Mahan_HonorsThesis_2020.docx

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By Isabella Mahan

Senior Honors Thesis

Department of Political Science

The University of North Carolina at Chapel Hill

April 3, 2020

Approved:

Dr. Robert Jenkins, Thesis Advisor

Dr. Joseph Ross, Reader

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unwavering support, encouragement, and advice. Additional thanks to my committee members,

Dr. Joseph Ross and Dr. Matthew Weidenfeld, and to the incredible department of political

science as a whole. Further, I want to thank Dr. Jonathan Hartlyn for his support from the

beginning of my thesis, and the other political science honors students of the class of 2020 for the

joy brought to the pursuit of research. To complete this thesis was an honor and privilege not

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Acronyms

APIC— Agreement on the Privileges and Immunities of the International Criminal Court

ASP— Assembly of State Parties

ASPA— American Servicemembers’ Protection Act

CAR— Central African Republic

CJAD— The Cooperation and Judicial Assistance Database

CSO— Civil Society Organization

DRC— the Democratic Republic of the Congo

ECCC— Extraordinary Chambers in the Courts of Cambodia

HRW— Human Rights Watch

ICC— International Criminal Court

ICTR— International Criminal Tribunal for Rwanda

ICTY— International Criminal Tribunal for the former Yugoslavia

LRA— Lord’s Resistance Army

NGO— Non-governmental Organization

OTP— Office of the Prosecutor

RSF— Rapid Support Forces

TFV— Trust Fund for Victims

UNGA— United Nations General Assembly

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I. Introduction

“We were told to do whatever we wanted to these women, that the women belonged to us. I saw other soldiers rape eleven women. Personally, I did attempt to rape one of the women, and she hit me. And I lost my temper, and I shot her… she is dead. I am deeply sorry. But you must understand that this was not my endeavor. I was under the command of men with no mercy."1

At seventeen the Sudanese government's Rapid Support Forces (RSF) recruited

Ibrahim (not his real name). His story mirrors that of thousands of other child soldiers,

where these "men with no mercy" commanded young boys and men to commit atrocities

against their people. Crimes including the forced participation of child soldiers led to the

International Criminal Court’s 2005 opening of an investigation to address the alleged

crimes against humanity, genocide, and war crimes committed in Darfur.2 Following the

Office of the Prosecutor (OTP) investigation, five cases were opened, one of which was

against the President since 1993, Omar Hassan Ahmad Al Bashir. When creating the

convention which established the ICC, the United Nations (UN) stated intentions to

achieve peace for all, to end impunity, to end conflicts, and deter future war criminals.3

However, despite these goals and their applicability following the horrific violence seen

throughout the Darfur region of Sudan, as of 2019, not a single case has moved into trial,

and three defendants remain at large, including the former president. The situation in

Sudan remains prominent for both opponents and supporters of the Court. Opponents

claim the failed apprehension of defendants showcases the stagnation, and therefore, the

1 Amy Braunschweiger, “Witness: A Child Soldier’s Darfur Confession – ‘I Shot Her. She Is Dead.’” Human Rights Watch, September 9, 2015. https://www.hrw.org/news/2015/09/09/witness-child-soldiers-darfur-confession-i-shot-her-she-dead.

2 International Criminal Court, “Case Information Sheet: Al Bashir,” April 2018. https://www.icc-cpi.int/CaseInformationSheets/AlBashirEng.pdf.

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ineffectiveness of the Court. Conversely, supporters use Al Bashir to display the

importance of holding heads of state accountable for the atrocities committed within their

state.4 This thesis serves to explain why cases at the ICC fail to move to trial stages by

examining what causes arrest warrants to go unfulfilled and other factors that impact trial

progression.

II. Why Cases Fail to Progress to Trial Stages

To date, nine investigations by the ICC have led to a total of 27 cases; of

these, only ten have progressed into trial stages. Through this research project, I

will identify the key factors that are blocking cases from moving into trial. In

order for the Court’s intentions to uphold human rights standards, and succeed in

bringing guilty individuals to justice legally, there must be an identification of the

flaws of the current procedure. Through surrounding research of the challenges

facing the ICC and international trials, I investigate the stagnation in pre-trial

stages. Specifically posing the question: How do the influence of external states,

the target state, victims, and witnesses prevent International Criminal Court cases

from moving to the trial stage?

This thesis explores the core factors of influence on International Criminal

Court case movement into trial based on quantitative analysis. Ultimately, referral

avenue of situations predicts case outcome as it demonstrates target state

cooperation. Factors of target state commitment to the ICC and the relationship of

defendants incentivize or discourage state’s cooperation with the Court. These

measures illustrate characteristics of referral avenues, providing a narrative of

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traits which lead to either stagnation in pre-trial or movement. Target state

influence on trial displays the ways the independent institution that is the Court

still depends on outside cooperation in order to fulfil the intentions set forth by its

creators.

III. Background

A. Intentions of the Court

From the atrocities committed by the Nazi regime to the Rwandan Genocide as

well as the ethnic conflict and cleansing in the former Yugoslavia, the twentieth century

bore witness to some of the greatest atrocities against humankind to date. However, in

reaction to these events, the global community saw the emergence of steps towards

rectification and justice. One such action was the Rome Treaty, or Statute, of 1998, which

established the International Criminal Court (ICC). This Court is to serve as a

replacement for the ad hoc tribunals, which have been one-time international courts to

serve justice on the global stage.5 Instead, the Court has sought to serve as an institution

existing for justice free of political influence and the temporality of tribunals. The Court’s

creation aimed to aid in conflict prevention, strengthen global order, and contribute "to

the humanization of our civilization."6

In their own right, the goals of the ICC aim to represent action on the normative

objectives of the international community's pursuit of the preservation of humanity.

Nevertheless, there is a much deeper significance to the Rome Statute. As M. Cherif

Bassiouni promulgated at his 1998 speech commencing the establishment of the ICC,

5 In the early 1990s, the International Criminal Tribunals for the former Yugoslavia and for Rwanda were established by the UN. See Claude E. Welch, and Ashley F. Watkins, "Extending Enforcement: The Coalition for the International Criminal Court." Human Rights Quarterly 33, no. 4 (2011): 953. www.jstor.org/stable/41345420.

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“Today’s opening of the Convention for signature marks both the end of a historical process that started after World War I as well as the beginning of a new phase in the history of international criminal justice. The establishment of the ICC symbolizes and embodies certain fundamental values and expectations shared by all peoples of the world and is, therefore, a triumph for all peoples of the world.”7

To the founders of the ICC, there is an undeniable importance of upholding

human rights standards, and those who sought the establishment believe the Court

serves precisely this purpose. The ICC seeks to pursue greater degrees of justice

for the atrocities of the past as well as guarantee stronger accountability and

prevention in the future.

B. Motivations for States

After nineteen weeks of negotiations establishing a statute to create the ICC,

there still remained over 1,400 indications of disagreement in the draft presented.8

The primary concerns of states centered on two primary issues: the scope of the

Court’s jurisdiction and how the Court would exercise its jurisdiction. Of the UN

Security Council permanent members, China, Russia, and the US were the most

vocal opponents to aspects of the Court; the concern over ICC jurisdiction over

non-international conflicts became a major point of contention for these members.

Further, these three members of the UNSC vocalized opposition to the proposed

jurisdiction of crimes of aggressive war. 9

The Rome Convention attempted to quell the concerns with the preparatory

committee’s draft and finalized the Statute. Despite measures to attempt to

7 Ceremony for the Opening for Signature of the Convention of the Establishment of an International Criminal Court, Rome, “Il Campidoligo,” 18 July 1998

8 Rachel Kerr and Erin Mobekk, Peace and Justice: Seeking Accountability After War. (Cambridge, UK: Polity Press, 2007): 59.

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counteract concerns such as adding UNSC referrals of potential crimes, only

France and the United Kingdom ratified. For other states’ concerns about

jurisdiction the principle of complementarity was established as a core tenet of the

Rome Statute. Complementarity assures that the ICC will serve as a court of last

resort, taking control of prosecution only when states are unable to do so

independently. Even with compromise and negotiation at the Convention, many

states maintain a contentious relationship with the Court. Nonetheless, the

Convention gained enough state ratification and thus the Court was created.

C. The Structure of the Court10

On July 17, 1998, after 160 states engaged in negotiations at the Rome

Convention, 120 countries voted in favor of the Treaty containing the Statute to

create the International Criminal Court.11 States then independently acted to ratify

the Statute.12 Those ratifying became State Parties to the ICC. On April 11, 2002,

the required sixtieth state ratified, allowing the entry into force of the Statute. On

July 1, 2002, the Court officially opened with jurisdiction from that date forward.

Beyond negotiating the terms of the crimes and jurisdiction of the ICC, the

Rome Statute established the structures which would operate the Court. These

include the legislative structures the Assembly of State Parties (ASP), the Trust

Fund for Victims, and four Organs—the presidency, the chambers, the Office of

the Prosecutor (OTP), and the registry. This thesis examines the operations of the

10 The section “The Structure of the Court” draws heavily on the following source unless otherwise stated. See International Criminal Court, “Understanding the International Criminal Court,” n.d. https://www.icc-cpi.int/iccdocs/PIDS/publications/UICCEng.pdf

11 Michael P. Scharf, “Results of the Rome Conference for an International Criminal Court,” American Society of International Law 3 no. 10 (1998)

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Court to see what impedes cases from moving from the pre-trial to trial chambers.

In order to explore this operation, the surrounding structures of the Court and how

they interact must further be understood.

Separate from the structures necessary for trials, the ICC possesses a body

for management, oversight, and legislation. Composed of representatives from

each State Party is the Assembly of State Parties (ASP).13 Each State Party's Head

of State or Minister of Foreign Affairs chooses their representative. The

appointment requires approval by the ICC Credential Committee. The

administrative structure of the ASP centers on a Bureau, which consists of a

President, two Vice Presidents, and 18 members elected for a three-year term by

the Assembly. When constructing the Bureau, the Assembly takes into

consideration principles of equitable geographic distribution and representation of

the world's principle legal systems. The ASP meets at least once a year to make

decisions for the Court, such as amending laws and procedures, establishing the

budget, and electing the judges, the Prosecutor, and the Deputy Prosecutor(s).

Further, the ASP is responsible for the review of the Court's activities, including

investigations and cases. Such decisions are based on one vote per State Party.

The Trust Fund for Victims (TFV) is a separate institution from the Court. It was

created by the ASP in 2004, in accordance with the Rome Statute.14 To achieve the

13 International Criminal Court. “Assembly of State Parties,” n.d. https://asp.icc-cpi.int/en_menus/asp/assembly/Pages/assembly.aspx.

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mission of supporting and implementing programs to address harms of atrocity crimes.

The TFV’s mandate is two-fold:

(1) “To implement Court-ordered reparations and

(2) To provide physical, psychological, and material support to victims and their

families.”15

The stated goals of the TFV are to contribute to realizing sustainable, lasting peace and

promote restorative justice through assisting victims in returning to a dignified and

contributory life in their communities.16

Four organs, each with a specific role and mandate, make up the ICC.

i. Presidency

The first organ possesses administrative responsibility, which falls on

three-judge who make up the Presidency (the President and two Vice-Presidents).

These three judges are elected by an absolute majority of the Court’s eighteen

judges. The Presidency's three main areas of responsibility are to serve as a

representative of the Court in the global community, help with organization and

work of the judges, and perform administrative duties. The role of the Presidency

is important to case progression as case assignment to the Chambers is at their

discretion. Further, within its role as a representative of the Court, it manages

relationships with states and navigating cooperation agreements.

ii. The Chambers

The second organ of the ICC is the Chambers, consisting of eighteen

judges, including members of the Presidency. Judges are elected by the ASP,

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which asserts that they are selected due to standards of high morality and

impartiality within the legal community. Further, the Court presents its judges as

individuals with extensive experience in a broad spectrum of law, including

criminal, international humanitarian and human rights law, and specific issues

such as violence against women and children. The ASP attempts to consider the

representation of all genders, equitable geographical representation, and principle

legal systems when conducting elections to ensure fairness and equality.17 As of

2019, five continents are represented, and six of the eighteen judges are women.

The judges are assigned to the Court’s three judicial divisions: the

Pre-Trial Division (composed of seven judges), the Pre-Trial Division (composed of six

judges), and the Appeals Division (composed of five judges). These divisions are

separated into individual chambers specific to cases or situations at varying stages

of the judicial process. Outlined below are the components present in the

chambers in accordance with the various trial stages.

a. The Pre-Trial Chamber

The Pre-Trial Chambers can be composed of one or three judges, where

they address issues that arise before the trial phase begins. The judges supervise

the OTP's investigative and prosecutorial activities to ensure the rights of

suspects, victims, and witnesses during the investigation and to guarantee the

legal soundness of the proceedings. Following an investigation, the Pre-Trial

Chamber decides whether or not to issue arrest warrants or summons to appear

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and confirm charges against persons suspected of a crime.18 In this Chamber, the

judges may also determine the admissibility of situations, cases, and victim

participation.19

The individual suspected of a crime must be present at the Court in order

for preliminary hearings to proceed. The confirmation hearing requires an official

"initial appearance" where judges confirm the suspect's identity and ensure the

suspect understands the charges proposed against them. At this hearing, the

prosecution, defense, and legal representative of the victims present evidence,

after which the judges must decide within sixty days whether or not there is

enough evidence to proceed to trial. If the suspect is not present, legal

submissions are allowed, but the official hearing cannot begin. Further, if the

judges determine there is not sufficient evidence to confirm the charges, the

suspect is released, and the case closed.

b. The Trial Chamber

Following the confirmation of charges against the alleged perpetrator

(referred to as the defendant), the case moves to the Trial Chamber, which is

composed of three judges. This Chamber serves to ensure fair and expeditious

trials while maintaining the defendants' rights and the safety and security of

victims and witnesses. In the Trial Chamber, rulings of guilt or acquittal are

18 If the Pre-Trial Chamber judges determine there are reasonable grounds to believe that the individual accused will not voluntarily appear before the Court, will endanger the proceedings or investigation, or may continue committing crimes if not arrested, an arrest warrant will be issued. If the judges believe the person will cooperate and voluntarily appear at the Court, the judges may issue a summons to appear. See

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issued and defendants sentenced, if found guilty beyond a reasonable doubt. At

the Court, the maximum sentence may not exceed thirty years of life, and

sentences may never include the death penalty. Those found guilty may also face

financial penalties and orders to make reparations for the harm against victims in

the form of compensation, restitution, or rehabilitation.

c. The Appeals Chamber

The final Chamber is Appeals, which consists of the President of the Court and four

other judges. In this Chamber, both the Prosecutor and Defense may appeal decisions of

the Pre-Trial and Trial Chambers. Further, the convicted as well as victims of guilty

convictions may appeal a reparations order given in sentencing or petition for one to be

instituted. Based on the ruling of the five judges, decisions may be upheld, reversed, or

amended. Decisions may include judgments to convict or acquit, sentences, or orders for

a new trial before a new Trial Chamber.

iii. The Office of the Prosecutor

The third organ of the Court is the Office of the Prosecutor (OTP). The OTP

analyzes events and alleged crimes referred to the court—situations-- to determine

whether there have been crimes warranting investigation and brings alleged perpetrators

before the Court. The tasks of the OTP are delegated between three divisions. First, the

Jurisdiction, Complementarity, and Cooperation Division aims to assess the admissibility

of alleged crimes to the Court based on jurisdiction and cooperation. Second, the

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and questioning victims, witnesses, and suspects. By investigating incriminating and

exonerating circumstances to an equal degree, the OTP attempts to establish the most

accurate record of events and truth. Finally, the Prosecution Division is responsible for

arguing cases before the Court's Chambers.

iv. The Registry20

The fourth organ, the Registry, provides administrative and operational

support to the Chambers and OTP. The organ seeks to ensure that the Court is

appropriately serviced and develops sufficient mechanisms for assisting victims,

witnesses, and the defense to safeguard the rights under the Rome Statute and the

Rules of Procedure and Evidence.21 The registry additionally serves as the Court’s

official channel of communication, providing ICC’s public information and

outreach operations.

Access to participation and protection for witnesses and victims falls under

the administration of the Registry. Witnesses can be called by the OTP, the

Defense, the Legal Representative of the Victims, or the Judges themselves. Four

types of witnesses can testify before the Court. First, fact witnesses testify about

what happened. When they have personally suffered harm, they are crime-based

witnesses, testifying on what happened to them. Second, insider witnesses hold a

direct connection with the defendant. Third, expert witnesses testify within the

field of their expertise. Fourth, overview witnesses assist in establishing the

20 The section “The Registry” draws heavily on the following source unless otherwise noted. See International Criminal Court, “Witnesses,” n.d. https://www.icc-cpi.int/about/witnesses.

21 The Rules of Procedure and Evidence are an instrument to apply the Rome Statute of the ICC. See International Criminal Court. “Rules of Procedure and Evidence,” 2002.

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contextual facts of the conflict and crimes and can include, for example,

professors or NGO representatives.

The Registry offers multiple avenues of practical support to witnesses, such as

obtaining visas, assistance in travel and room and board, and establishing video link

services for those staying in their place of residence. Witnesses may also receive

allowances to compensate any financial burdens related to testifying and practical support

through familiarization with the Court. During this process, the registry sees any practical

measures needed to ensure the witness can testify in a secure manner while taking into

consideration their privacy, dignity, and well-being.

The Court bases its protection system for witnesses on practices aimed to conceal

the interaction of the witness and the Court to shield the witness, victims, and others put

at risk on account of the testimony given. In all protective measures taken, the Court aims

to choose that which is least intrusive on the witness’s wellbeing. Where witnesses

reside, measures may be taken that are proportional to the risk posed to the victim. Such

measures may include local protection measures, assisted moves, or security

arrangements aimed to address an identified threat as a last resort witness relocation is

used, as this puts an immense burden on witnesses and their families.

In the courtroom, the Trial Chamber may order protective measures during

testimony to protect the identity and whereabouts of the witness. Such measures may

include distortion of face or voice or the use of a pseudonym. In special cases, judges

may conduct portions of hearings in private or closed hearings.

Within the registry are staff members with expertise in trauma, including the trauma

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Chambers on taking measures to prevent further psychological harm resulting from

appearance before the Court. Those of particular vulnerability to psychological harm,

such as children, sexual violence survivors, or elderly persons, may be provided further

special measures to facilitate their wellbeing. These measures may include having a

support person by their side during testimony, having a psychologist in Court, adapting

the courtroom setup to prevent viewing the defendant, or modifying questioning to

prevent provoking excessive trauma.

IV. Case Proceedings

This thesis implements cases as my level of analysis. Through the ICC, information is

available on all twenty-seven cases which have been brought by the OTP. By analyzing

the population of ICC productivity on the case level I will present a close study of the

intricacies of factor interaction and progression of these cases to trial. The surrounding

proceedings to cases, include the crimes, the principle of complementarity, how alleged

crimes are referred to the case, situations, and details of cases themselves. In order to

understand how cases progress, or fail to progress, the structures of cases are necessary to

understand.

A. Crimes

The Court prosecutes crimes commonly referred to as a whole under the title of "atrocity

crimes.”22 The Rome Statute defines atrocity crimes under four prosecutable crimes:

genocide, crimes against humanity, war crimes, and crimes of aggression.23

22 ABA Center for Human Rights. “Home.” How the ICC Works. American Bar Association. Accessed December 5, 2019. https://how-the-icc-work.aba-icc.org/

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The first crime tried at the court is genocide, the definition of which was taken

directly from the instrument of the UN Genocide Convention of 1948.24 Genocide is

defined as any of the following acts committed with the intent to destroy, in whole or in

part, a national, ethnical, racial or religious group, as such:

(1) Killing members of the group;

(2) Causing serious bodily or mental harm to members of the group;

(3) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(4) Imposing measures intended to prevent births within the group; Forcibly transferring children of the group to another group.25

The second set of prosecutable crimes by the ICC are crimes against humanity.

Defined by the Rome Statute, these are crimes "committed as part of a widespread or

systematic attack directed against any civilian population, with knowledge of the

attack."26 These crimes may occur during times of peace or war and apply to numerous

actions, including murder, extermination, torture, and rape.

Dissimilar from the crimes mentioned above, which may take place in times of peace

as well as war, the two other crimes prosecutable by the ICC are relevant to times of

armed conflict between or within states. The first of these, war crimes, are criminal acts

related to the armed conflict.27 The Rome Statute defines such crimes as

(1) Grave breaches of the Geneva Conventions of August 12, 1949

(2) Other serious violations of the laws and customs applicable in international armed conflict within the established framework of international law

24 On 9 December 1948, the Genocide Convention signified the first human rights treaty adopted by the UN General Assembly. The Convention signified the international community's commitment to preventing atrocities similar to those of World War II and the Holocaust. See United Nations Office on Genocide Prevention and the Responsibility to Protect. “Legal Framework” United Nations, n.d. https://www.un.org/ en/genocideprevention/genocide-convention.shtml.

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(3) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law.28

Within the scope defined above, specific crimes may range from the illegal

seizure of property to attacking civilian objects to using prohibited gas.29 Further,

the Statute specifically marked additional concern during civil conflicts for

persons uninvolved "in the hostilities, including members of armed forces who

have laid down their arms and those placed hors de combat.”30If a crime is

committed during the war, but unrelated to the conflict, it must be prosecutable

under the other three crimes tried by the ICC to be relevant to the situation.

The charge crime of aggression differs from the other three crimes tried at the

Court due to its adoption in 2010. During the Review Conference of the Rome Statute

between May 31 and June 11, 2010, the ASP added this crime to the scope of the Court.

After a decision and ratification by a majority of State Parties, the Court exercises

jurisdiction over the crime after January 1, 2017. Further, the Court must prove the

necessary political or military control of the accused to direct the action of the state in

perpetrating the act of aggression.

The crime of aggression is defined in the revised Rome Statute as

(1) the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity,

28 The Geneva Conventions are four treaties to define the rights of war prisoners, establish protections for the wounded, and protect civilians in war-zones. The treaty of 1949 defines the rights and protections for non-combatants. See International Committee of the Red Cross. “The Geneva Conventions and Their Additional Protocols,” January 1, 2014. https://www.icrc.org/en/document/geneva-conventions-1949-additional-protocols.

29 ABA Center for Human Rights. “Home.”

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and scale, constitutes a manifest violation of the Charter of the United Nations.

(2) The use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.31

Of such situations that the Court has decided to investigate, the prosecution

may only fall on individuals, not on groups or states. These individuals must be

above the age of eighteen when the crimes were committed. The Court focuses on

those who, based on evidence, bear the most significant responsibility for the

crimes. Although the Court does not take political action, it does not exempt

governmental officials from prosecution.32

B. Complementarity

The Court’s jurisdiction centers on the principle of complementarity, meaning

the ICC only “complements” other courts that have jurisdiction over the alleged

crimes.33 The implementation of the complementarity principle differentiated the

ICC from other known institutions, including the ad hoc tribunals of the

International Criminal Tribunal for the former Yugoslavia (ICTY) and

International Criminal Tribunal for Rwanda (ICTR), in recognizing that states

have first responsibility and right to prosecute international crimes.34 The OTP

must first determine if another court is both willing and able to investigate and

prosecute the case, or has already done so. The ICC thus becomes a “court of last

31Rome Statute, Part 2 Art. 8 bis; inserted by resolution RC/Res.6 of 11 June 2010 32 ICC. “Understanding.”

33 ABA- ICC Project, “Admissibility Assessment: Complementarity.” n.d. https://www.aba-icc.org/how-the-court-works/preliminary-examination/complementarity/.

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resort.”35 If another court is or has investigated or prosecuted the alleged crimes,

the ICC will never have jurisdiction to move forward with the case.

Complementarity is based both on considerations of ability to produce results

and respect for the primary jurisdiction of states, as states traditionally possess the

best access to evidence, witnesses, and the resources necessary to carry out

proceedings.36

C. Referrals

When atrocity crimes have been committed, the Court requires a referral of the events

containing the crimes, known as a situation, in order to investigate and potentially bring

the individuals found responsible to trial. Referral avenues are a unique structure of the

Court as they vary dependent on a series of factors. A series of influences are evident via

referral avenue, including cooperation of states and UNSC support. For these reasons

referral avenue is relevant to assess in conjunction with other factors in this thesis.

There are three avenues by which situations are referred to the Court to be

investigated. First, are Proprio motu referrals. The Court uses the Latin phrase meaning

an “official act taken without a formal request from another party.”37 This referral method

follows two possible routes. The ICC Prosecutor may authorize preliminary situation

investigations through the jurisdiction of the Rome Statute if the alleged crime has taken

place in the territory or by a national of a State Party. Alternatively, states that are not a

party to the Rome Statute may consent to the jurisdiction of the ICC. After the

35 ABA-ICC Project, “Admissibility Assessment.” 36 International Criminal Court, “Informal Expert Paper.”

37 The phrase Proprio motu sources from papal documentation and changes to law at the direct discretion of the Pope. In the context of the ICC, the Latin term means “on one’s own initiative.” See Catholic Encyclopedia, “Motu Proprio.” Accessed December 9, 2019.

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prosecutor's preliminary examination, they must report their findings to the Court's

judges for approval of a formal investigation.

Second, State Party referrals are instances when any State Party to the Rome

Statute refers alleged crimes to the ICC. The crimes must have occurred "on the territory

of the State Party that makes the referral or on the territory of another State Party; or by a

national from the referring State Party or another State Party."38 States that deem

themselves unable to try criminals of atrocity crimes in their judicial system may bring

the situation to the ICC; such referrals are a form of State Party referrals called

self-referrals.

Third, the United Nations Security Council (UNSC) possesses the power to bring

referrals. The Council may propose a resolution for approval by the UN General

Assembly (UNGA). If passed by the UNGA, the referral moves to the ICC Prosecutor,

who can accept and begin an investigation. However, if a permanent member of the

UNSC vetoes a resolution, the Court may never gain jurisdiction. For example, Russia

and China vetoed the referral of Syria in May of 2014.39 Currently, of the five permanent

members, only France and the United Kingdom are parties to the Rome Statute,

indicating a lack of support for the Court within this subsect of the UN.

The three avenues of referral, and the cases which came from each situation are

illustrated in Figure One. First, Proprio Motu referrals have led to four situations under

investigation. The situation in Kenya resulted in four cases and Côte d’Ivoire’s situation

resulted in two cases.40 Two of these situations—Burundi and Georgia—are still under

38 ABA-ICC Project, “How the ICC Works.” n.d. https://how-the-icc-works.aba-icc.org/.

39 United Nations News. “Russia, China Block Security Council Referral of Syria to International Criminal Court.” United Nations, May 22, 2014. https://news.un.org/en/story/2014/05/468962-russia-china-block-security-council-referral-syria-international-criminal-court.

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investigation and the OTP has yet to determine cases. The majority of situations referred

to the ICC fall under State Party referrals, in total five. Mali, Uganda, and Central

African Republic 1 (CAR 1) each yielded two cases. The situation in the Democratic

Republic of the Congo (DRC) resulted in six cases and the second situation in the Central

African Republic (CAR 2) led to one case.41 To date, only two situations, Sudan and

Libya, passed through the necessary steps from the UNSC referral to ICC investigation.

Sudan resulted in five cases and Libya in three.

Figure 1: Referral Avenues to the ICC42

41 Central African Republic 1 and 2 are separate situations and investigations, with CAR 1 opening in 2007 and CAR 2 opening in 2014.

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Regardless of the referral method, the OTP must always begin an

investigation with a “preliminary examination.”43 During this phase of

examination, the OTP determines whether the alleged crimes meet jurisdictional

requirements of the Rome Statute- time frame, territory, subject matter of the

crimes, and personnel, meaning the alleged perpetrator is an individual over the

age of 18. Once these requirements are met, the OTP determines if the potential

cases identified through the investigation satisfy the terms of complementarity,

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and if moving forward with an investigation at the ICC serves the purpose of the

Court, of bringing justice for past atrocities and accountability in the future, as

established in the Rome Statute.44 If all the necessary steps are met, the OTP may

turn a preliminary examination into a formal investigation called a situation.

D. Situations and Cases

When atrocity crimes have been committed, the Court requires a referral of

the events containing the crimes, known as a situation, in order to investigate and

potentially bring the individuals found responsible to trial.

The process of investigation by the ICC has two stages of categorization to address

the occurrence of atrocities. On a broad scale, situations which entail all crimes, are

investigated to bring about the more specific cases. Situations are the broad grouping of

the events and actions which contain the alleged atrocity crimes, labeled by the country in

which the events took place. After an event or series of events in which one of the

atrocity crimes tried by the ICC appears to have been committed, the OTP is responsible

to investigate and determine responsible individuals. The International Criminal Court

investigates actions and subsequent events, known as situations, that perpetrated potential

crimes of genocide, crimes against humanity, crimes of aggression, and war crimes.

Situations are “generally defined in terms of temporal, territorial, and in some cases,

personal parameters, entail the proceedings envisaged in the Statute to determine whether

a particular situation should give rise to a criminal investigation."45 After a situation has

been referred to the Court, if the OTP accepts the referral, and an investigation is started.

44 The OTP may decide not to move forward in an investigation if there are substantial reasons to believe doing so is not in the interests of justice. A Pre-Trial Chamber must review this decision. See ABA-ICC Project. “How the ICC Works.”

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Until an investigation into the situation finishes, cases cannot be opened against alleged

perpetrators.46

From the investigation into situations, the OTP identifies the individual or

individuals most responsible for the atrocities. Labeled by the name(s) of the

defendant(s), cases “comprise specific incidents during which one or more crimes within

the jurisdiction of the Court seem to have been committed by one or more identified

suspects, entail proceedings that take place after the issuance of a warrant of arrest or a

summons to appear."47 Each case is against an individual, or group of individuals (futher

referenced as defendant(s)) and consists of, at minimum, a single charge of one of the

four crimes tried by the Court, or any combination or number of these crimes.

As a model to explain the distinction, the cases involving Uganda demonstrate the

difference between a situation and a case.48 The Situation under investigation referred to

"alleged war crimes and crimes against humanity committed in the context of a conflict

between the Lord's Resistance Army (LRA) and the national authorities in Uganda since

July 1, 2002."49 From the investigation into the Situation, the OTP determined there were

two cases: Ongwen and Kony, et al. The individuals of these cases were alleged to be the

people most responsible for the crimes committed in the situation and were to be tried at

the Court. As of 2019, Kony et al. remains in pre-trial as the defendants have yet to

appear at the Court, where proceedings cannot continue in absentia. The case against

Ongwen entered trial in 2016, and as of December 2019, awaits a verdict.

46 The situations of Burundi (opened in 2017) and Georgia (opened in 2016) yet contain identified alleged perpetrators, and thus, have yet to result in cases. See ICC, “Situations.”

47 Mohamed M. El Zeidy, The Principle of Complementarity in International Criminal Law: Origin, Development, and Practice (The Netherlands: Martinus Nijhoff Publishers, 2008) 251.

48 The situation in Uganda was self-referred to the Court by the Ugandan government in January 2004. In July of 2004 te OTP officially opened an investigation into the situation. See International Criminal Court. “Situation in Uganda,” n.d. https://www.icc-cpi.int/uganda.

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V. Discourse of the ICC

A large majority of literature surrounding the ICC centers on the ideology behind

internationalized courts. The normative reasoning for supporters and opponents to the

Court is important. However, research evaluating the influences on the Court present

active contributions to understanding how the institution interacts with the larger world.

There is a gap in non-theoretical research evaluating the productivity of the Court,

especially when looking at cases individually; this thesis attempts to contribute to filling

the gap in research. By understanding the discourse surrounding the Court and other

internationalized courts I will deduce the measures likely to have the most influence on

trial outcome.

The ICC’s presented mission is to serve as a means of justice that is legitimate,

through legal integrity, and meaningful, by providing victims with “an option and a

possibility of enforcing their rights to truth, justice, and reparations.”50 However, due to

factors from an array of forces, the achievement of such goals is not always successful,

evident through the fact that only ten of the twenty-seven cases brought to the Court have

progressed to trial. In a report for Human Rights Watch (HRW), Evenson examines the

lack of effective strategies by the OTP to counteract the inherent weaknesses and factors

impacting the ICC. Through her analysis of the first four situations investigated by the

ICC— the Democratic Republic of the Congo (DRC), Uganda, Central African Republic

(CAR), and Sudan-- and the progress of the cases spurring from them, Evenson explains

ways by which there are gaps in the productivity and success of the Court. The primary

forces of influence come from external states, the state containing the investigation

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(target state) and the reliance of the Court on their cooperation, and the opportunities

provided for victims or witnesses to participate in investigations and trials.51

The HRW report argues that in order to evaluate and resolve issues facing the

Court, one must approach research concerning the individuality and uniqueness of each

situation and the cases within them. Although thematic commonalities exist within the

challenges facing the Court, each case at the Court contains unique aspects which are best

examined through breaking the larger groupings into direct measures. Literature

surrounding international tribunals and courts show an array of ways in which the three

primary areas of impact, as identified by HRW, present themselves on a case by case

basis.

A. External Influences

Elaborating on the research put forth by HRW, external influences consist

of the pressures state place on the target state. Within the category of external

influence there is unity in the impact external influencers have, yet they are

unique in the means by which their influence is exerted. The UNSC, for example,

possesses the political capacity to sway the actions states, especially developing

states. Neighboring states influence ICC capabilities by assisting in apprehension

of alleged perpetrators that are active in geographic regions and by pressuring

neighbors to support interests of human rights.

In 2003, the ICC began investigating the alleged crimes committed in

Uganda by the Lord’s Resistance Army, a religious-extremist rebel group active

throughout central Africa. The referral of this situation represented a

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groundbreaking moment in ICC history, as it was the first instance of a state

referring a situation to the Court. As Akaharan argues, Uganda’s referral to the

Court represents clear action by the government to seek restitution and justice for

the thousands of LRA victims, many of whom were children.52 The situation in

Uganda, however, also presents an issue as the investigation into the LRA

presents evidence of activity from alleged perpetrators in countries besides

Uganda. The rebel group was active in multiple countries across the region,

specifically Sudan, the Democratic Republic of the Congo (DRC), and the Central

African Republic (CAR). The defendants in cases sourcing from the situation are

more likely to avoiding capture by crossing the border into states where they have

a pre-established base and evidence of the crimes to be tried at the Court may be

in the neighboring state. If the neighboring state cooperates with the Court’s

investigation and apprehension of the defendants, concerns of the defendant

avoiding capture are lessened. However, if the neighboring state does not hold the

pursuit of justice for the alleged crimes in high regard, the state poses a great

impediment to the progression of investigation and trial as the Court does not

have jurisdiction over the neighboring states to the state of referral.

Political instability, such as an ongoing human rights crisis, in a

neighboring country is shown to have a strong negative impact on a country’s

economic performance, as shown by Chua.53 The impact of conflict within a

regional neighbor mirrors that of an equivalent rise in instability in domestic

52 Payam Akhavan. "The Lord's Resistance Army Case: Uganda's Submission of the First State Referral to the International Criminal Court." The American Journal of International Law 99, no. 2 (2005): 413. Accessed February 15, 2020. doi:10.2307/1562505.

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politics. The negative influences travel through two primary channels. First, by

disrupting trade flows. Regions containing instability experience lower overall

trade. Second, instability forces military expansion diverging government

resources from more productive forms of expenditures. These negative economic

results of neighboring conflict expound the negative effects the possible risks of

spillover from nearby political unrest.

Chua concludes that reducing regional instability not only benefits the welfare of

all countries in the region, but also provides economic benefits. Countries thus recognize

the need for policies directed to quelling territorial disputes and creating lasting peace.

Such policy motivations mirror incentives to promote institutions such as the ICC which

strive to create long term solutions to political struggle. Thus, neighboring states have

incentives to pressure states to cooperate with institutions such as the Court to bring

peace, not only on the basis of human rights, but to reap the economic benefits peace

brings.

Identifying failure to appear at the Court as one of the most prominent

impediments to trial movement, Peskin cites the low value for human rights in

neighboring states as a critical issue facing the OTP's prosecutorial trajectory.54

His research also analyzes the situation in Uganda, adding evaluation of the

impact of Sudan's relationship to the Court. In 2005, when the investigation into

Sudan opened, the Court was simultaneously pursuing the arrest of Joseph Kony,

Vincent Otti, and Dominic Ongwen, the three defendants of the cases brought

through the Uganda situation. Peskin argues that evident through their own human

54 Victor Peskin. "Caution and Confrontation in the International Criminal Court's Pursuit of Accountability in Uganda and Sudan." Human Rights Quarterly 31, no. 3 (2009): 657. Accessed March 23, 2020.

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rights violations and avoidance of the Court, Sudan’s regime at the time lacked

the appreciation for standards of human rights necessary to use its position as

Uganda's neighbor to impact the objectives of the Court positively. The core of

the relationship between Uganda and Sudan holds for other states. When a

neighboring state does not possess high standards of human rights, they are

unlikely to positively impact Court investigations and processes within the target

state. Rather, low adherence to human rights is likely exerting negative influence

via withholding evidence and failing to assist in the apprehension of individuals

with warrants for their arrest.

The UNSC holds a unique position in relationship to the ICC. Politi and

Nesi analyze the legal influence of the UNSC on the Court and present the ways

this influence can be executed.55 First, the Court’s scope includes partial referral

responsibility. If the UNSC deems a series of events dire enough to require

prosecution, they can pass approval to refer the situation to the ICC. However,

when a permanent member of the UNSC vetoes a referral, the ICC can never try

the case. Secondly, as nearly all issues involving peace and security globally are

brought to the UNSC, it potentially possesses an influence on the states involved.

Triffterer elaborates on the aspects of the relationship between the UN, ICC, and

countries containing situations under investigation.56 The most relevant points in

this portion of the book refer to Articles 11 and 12 of the Rome Statute. These

Articles give allowances for the UN to provide access to headquarters, within

55 Mauro Politi and Giuseppe Nesi, The Rome Statute of the International Criminal Court: A Challenge to Impunity (Ashgate Publishing Limited, 2001): http://libproxy.lib.unc.edu/login?url=https://search-proquest-com.libproxy.lib.unc.edu/docview/59829662?accountid=14244

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State Parties, to the Court for use in investigations. Increased UN support for ICC,

will help in providing greater access to evidence, witnesses, and direct

investigation involvement by the Office of the Prosecutor. Support may be shown

to the greatest degree through ratification by other permanent members, or by

issuing official statements encouraging states comply with investigations.

The UNSC permanent members additionally possess power through

implementing their policies related to the ICC. Of the five permanent members, only

France and the United Kingdom ratified the Rome Statute. In contrast, Russia, China, and

the United States all express oppositional stances to the Court. The United States signed

the Rome Statute in 2000 under the directive of President Clinton.57 However, two years

later, the US officially issued a statement against ratification of the Statute, and President

Bush symbolically "un-signed" the Statute.58 As world leaders, namely the United States,

have withdrawn from the Rome Statute, there has been more global criticism of the

legitimacy and usefulness of the ICC. For example, Jack Goldsmith argues that because

of the lack of support from the United States, and similar world powers, the ICC loses

strength and jurisdictional scope.59 The United Nations Security Council maintains

significant influence over smaller states worldwide. As such, the ties and impact of the

UNSC on the ICC have been examined on multiple fronts.

The US created a foreign policy that not only blocks ICC power over US soldiers,

but punishes states who have ratified the Rome Statute. Part of the American

Servicemembers' Protection Act (ASPA) stipulates that if a country has ratified the

57 ABA-ICC Project, “The US-ICC Relationship.” n.d. https://www.aba-icc.org/about-the-icc/the-us-icc-relationship/.

58 ABA-ICC Project, “The US-ICC.”

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Statute, it is ineligible for military assistance unless it has a signed agreement to exempt

all American citizens and employees from Court procedures.60 American leverage

extends further into global access, as the refusal to exempt the US from Court access has

been found by Johansen to impact NATO membership eligibility for European states.

The US possesses power over weaker states' ability to fruitfully engage with the global

community while maintaining standards of human rights. Despite intentions of the ICC

being an institution based on justice rather than politics, this is not the reality today.

Through UNSC referral of the situation in Sudan, the OTP was able to build a

case against multiple individuals, one of whom was Omar al-Bashir, who was acting

president of Sudan since 1993. When referred by the United Nations Security Council,

Resolution 1393 was adopted in 2006 to explicitly call on Sudan to cooperate.61 However,

the power of such action ultimately was not effectively carried out due to the Court’s lack

of enforcement mechanism. The ICC does not possess a military or police force to

independently enact the powers of investigation and the defendant apprehension. Thus,

when a state does not act to participate with proceedings, the Court is put in a deadlock.

B. Target State

As an international body, the Court does not preside over territory or

country as the dominant judicial measure. When states cannot legally address

atrocity crimes sufficiently, the Court serves as an alternative path towards

justice. The Court relies on states to give consent to both its legal jurisdiction and

investigations. Thus, the actions by the target state, or state containing the referred

60 Robert C. Johansen. "The Impact of US Policy toward the International Criminal Court on the Prevention of Genocide, War Crimes, and Crimes against Humanity." Human Rights Quarterly 28, no. 2 (2006): 314. www.jstor.org/stable/20072739.

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situation, impact the ability of the Prosecutor to conduct full and thorough

investigations. By cooperating with defendant apprehension and evidence

collection, the target state assists in limiting the impediments the OTP may face in

the pursuit of case building.

As the Court does not possess an enforcement mechanism, similar to a

police force or military, states may support investigations by assisting with arrests

or evidence collection providing a way for investigations and subsequent cases to

proceed in a fair and expedited manner. Beyond the ratification of the Rome

Statute, the ICC's legal structure contains an element to ensure the privileges and

immunities of Court personnel so that if an investigation is needed, there already

exists the necessary structures. In the absence of its own enforcement authorities,

such as police or army, the Court established the Agreement on the Privileges and

Immunities of the International Criminal Court (APIC). The APIC attempts to

bridge the gaps left from the lack of enforcement mechanism by establishing a

permanent allowance for Court personnel within states to conduct an

investigation, strengthening the Court's jurisdiction to investigate and

subsequently prosecute cases.

Due to the value the APIC holds to the Court's ability to prosecute

atrocity crimes, states that ratify the agreement show support and adherence to the

objectives of the Court. If a state chooses to ratify the agreement, it is showing it

intends to support investigations within its borders. When building cases that

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greater, more readily available access to the target state, which encourages

expedient and efficient trials.

As an alternative to an independent institution, such as the ICC, the global

community may establish hybrid courts to seek justice for atrocity crimes. The

jurisdiction of hybrid courts is based on the combination international and domestic law.

Such courts seek to counteract impediments to productive trials faced by purely

international tribunals. The melding of the two court systems provides global

acknowledgment, and expertise of international law while utilizing the expedition of

pre-established courts of the domestic system and showing domestic adherence to

international standards.62

An example of hybrid courts is the Extraordinary Chambers in the Courts of

Cambodia (ECCC), which was established after the genocide committed by the Khmer

Rouge. Following a request by the Cambodian government to the UN, an agreement was

reached in 2003 to detail how the international community would participate and assist

the Chambers. The purpose of the international element was to assist Cambodia’s legal

system in handling the cases of serious crimes committed by the Khmer Rouge regime

and the global impact of such crimes.63

When states do not have control of the trial, as is the case with the ICC, they may

be less inclined to cooperate with obtaining both the accused and evidence. A lack of

cooperation has the potential to delay or impede the progression of the Court. Mundis

examines issues of excessive domestic involvement in the context of the ECCC,

62 Kerr and Mobekk, Peace and Justice, 83-85.

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specifically addressing the change to the charge of genocide.64 The Statute for the

Cambodian Court removes the crucial element that the victim is a part of the "group as

such," diminishing the costs faced by the individual due to group membership, and

negating a vital element of the crime of genocide. The change to legal wording shows a

major divergence from the definition established through the Genocide Convention,

which was the definition used by the International Criminal Court and ad hoc tribunals.

Although alterations by states to charges by the ICC are not possible, Mundis’s research

rings true for state involvement in the Court. As states do not possess the power to

directly influence the procedure of the Court, some may decide that giving full

jurisdiction to an institution does not coincide with its objectives.

Of the most prominent issues facing the ICC is the elusive definition of the

Court's original jurisdiction. When states bring their citizens to trial, they have clear

boundaries of where and what they can try. Depending on the referral method, state

cooperation is more or less likely. Politi discusses national jurisdiction, specifically the

broad reaches of the Court and scenarios in which authority may fluctuate.65 The essential

point of Court jurisdiction is that it reaches as far as the borders of Rome Statute State

Parties go, and conditionally extends further based on UNSC referral or state/self-

referrals. There is critical importance in the type of referral as well as state cooperation,

as both can have significant impacts on the difficulty faced when the Court is seeking

access for investigation and custody of the accused.

64 Daryl A. Mundis, "New Mechanisms for the Enforcement of International Humanitarian Law." The American Journal of International Law 95, no. 4 (2001): 939-40. doi:10.2307/2674654.

65 A nation's supreme authority (sovereignty) and practical authority to administer justice over territories, things, and persons within its boundaries. See InforMEA, “National Jurisdiction.” n.d.

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The issue of the Court’s jurisdiction has caused debate among members since its

origins. During the last session of the Preparatory Committee creating the Rome Statute,

a heated discussion developed between the UK and Germany, each with their own

opinion on the best way to rectify the issue of jurisdiction. The UK argued that both the

custodial and territorial states' consent should be required for 'automatic jurisdiction.'

Germany, alternatively, supported the view that there should be universal jurisdiction for

the Court, due to the majority of states' agreement to the Statute. Ultimately, neither

position emerged the 'winner,' leaving states with significant control over Court

proceedings.66

The case of Al Bashir further shows the impact the defendant's

relationship with the regime in power can have. Ssenyonjo identifies the case as

unique because it was the first time the ICC brought charges against a sitting head

of state. As such, the Court encountered impediments to prosecution to a greater

degree than other cases. As the most powerful individual within his state, Al

Bashir possessed sole responsibility for his appearance at the Court, barring the

occurrence of a coup and his forceful removable.67 The Court cannot begin

hearings to confirm charges against a defendant unless the accused individual is

present at the Court. For this reason, when defendants, such as Al Bashir, refuse

to appear, the case gets trapped in pre-trial. The relationship between the

66 Michail Vagias, The Territorial Jurisdiction of the International Criminal Court. (Cambridge: Cambridge University Press, 2014.) doi:10.1017/CBO9781139525374.

67 In early 2019 Al Bashir was ousted as president of Sudan by a coup. In February 2020 a spokesman for the current regime stated they intend to hand Al Bashir over to the ICC to face the charges against him. See Mohanad Hashim, “Omar Al-Bashir: Sudan Agrees Ex-President Must Face ICC.” BBC News, February 11, 2020. https://www.bbc.com/news/world-africa-51462613; See also Manisuli Ssenyonjo, "The

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defendant and the regime in power possesses great influence over the Court’s

ability to move forward with proper, expedient proceedings.

C. Societal Characteristics to Support Victims and Witnesses

Due to the similarity in structure and purpose, the ICC faces inherent challenges

that parallel those faced by the other ad hoc tribunals. Tochilovsky explores impediments

to the Court’s functions, including the expectations of the public of recognition, both

internationally and domestically, of the suffering inflicted and the challenges of bringing

justice on a global scale.68 He recognizes the impact that citizens of the target state have

on the participation with, and thus the progression of international trials.

An additional impediment may be the distance between victims or witnesses at

The Hauge, Netherlands, where the physical Court is located. When the physical location

of the trial is in another country, it is often difficult to maintain a positive connection

between those impacted by the crimes in question. Without a robust structure to connect

the local population with another country, and often a legal system with no connections

to the culture of the people, justice as a whole suffers. The positive views of trials often

are difficult when the trials are being held in another country, and by foreign legal

structures.

The horrors of warfare and violence have a uniquely intensified impact on

women and girls. Although identified as a crime against humanity in the Geneva

Conventions and at the Nazi trials at Nuremberg, rape charges did not see

conviction until 2001 at the ICTY. The ruling at the ICTY addressed the use of

rape against women as an act against an ethnic group via attacking individuals.

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Franco researches how perpetrators in nearly every instance of planned violence

use rape to exert dominance, emotional and physical trauma against the direct

victim and her family, and destroy the group identity as an aspect of genocidal

violence.69

The societal disadvantages women face intensifies the intensely personal

element of gender-based violence. Beyond the physical and emotional trauma,

women face the weight of shame, and often guilt attached to their attack. Franco

recounts the testimony of a rape survivor of the Guatemalan civil war, “if there is

a theme capable of producing silence (mudez), it is rape.”70 Without a robust

structure to protect, support, and believe the stories of women, the international

community fails to grasp an essential aspect of the atrocities connected with

planned violence. Research suggests that this gap in acknowledgment can be

countered by directed action to provide a space for women's voices when

pursuing restorative justice. Through supporting women's testimony, truth

commissions and trials allow women to talk about the violence specific to their

gender and seek the recognition and justice deserved.

Through researching when and how women come forward with testimony

of gender-based violence as a part of the crimes addressed by the ICC,

Swaak-Goldman identifies four aspects which influence women’s voices.71 First, the

Court must provide unique protections for victims of sexual violence. The trauma

69 Jean Franco. "Rape and Human Rights." Modern Language Association, 121, no. 5 (2006): 1662. Accessed February 15, 2020. www.jstor.org/stable/25501642.

70 Franco. "Rape and Human Rights." 1663.

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resulting from gender and sexually based assaults extends beyond the assault

itself to inflict trauma both to the physical and mental wellbeing of the victim due

to the intensely personal nature of the assault. Additionally, women in repressive

societies often face backlash and blame for assaults of this nature, impeding their

ability participate in trials seeking justice for crimes of this nature. Second,

survivors often face great stigma within their communities and become ostracized

once the public gains knowledge of their assault. Third, the Court must address

the perceptions of sexual or gender-based crimes as less significant than other

forms of violence. Due to the stigma women face, the locus of blame often shifts

from the perpetrator onto the victim. For this reason, the Court must take

additional care to protect, address, and bring justice for this aspect of atrocities.

Finally, the Court’s ability to prosecute sexual or gender-based crimes is

significantly impacted due to the underreporting of rape. Swaak-Goldman finds

clear evidence that in societies that marginalize and oppress them, women are

often afraid and too ashamed to come forward to seek justice for their

experiences.72 If women do not come forward due to the culture of their

communities, the Court lacks vital evidence needed to build cases against the

alleged perpetrators. Thus, when target states show evidence of systemic

oppression of women, it is reasonable to assume that attempts at trials are likely to

suffer.

VI. Measures of Influence

Gathered through surrounding literature, my analysis of case progression at

the ICC and the factors which influence it centers on three key categories:

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external influences, target state, and societal support for victims and witnesses.

Within these categories I identified core aspects which are likely to impact the

Court. First category is external influences, which contains neighbor state

commitment to human rights, alignment with France, and non-cooperation orders.

Second, I look at target state factors, which consists of commitment to the ICC,

commitment to human rights, and relationship of the defendant to regime. Finally,

I look at societal characteristics to support victims and witnesses, specifically

threat of defendant to society and civil society characteristics.

A. External Influences

Neighbor State Commitment to Human Rights

The relationship of neighboring states to the target state impacts case progression

through diplomatic pressure and, in some cases, seizure of defendants. Neighbor states

hold a stake in maintaining peace in surrounding states to prevent spillover of conflict,

fugitives crossing borders, and impacted trade due to instability.73 The willingness of a

neighbor state to exert leverage and influence on the target state may impact the level of

cooperation of the target state with the Court. The state with the greatest combined trade

influence and shared border can be hypothesized to possess the most significant amount

of impact on the target state.

To determine each target state's most influential neighbor, an additive index of two

measures was created: first, the portion of the target state's border shared with the

neighbor state; and, second, the percent of total imports and exports of all products

between each state for the year the OTP investigation opened. The state with the highest

score is cross-referenced with reported population density to ensure the alignment with

Figure

Updating...

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