiers bombings. However, some of the victims' families said the minister was using Al-Jazeera as a way of avoiding the issue of amnesties.

Bhutan

Nepali-speaking refugees from Bhutan have accused the Bhutanese government of "rape, torture and ethnic cleansing" in respect of the expulsion of Nepalese from Bhutan, and have said they will file a complaint with the court.

Cote d'Ivoire

On 15 February 2005, the Court confirmed that Cote d'Ivoire, which is not a state party, had made a declaration in accordance with Article 12, paragraph 3 of the Rome Statute, accepting “the exercise of jurisdiction by the International Criminal Court with respect to crimes committed on its territory since the events of 19 September 2002”.

In May 2006 Human Rights Watch called on the court to send a mission to the country in order to bring an end to a culture of impunity. It cited continuing human rights abuses against civilians by state security forces, militia and the New Forces rebels.

People accused of human rights abuses who could be tried include Simone Gbagbo, wife of President Laurent Gbagbo and Guillaume Soro the head of the New Forces rebel army.

In October 2006 a United Nations report recommended that politicians obstructing the peace process should face trial at the ICC.

In November 2006 the Prosecutor confirmed that the situation in Cote d'Ivoire was under analysis.

Iran

The Israeli newspaper, Haaretz, reported that the European Jewish Congress is to file a complaint with the ICC against Iranian President, Mahmoud Ahmadinejad, alleging his call for Israel to be "wiped from the map" amounted to incitement to genocide.

Israel

In November 2006, the government of Yemen called on the UN Security Council to refer Israel to the court to "to look into barbarian crimes and inhuman acts committed by Israeli forces in Beit Hanoun and Jeneen of Gaza." This was in connection with Operation Summer Rains. Amnesty International has also characterized the allegedly deliberate attacks by Israeli forces against civilian property and infrastructure in the Gaza Strip as "war crimes". Iran and Yemen also called for the court to prosecute Israeli leaders for "war crimes" committed during the 2008 Israel-Gaza conflict.

However a referral is considered unlikely as it would require UN Security Council approval and this is likely be opposed by the United States.

The Israeli emergency service, Zaka and the Sderot Municipal Authority meanwhile called on the court to investigate Hamas leader Khaled Mashaal for crimes against humanity by the shelling of Sderot by rockets fired from Gaza in 2007.

Lebanon

The Lebanese Foreign Minister, Fawzi Salloukh, has called for Israelis to be prosecuted at the court in connections with the 2006 Israel-Lebanon conflict. He accused Israelis of committing a war crime with the bombing of Qana., and this was repeated by the Interior Minister, Ahmad Fatfat on 2 August who said "a file was being prepared". On 3 August Justice Minister Charles Rizk said that he would be submitting a file to the Security Council asking them to create a special court, similar to the Rwanda Tribunal, as neither Lebanon nor Israel are members of the ICC. On 2 September Rizk formed a committee of legal and media personnel to gather evidence of war crimes for possible submission to the court. Individuals have also made official complaints to the court prosecutor.

In July Jean Ziegler, the United Nations Special Rapporteur on the Right to Food, called for an investigation into whether Israel committed war crimes by attacking supplies of food and water. Israel has admitted using white phosphorus during the war, a chemical weapon which is banned by the Geneva Conventions when used against civilians or in civilian areas, but allowed when used for illumination. Doctors in southern Lebanon said they suspected burns victims had been caused by white phosphorus.

Meanwhile a human rights lawyer in the United Kingdom - a member of the court - is taking legal action under the International Criminal Court Act, accusing British government officials of complicity in Israeli war crimes by allowing the transfer of weapons from the United States via UK airports.

Another British law firm has suggested that Israeli use of cluster bombs would also be a war crime.

On September 14 2006, Amnesty International released a report accusing Hezbollah of war crimes during the 2006 conflict with Israel.

Myanmar

The European Parliament called in May 2008 for leaders of the Myanmar State Peace and Development Council to be referred to the court for crimes against humanity, for blocking relief aid following Cyclone Nargis. This call has been echoed by the government of Australia, a shadow minister from the United Kingdom and a parliamentarian from the governing party in France.

Somalia

In May 2006 a Somali warlord, Musa Sudi Yalahow was reported to have ordered his militiamen to take over Keysaney Hospital in northern Mogadishu, a move that may contravene the laws against war crimes. A Somali NGO, the Somali Justice Advocacy office wrote to the court requesting that it investigate this as a war crime.

Somalia is not a party to the court, and therefore would have to consent or be referred by the UN Security Council in order for the court to have jurisdiction.

In June 2006 the regional body IGAD threatened to do this to warlords it termed "spoilers".

In April 2007, an observer in Somalia from the European Union claimed that soldiers from Ethiopia and Somalia's Transitional Federal Government had targeted Somali civilians as part of the ongoing War in Somalia, and that Ugandan peacekeepers from the African Union Mission to Somalia had stood by while this happened. Although neither Somalia nor Ethiopia are court members, Uganda and three other AMISOM troop-contributors are, and could be charged with complicity in the war crime.

In November 2007 the UN Secretary-General's special envoy to Somalia, Ahmedou Ould-Abdallah, called for the court to prosecute war crimes suspects.

Sri Lanka

In July 2006 a Sri Lankan American expatriate organisation, the Sri Lankan Patriots, called on the Tamil Tigers to be prosecuted for using child soldiers. Tamils have also called for government members to be prosecuted before the court for an attack on a girls' school in LTTE-controlled territory in August 2006.

Sri Lanka is not a party to the court, and therefore would have to consent or be referred by the UN Security Council in order for the court to have jurisdiction.

Thailand

Former Senator Kraisak Choonhavan called in November 2006 for former premier Thaksin Shinawatra to be investigated for crimes against humanity connected to 2,500 alleged extra-judicial killings carried out in 2003 against suspected drug dealers. This would first require Thailand to ratify the court and to accept retrospective jurisdiction. In response, the Justice Minister, Charnchai Likhitjitta, said that ratification had been discussed by the cabinet but needed "careful deliberation" as any decision would affect all Thais.

Zimbabwe

Since 2005, various calls have been made for the situation in Zimbabwe to be referred to the court by the Security Council, including:

A Zimbabwe government spokesman described the calls as spurious and "an attempt to tarnish the image of the president and country".

Notes and references

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