Based on the reading,

1. Palestine is a state party to the Rome Statute and, therefore, a member of the International Criminal Court. Which of the following statements about Palestine is FALSE?

-The Court has jurisdiction over crimes committed by Palestinian nationals anywhere in the world.

- The Court has jurisdiction over crimes that occurred during the last major war in Gaza, by both sides

-Under the Rome Statute, Israel is required to cooperate with the Court, including turning over evidence and witnesses

-The Court has jurisdiction over crimes that take place in the territory of Palestine, including unlawful settlement activity in the West Bank

2. If a corporation engages in human rights abuses or environmental destruction, the International Criminal Court can order the corporation to pay damages to victims or to environmental protection efforts.

False or True

Reading,

the goal of an international criminal prosecution is not just to put the perpetrators behind bars. It's also to provide some restoration or restitution to the victims to make them whole again. This is the influence of the restorative justice movement. Sometimes in the international realm, this is called transitional justice, which is a subset of restorative justice that relates specifically to post-conflict settings. The Rome Statute makes several concessions to the restorative justice movement. We'll look at victim participation, reparations, and the trust fund. Uniquely, at the International Criminal Court, victim participation is permitted at all stages of a preceding. This is to help form the overall narrative of the case and to preserve victim testimony as a historical record. Justice was done at Nuremberg and subsequent trials, and in Rwanda and Yugoslavia. The victims are entitled to make their views known at the ICC. For instance, if the charges are dropped, victims can make a statement to the court as to how that affects them. This doesn't mean that victims can make evidentiary statements. The rules of evidence still apply if a victim is also a witness. There's a due process problem if that weren't true. However, participating victims may, nonetheless, make statements to the court a victim's impact statement to help establish the narrative of the crime and see the consequences of the defendant's actions. This is especially important at the sentencing phase. Thousands of victims have participated at the ICC. In fact, the number is rapidly becoming quite unwieldy. The Registrar is responsible for authorizing victim participation in the trial. Representations to the court must be made through the legal representative for victims, which is appointed by the registry. Every case at the ICC is between the prosecutor, the defendant, and the victims representative. In other words, all three of them are present in the courtroom at any given time. These trials are, therefore, three-way trials. This can make trials a little bit more adversarial because the defendant's up against two opponents, not just one. The legal representative for victims will attend hearings, make submissions, tender evidence, can even examine witnesses. Examine and cross-examine witnesses, and allow victims to make statements. It's similar to the representative of a class in a class action lawsuit. This is a participatory element of a criminal proceeding, and it's unique to the ICC's criminal procedure. This clip will explain more about how victims participate in International Criminal Court proceedings. In this issue of ICC In Focus, we've talked to Fergal Gaynor and the common legal representative of victims in the trial of Uhuru Kenyatta at the International Criminal Court. The common legal representative is a lawyer who represents all of the victims entitled to participate in the court proceeding. My job is to represent the interests of the victims in the trial of Uhuru Kenyatta. So like every lawyer, I have to go and speak to my clients, see what they think about what's going on in the trial, and then to tell the judges of what the victims think of the various issues that have arisen. What are the issues that are important for victims? One of the most important things for the victims and for me, is to make sure that the judges get the truth as to what happened during post-election violence. If we see anything which is misleading, disingenuous, invasive, or a downright lie, I think it's very important that that should be made clear in the courtroom, that that's not what happened. Who are the victims that you represent? Obviously, I'll have to go and physically meet my clients, and there are thousands of victims of this case. They live in lots of different towns and villages, or across the Nyanza region some on the Western region, some on the Rift Valley region. All of the victims that I represent used to live in Nakuru and Naivasha. I not represent the victims who were living in other towns during the post-election violence. Because the crimes committed in those other towns aren't part of the charges against Mr. Kenyatta. Now, after they were expelled from their homes to live in areas in the Nyanza region and Western region predominantly, they didn't receive much help from the government. In many cases, they got no help at all. In some cases they got one five-kilogram tin of maize meal. That's all they got for five years. Now, during the post-election violence, a lot of women were raped, a lot of men were beaten, a lot of people were hit with pangas, men had their penises cut off. As a result of all this, they have medical needs which have extended to the present day. A lot of the people had to look at traumatic scenes of people being killed, of human heads being put on sticks, as a result of those experiences, they have post-traumatic stress disorder. They haven't received the medical treatment that they need. So a lot of today's problems are directly linked to the crimes which took place during that period in January 2008. When a machete lands on a human head, it can take many blows to kill. That became clear to victim 9309, one morning in Naivasha in January 2008. He had tried to escape his house but Mungiki found him, hacked him repeatedly with a machete and then left him for dead. When I first met him five years after the attack on him, his head bore deep, deep scars, and part of his skull appeared to be hanging on by a miracle. On the evening of the attack, as he lay helplessly and hospital, he telephoned his wife who told him that after he had left, she had been gang raped by Mungiki, then doused in paraffin and set a blaze. Both of them were lucky to escape alive. all victims have the same views and concerns? I always make it clear to the victims that each and every victim is entitled to his or her own opinion. This isn't, essentially, a democracy. We're not ruling by a majority. So if one group of victims think one thing, another group of victims think something else, and two or three people might have a totally different opinion, it's my job to relate the opinion of all of those people to the judges. What are the views and concerns of victims? Your Honors, four of the victims who were authorized to participate by the Pre-trial Chamber in this case have died. For those four victims, Your Honors, justice delayed, truly, has been justice denied. Now, many of the victims in this case are elderly or in ill health. They themselves quite, honestly, fear that they too will pass away before they see justice in their own lifetimes. The victims are interested in justice, primarily. They want the people who are responsible for the horrific crimes committed against them to be held responsible, and they want the truth to be told. They want justice, not just for themselves, and not just for their families, but for their communities and for all of the victims of the post-election violence. The Rome Statute authorizes victims of mass atrocity to seek reparations against perpetrators. This is done after the sentencing phase. Only individual reparations are authorized. There's no provision in the Rome Statute for seeking reparations against governments or against corporations or other legal persons, only individual defendants have to pay them. The court can use a variety of methods for calculating reparations, it can be a flat payment, it can be individual claims such as involving medical expenses, it can include computer sampling or statistical modeling for property crimes or lost business profits, for instance, it can include a onetime lump sum or payments spread out over months or years. There have not been that many cases involving reparations so far. In fact, there's only been one ruling so far and that involved Thomas Lubanga, and that case was a child soldiers case. The legal question there was who's entitled to to seek reparations, is it the child soldiers who were the victims of Thomas Lubanga unlawful recruitment of child soldiers or is it the people who were terrorized or killed by the child soldiers? The indirect victims versus the direct victims. The court ruled that only the child soldiers, the direct victims were eligible to seek reparations. That the people who were injured by the child soldiers, would have to seek trust funds, which we'll talk about in the next slide. Now, the reparations scheme is by no means the be-all and end-all of restorer of justice the ICC. It's really quite unlikely, that being something like a warlord gets a person a lot of money, and most of these defendants are not wealthy. Even if they were, and the ones who were former heads of state such as Lauren Kavanaugh might actually have some assets. But even if they were wealthy, could the court gets access to these assets? It's not clear, the court will requires state cooperation to that. What if a defendant dies during the trial, can his assets, his estate be used to pay reparations? We don't know., These situations haven't arisen yet at the court, but they might in the future. Because the reparation scheme is likely to always be limited, the Rome Statute creates the Trust Fund for Victims which is managed by the registry. The Trust Fund for Victims raises voluntary contributions from individuals, foundations and corporations, and governments to benefit victims and communities. These funds don't go to individual victims, instead they go to affected communities. They can include for instance antiretroviral treatment for HIV transmission, they can include building a community health center or a school. As of 2008, there were over $3 million in the trust fund donated by a variety of entities and these have been distributed in some situations. The International Criminal Court is facing to existential challenges. In a nutshell these are the Palestine problem and the African problem. The Palestine problem, relates to the fact that Palestine is now a state party of the International Criminal Court. That means, that the court has jurisdiction over crimes committed on the territory of Palestine including those by nationals of Israel. Under the Rome Statute, unlawful settlements, in a militarily occupied zone could constitute a war crime. This leads to the question, are Jewish Israel settlements in the West Bank, which have been deemed by the UN to be unlawful under international law? Are these war crimes and can Israeli government officials be prosecuted for them? The court probably would rather not find out. Any prosecution, would raise the ire of the United States and that, can be dangerous to the court. The African problem. Refers to the court's current political dispute with the African Union, which perceives the court to be targeting Sub-Saharan Africa for prosecution. The African Union has called on its members to withdraw from the court. Thus far only one Burundi has, although a few others took initial steps to doing so. At this point, it's probably unclear that Africa will withdraw from the court in mass, especially as the court ramps up its focus and other situations, for instance in the Russia-Georgia war, in Afghanistan, and in Colombia. How the court manages these two crises in the next few years, will determine its long-term survival. As of April 1st, 2015, Palestine is a state party to the Rome Statute. This means, that the court has jurisdiction over all crimes committed on the territory of Palestine or all crimes committed by Palestinian nationals. Palestine backdated its membership to June 13th, 2014, the day after the three Israeli teenagers were murdered in the West Bank which triggered the last war between Israel and Palestine involving the Gaza Strip in particular. Palestine only became a state in the UN on November 29th, 2012. This is the date that the General Assembly voted to upgrade Palestine status from non-member observer to non-member observer state. Now, that sounds like a technicality ended is, but it gives the court and out. It prevents Palestine from backdating its membership all the way to July 1st, 2002. If the Palestine were allowed to that, it would an enormous amount of liability, both for Palestine and for Israel. So much has happened in Palestine over the last 15 years. According to the court, Palestine is not allowed to backdate its membership to before November 29th, 2012 which is the date that it became a state in the UN General Assembly. Palestine didn't backdate that far, it only backdated to June 13th, 2014 to encompass that summer 2014 war with Israel. Here's the problem in Palestine, that were alleged war crimes on all sides in that war, certainly Hamas used human shields and fired bottle rockets to civilian areas that it couldn't control. Those are pretty obviously war crimes, because they didn't distinguish between civilians and combatants which is required by the laws of war. Israel's alleged war crimes by contrast are much messier. Not providing enough warning before attacking civilian buildings, that could be a war crime, but it's a matter of degree. Tolerating too much collateral damage for relatively low level Hamas fighters, that could be a war crime too, but it depends on a proportionality analysis. Under the laws and customs of war, a certain amount of collateral damage is permitted but this has to be weighed against this the military objective to be achieved. But if the military objective is too low- level, the level of collateral damage permitted is pretty low. But for a higher-level military objective, more collateral damage would be permitted under the laws of war. So, we have this problem which is that Palestines alleged war crimes are really quite obvious, and Israel's alleged war crimes are really messy and difficult to prove. Observers think that if Palestine really wants Israel to be prosecuted, it's going to have to fall on its sword. It's going to have to submit to prosecution first. Because quite frankly, it's a lot easier to prosecute Palestine for these obvious war crimes than it is to prosecute Israel for it's messier, more difficult war crimes. In addition, there's also likely some internal politics at play here. That Hamas, which runs the Gaza Strip, is the one that's implicated in the war crimes against Israel. Whereas Fatah, which controls the West Bank, is the one that made the referral to the ICC and ratified the Rome Statute because Fatah forms the government of Palestine. This could be a way for Fatah to blame Hamas. So in other words, there could be some internal Palestinian politics at play here. Most difficult of all, involve Israeli settlements in the West Bank. This is the messiest question of all. The Rome Statute defines as a war crime, the transfer of ethnic population into militarily occupied territory in order to change the demographic realities on the ground. For instance, this happened in Yugoslavia, moving people of Serbian ethnicity into Croatian areas in order to change the demographic makeup of the territory and ensure that it would remain part of Serbia. That's a war crime, that type of forcible transfer. Is Israel doing that in the West Bank? Is it transferring Jewish Israeli settlers into the West Bank in order to ensure continued Israeli dominance over the West Bank? It depends. It depends on whether Israel's occupation of the West Bank constitutes a military occupation. And that answer, at least from the perspective of US foreign policy, is really difficult to prove. The UN and other countries have resolved this in different ways. The UN has found that Israel's occupation of Palestine is unlawful. And other countries have agreed, the European Union has come to a similar consensus. But from the perspective of the United States, perspective of the United States, which is the perspective I'll give, Israel's occupation of the West Bank is only unlawful if the occupied territories were lawfully occupied before 1967, and that's unclear. That were Egypt, Jordan, and Syria lawfully occupying the West Bank, Gaza, and the Golan Heights before 1967? That's not clear from the perspective of the United States. If Egypt, Jordan, and Syria were unlawfully occupying the West Bank, Gaza, and the Golan Heights before 1967, then Israel is just reoccupying that. In other words, Israel's occupation may not be unlawful, and therefore, the sum and activity may not be a war crime. That's the perspective of the United States. International law has never resolved this question, and probably will never resolve it. The International Criminal Court is in no position to try to resolve it. These are criminal lawyers after all, they're not people who really are trained in resolving the legality of Israel's occupation of Palestine. And in that respect, it's probably unlikely that the International Criminal Court will prosecute Israel for settlement activity. In a nutshell, the quotes, "Africa problem", at least is the allegation that the prosecutor shies away from direct confrontation with powerful states. That she doesn't want to prosecute Afghanistan or Colombia or the Russia-Georgia war or Ukraine because this would offend a great power. African countries are easy targets because they don't implicate great power interests. This has the consequence of reinforcing African subordinate position in international politics. That African countries are picked because they're easy targets. But by picking them, you reinforce the fact that they're easy targets. That they don't implicate great power interests. That this pushes African countries further to the periphery of international relations. And that's a problem. There's even a more fundamental critique, a kind of Neil Marxist critique that European countries came up with the International Criminal Court and international criminal law. That European countries don't prosecute, for instance, multinational corporations which profit from conflict in Africa. Arms manufacturers, which flood the developing world with small arms. Rather, they prosecute petty warlords, for instance, who recruit child soldiers. They don't prosecute the profiteers, the mercenaries based in Europe. In other words, European countries come up with international criminal law and the international criminal court to prosecute relatively low-level African perpetrators, and not for instance, the major corporations who are responsible for serious abuses in Africa such as Royal Dutch Shell Petroleum which propped up the Nigerian military regimes, or Ford and Firestone rubber plantations which were sites of serious human rights abuses during the Civil Wars in Liberia and Sierra Leone. That Europe would rather prosecute Africa because Africa is weak, and Europe gets away with its own abuses in these civil conflicts. That's the critique. It's kind of a neo-Marxist critique. It's a very fundamental critique of International Criminal Law in general. The International criminal law, the powerful states came up with International Criminal Law basically to persecute the weak states while exonerating themselves of any involvement in these crimes. So, that's the critique. That's the African prominent nutshell. The responses of the African Union called on its member states to withdraw from the ICC. So far only one is done, and that's Burundi, which actually is facing its own investigation into crimes committed in Burundi recently when the government fired on protesters. The African Union has proposed creating a regional criminal court. In other words, adding a criminal chambers to the proposed African Court of Justice which hasn't yet come into existence because it hasn't had the requisite number of ratifications that it needs in order for the underlying treaty for it to come into force. This proposed criminal chambers would prosecute not only individual criminal liability for crimes such as war crimes or crimes against humanity, but also crimes committed by multinational corporations such as Royal Dutch Shell Petroleum in Nigeria or by mercenaries for organizations like Blackwater or the private military outfits. Would executives from Royal Dutch Shell Petroleum have to face criminal charges in Arusha, Tanzania at the African Court of Justice? Who knows how this project will look? It doesn't exist yet, it's just a proposal on the table. In addition, the African Court of Justice would allow head of state immunity. You could no longer bring a case against a sitting president or a military leader who's the head of state. In other words, you wouldn't be able to prosecute Adolf Hitler for the holocaust. That seems like a problem and NGOs and human rights organizations oppose that provision. If Africa creates a regional criminal court, it could also a double jeopardy problem. The Rome Statute doesn't provide for regional criminal courts. It provides for domestic trials. If you're being prosecuted at the domestic level, ICC can't prosecute. But what if you're being prosecuted at the regional level? The Rome Statute doesn't say. This will probably require an amendment to the Rome Statute. This clip will discuss the Court's African Union problem in more detail. The ICC and Africa. The Kenyan election in 2013 was seen by many as a referendum on the ICC and Western interference in Kenyan affairs and African affairs as a whole. Others suspected the result was rigged. The election pitted Uhuru Kenyatta and William Ruto's Jubilee coalition against pre-election favorite Raila Odinga's Coalition for Reforms and Democracy. The tendency for Kenyans to vote in ethnic blocks meant that in order to win, alliances between ethnic groups had to be formed. Kenyatta and Ruto represented an alliance between two of the nation's biggest ethnic groups, the Kikuyu and Kalenjin while Odinga's Luo allied with the Kamba and other Coastal groups, but they were unable to rally sufficient numbers of ethnic blocks votes to win. Charges against the current President Kenyatta and his Vice President Ruto stem from the violence that broke out after the disputed 2007 elections. More than 1,000 people were killed and 600,000 forced from their homes. The two men were on opposing sides of the conflict and many saw the alliance in 2013 as one of convenience, their goal being to avoid prosecution from the ICC. The ICC was created with the noble aim of bringing justice to those responsible for the worst crimes committed in the world. The operative word being world and not just African. Its participants funded with contributions being decided roughly by wealth. The European countries account for about 60 percent of this. Since its creation, the ICC has invited 30 people from eight countries all in Africa. It was 10 years before the court made its first conviction finding Thomas Lubanga Dyilo guilty of war crimes in the Eastern DRC. These statistics have led to criticisms of anti-African bias. The extent of the selective justice is highlighted by the fact that the court has had over 8,000 complaints for crimes in at least 139 countries to look into, but has only acted on cases in Africa. The African Union is among the leading critics of the ICC. It's chair and Ethiopian Prime Minister, Hailemariam Desalegn said, 'African leaders came to the consensus that the ICC process conducted in Africa has a flaw. The intention was to avoid any kind of impunity but now the process has degenerated to some kind of race-hunting.' Rwandan president, Paul Kagame has added, 'The ICC was put in place for African countries', and similar accusations have come from other African heads of state. The Court's credibility is further damaged by charges of the lack of evidence and devious methods used to gather it such as the case in Kenya. The speed with which the ICC launched an investigation in Libya after referral from the UN Security Council, has led to criticisms that the Court targets individuals that upset Western interests. The political agendas of Washington, London, and Paris have played out on the African continent for centuries now and the ICC is seen as another way of emasculating Africa as well as ignoring the crimes, abuses, and aggression of others. It seemed to have increasingly become a tool to accomplish the foreign policy goals of the US and its allies through its growing relationship with the UN Security Council and it's arbitrary use of the referral powers. This Western partisan justice has played out in biases even within Africa, turning a blind eye to pro-US regimes. The Ugandan Academic Professor Muhammad Mamdani says, 'The ICC's attempted accommodation with the powers that be has changed the international face of the Court. It's name notwithstanding, the ICC is rapidly turning into a Western court to try African crimes against humanity. Even then, the approach is selective: it targets governments that are adversaries of the US and ignores US allies, effectively conferring impunity on them.' This further complicates the view of the ICC in Africa. It is at once over zealous and not doing enough. The Court has been weak outside of Africa because whilst Africa is the most represented region, there are a lot of non-signatories operating beyond the Court's limit in other regions. Most notably, key international players China, Russia, the US, India, Pakistan, and Israel are not state parties to the Court. Recently, there has been a conscious move to look beyond Africa, to prosecute and improve the ICC's image in Africa. Gambia's Fatou Bensouda was installed as Chief Prosecutor after heavy lobbying from the AU and investigations into places such as Columbia, Georgia, the Republic of Korea, and Afghanistan signals the ICC is truly becoming international. Though there is still the glaring emission of the global superpowers and their allies on this list. Bensouda has said, 'It is the victims we are representing, ' and this is the most important thing to remember. The crimes that the accused are charged with are very serious and it shouldn't matter where they are committed. Though Africa does not have a monopoly on violence, the reality is that there are a lot of atrocities that fit the ICC's criteria happening on the continent. Many African countries lack the capacity to deal with some of the cases domestically leading to self-referrals as the ICC acts as the court of last resort. So it is up to the states to improve their judiciaries and uphold the rule of law domestically or else the actions of Africans will continue to be judged outside of Africa. Most importantly, the victims of the crimes need justice and African political elites can no longer be immune to prosecution. The geographic imbalance remains a highly curious matter and the ICC is not above criticism itself. It clearly has its deficiencies. For example, the large number of non-signatories crippling its credibility and its reliance on the states to deliver war criminals while many are not inclined to so. Sure it needs more might. The Court will continue to be accused of threatening sovereignty, being racist, and behaving neocolonially especially by those it investigates and African heads of state believe they have a legitimate gripe. One solution to the perceived biases of the ICC has seen Kenya recently pass a motion to leave the court and a similar move has been made by the AU for the remaining African states to withdraw unanimously.