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POST WRITTEN BYProf. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

Pursuant to N.Y. Penal Law § 125.25 (1)(a), a defendant charged with intentional murder may present an affirmative defense that at the time of the killing he suffered from an “extreme emotional disturbance” (EED) for which there is “a reasonable explanation or excuse.” If a preponderance of evidence supports this defense, defendant will be convicted of manslaughter, rather than murder.

The NY Court of Appeals has reviewed a dozen or so cases on the potential merits of an EED claim. Most of these presented the issue of whether the trial judge erred by declining defendant’s request to charge the jury on an EED defense. In a November 18, 2015, decision the Court of Appeals reviewed the case of People v. Israel, 2015 N.Y. Slip Op. 08370, in which the trial court did charge the jury on defendant’s EED claim, but the jury rejected it.

The key facts in Israel were that in June 2007 the defendant, upon seeing a friend chased and threatened by several men, fired a gun multiple times at the pursuers, killing one of them. With respect to the killing, the prosecution introduced alternative counts of intentional murder and depraved indifference murder. Note, however, that Penal Law permits an EED defense for an intentional murder charge but not for depraved indifference murder.

At trial in support of his EED claim, the defendant called a psychiatrist, who opined that defendant suffered (untreated) post-traumatic stress disorder (PTSD) as a result of an altercation defendant had with two men in October 2005, during which defendant was stabbed eight times in the back. The expert testified that defendant reacted violently in June 2007 because his PTSD was triggered when he saw his friend being chased and attacked. The expert further testified that defendant was “not a violent person by nature” and had no “significant history of having done violent acts.”

To contest the claim that defendant’s action in June 2007 was attributable solely to the PTSD, the prosecution cross-examined the psychiatrist about two incidents prior to the stabbing and about one that occurred in 2010, in all of which defendant reacted violently with little or no provocation. Regarding the 2010 incident, the prosecution subsequently called to the stand a corrections officer, who testified that while defendant was incarcerated in August 2010, he smashed an inmate telephone in anger and threatened the officer.

In People v. Israel, the jury rejected defendant’s EED argument and convicted him of intentional murder for killing one of his friend’s pursuers and of attempted murder for firing at police officers who came to the scene.

The issue on appeal at the Appellate Division, First Department was whether the trial judge erred by allowing the prosecutor to cross-examine witnesses about the defendant’s other bad acts and to present testimony about the 2010 prison incident. As I wrote earlier, to be admissible such evidence must relate to a material issue and must not be used to show defendant’s propensity to commit wrongful acts.

The Court of Appeals unanimously held that by making an EED claim, defendant raised a material issue about his state of mind at the time of the killing and thus “opened the door” to rebuttal about whether PTSD was the sole reason for his actions at that time. Noting that objection to evidence of one of the two prior bad acts had effectively been waived at trial, the Court found that the prosecutor’s questions about defendant’s other bad act prior to his stabbing were for consideration, as the trial judge made clear in limiting instruction to the jury, only to the issue raised by defendant about his state of mind at the time of the killing and not for evidence of propensity.

The Court did agree with defendant that the trial court erred in admitting evidence of the 2010 prison incident (three years after the crime charged) because the focus of an EED defense must be on whether defendant was suffering from an EED at the time of the crime charged. This evidence should have been excluded as pointing only to propensity, but the Court held this error harmless because other admissible evidence showed “overwhelming” proof and affirmed defendant’s conviction.

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We all think and say it: images are worth a thousand words. The same is true when prosecuting a case. Prof. Bennett L. Gershman of Pace Law School, in his latest HuffPost piece titled Prosecutorial Misconduct Using Courtroom Technology challenges the way some prosecutors put on their cases when using technology. He suggests that many increasingly cross the line when they use technology to suggest that “‘beyond reasonable doubt’ is really not that demanding” of a standard, when they use “visual trickery” to awaken an angry and emotional reaction out of jury, or when they sway juries by showing “misleading and prejudicial images” during their closing arguments.

Prof. Gershman states that

[a]lthough there’s nothing inherently wrong with using technology in the courtroom, more and more prosecutors cross the line by exploiting the power of technology to skew the way juries analyze the evidence, and thereby prejudice a defendant’s right to a fair trial.

Check it out and share your thoughts.

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POST WRITTEN BYProf. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

In a novel recently translated into English by Frank Wynne, French writer Pierre LeMaitre takes the reader back 97 years ago to the final weeks of World War I. The novel begins with an account of a French officer’s ordering of a trench-to-trench attack against German forces at a time when everyone knows that the war is about to end. So the attack, although “successful” in achieving a very limited territorial gain, merely adds more senseless deaths and shattered lives to the horrendous casualties suffered in four years of war. During the attack, a terrible crime is committed. The reasons for this crime and for the attack itself are explored in LeMaitre’s trenchant analysis of the characters involved.

The novel proceeds to explore further horrors of the war and its aftermath. During the fighting, the bodies of the fallen were frequently interred in makeshift fashion, often buried in farmland and without coffins. After the war, families of the fallen sought to learn where their loved ones were buried and to have them exhumed for re-internment in a proper resting place. Because of the massive numbers of dead and problems in identifying decaying corpses, this process involved severe difficulties and taxed the resources of a French government whose finances were depleted by four years of war on French soil.

The novel tells the story of some unscrupulous people who schemed to profit from this situation through acts of fraud in purporting to identify, exhume, rebury, and provide monuments for soldiers who died in service to their country. While the particular facts of this part of the story are fictional, they are largely based on an actual exhumation fraud in France that was exposed a few years after the war.

LeMaitre provides a brilliant and disturbing account of how a criminal scheme such as this could come about and how, at a time at once of both national celebration and mourning, some of those in power would prefer to have a fraud like this swept under the rug, not only for the sake of those grieving but primarily for their own sake in avoiding charges that they failed to exercise proper oversight.

The novel often shockingly forces the reader’s attention to some of the most abhorrent possibilities of human behavior and to the unspeakable suffering involved in war. But it also provides a story of extraordinary devotion to duty by common soldiers and by an investigator who pursues the truth and does the right thing, despite temptations to turn away.

The plotting and pacing of LeMaitre’s novel are superb. His character analysis plumbs the depths of the human soul, with great insight. It is not surprising that when this novel was published in France in 2013, it was awarded the Prix Goncourt, France’s leading literary award. An English translation was published this year, with the title The Great Swindle.

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POST WRITTEN BYProf. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

As noted here previously, the New York Court of Appeals recently reviewed People v. Jorgensen, a case of a woman whose reckless driving caused her unborn child to suffer injuries that led to the child’s death six days after birth. Among other charges, the prosecution sought to convict the woman of second-degree manslaughter for recklessly causing the death of “another person,” the person here being the defendant’s baby daughter. The first jury to hear the case failed to reach a unanimous verdict. The jury in a second trial returned a verdict of guilty, which was affirmed by the Appellate Division, Second Department.

The legality of the conviction presented the Court of Appeals with a matter of first impression. Case law in the Appellate Division had previously upheld manslaughter convictions of defendants whose reckless acts directed against a pregnant woman resulted in the death of the child after birth. The issue now was whether a similar manslaughter conviction could be lodged against a pregnant woman for her own recklessness.

Writing only for himself in dissent, Judge Fahey marshaled powerful arguments that the applicable N.Y. Penal Law statutes, when read together and in their plain meaning, demonstrated that the defendant was guilty of manslaughter. He noted that recklessness, as defined by N.Y. Penal Law § 15.05(3), provides responsibility for future consequences of a defendant’s disregard of substantial and unjustifiable risks, and the consequence in this case was the death of a person born shortly after the reckless act.

The Court’s majority, however, reversed the conviction. The majority did not dispute that the victim of defendant’s reckless conduct was a person under the law at the time she died. Indeed, the majority’s own report of the facts and issues refers to the victim as a “baby” and as a “child.” Nevertheless, as a predicate for moving beyond the plain meaning of the applicable statutes referenced by Judge Fahey, the majority purported to find an ambiguity in their references to “person.”

It seems, however, that the ambiguity found by the majority does not in fact involve possibly different meanings of the word “person” as used in the statutes. The majority does not explicitly identify conflicting meanings of “person.” Moreover, the majority does not dispute the propriety of the manslaughter convictions in the Appellate Division cases referenced above, but simply distinguishes them as not involving charges against a pregnant woman.

Instead, what concerned the majority was that other Penal Law provisions in which the legislature provided for a pregnant woman’s responsibility for harm caused to her fetus, such as through self-abortion acts, classify the offense in question as a misdemeanor and require proof of the pregnant woman’s intent. Accordingly, the majority framed the statutory interpretation issue as: “whether the legislature intended to criminalize a mother’s own reckless conduct” – not the conduct of another – in a situation such as in this case.

Because the only penal statutes that unambiguously hold a pregnant woman criminally responsible for the death of a child she is carrying do so in a very different context, require proof of her intent, and provide only for a misdemeanor charge, the majority decided that a felony conviction based on a pregnant woman’s recklessness is not supported “under the current statutory scheme.” In the majority’s view, manslaughter liability in a case such as this is a matter for the legislature to decide prospectively after full consideration. It should not be initiated by a prosecutor’s charging decision and decided by a court without sufficient guidance by the legislature.

A complication in this case was that the defendant, when taken to a hospital after the accident, consented to an emergency cesarean section. In doing so, she was trying to save her child’s life. But the fleeting success of this effort also provided the basis for a manslaughter charge against her.

Seven years ago, defendant’s careless act placed in mortal danger the daughter she had been carrying in her womb for 34 weeks. It took two jury trials before the prosecution could obtain a manslaughter conviction against her. Because of the statutory ambiguity found by the Court of Appeals, the defendant’s conviction is reversed, and she will not have to serve the three to nine year sentence set by the trial court.

Sometimes life imposes harsher suffering than any sentence provided by law would.

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POST WRITTEN BYProf. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

Is evidence that an adult male made repeated offers to take a ten-year old girl on outings with him and at one time offered her the keys to his apartment legally sufficient to support a conviction for second degree kidnapping, where the man had only a passing acquaintance with the girl, his offers were unsolicited by the girl or her mother, and where the girl refused all the man’s requests to meet with her or to accept the keys to his apartment?

The Court of Appeals was confronted with this question recently in People v. Denson. As discussed previously, a 5-1 majority of the Court rejected Denson’s argument that the trial court erred in admitting evidence of his 1978 conviction for sexual abuse of his stepdaughter. But that was not all there was to this appeal.

Denson’s other argument raised the sufficiency of evidence issue mentioned above. The issue merited consideration because at no time did the defendant use any physical force against the girl; nor did she ever begin to accompany the defendant on any outing that he proposed to her. All of the defendant’s alleged efforts to attempt to kidnap the girl consisted only of offers to take her on outings or to provide her with the keys to his apartment – all of which the girl refused.

The applicable statutes relating to kidnapping and Court of Appeals precedents on attempt required the prosecutor to prove beyond a reasonable doubt that the defendant “must have engaged in conduct that came dangerously near commission of the completed crime,” which completion here would involve abducting the girl and holding her in a place where she would “not likely be found.” After all evidence was presented in a nonjury trial, the trial court found that the prosecutor met this burden.

On appeal to the Court of Appeals, Denson argued that the trial evidence was legally insufficient (1) to show his intent to abduct the girl and (2) to show evidence of an attempt to commit the actus reus of abduction.

In a decision issued on October 27, 2015, a 5-1 majority of the Court of Appeals, applying the standard of review for challenges to the legal sufficiency of evidence, found that, viewing the evidence in the light most favorable to the prosecution, the trial judge as factfinder could reasonably conclude that all elements of attempted kidnapping were proven beyond a reasonable doubt.

With respect to intent, the Court found the circumstantial evidence at trial, which included testimony by the girl’s mother and admissible evidence of defendant’s prior conviction, sufficient to withstand the sufficiency of evidence challenge.

With respect to the actus reus attempt element, Denson argued that because the trial evidence showed that the girl never acquiesced to any of his offers, the evidence was legally insufficient to show that he came “dangerously near” to abducting her. The Court disagreed, stating that its case law focuses primarily on evidence of a defendant’s conduct, which in this case included defendant’s 30 to 40 offers to meet alone with the girl. The Court added that if it were to accept defendant’s argument, a kidnapping defendant “could never be guilty of attempt because the crime charged could not be completed without the acquiescence of the victim.” The Court held that “under the circumstances of this case, a rational factfinder could conclude that defendant had moved beyond mere preparation to the point that his conduct was potentially and immediately dangerous.”

In his dissent, Judge Eugene Pigott agreed with defendant’s argument that because the girl rejected defendant’s offer to accept the keys to his apartment, the evidence at trial was legally insufficient to support the attempted kidnapping conviction. Judge Pigott stated that although “defendant clearly engaged in alarming behavior with the child…his actions, even viewing them in a light most favorable to the People, did not come ‘dangerously close’ to attempted kidnapping.” In Judge Pigott’s view, appropriate recourse was for psychological treatment for the defendant, rather than incarceration.

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POST WRITTEN BYProf. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

Federal and state law demand careful scrutiny of a prosecutor’s attempt to introduce evidence of a defendant’s bad acts committed prior to, and unrelated to, the crime charged. Such scrutiny is necessary because of the danger that the prior bad act will be taken as proving the defendant guilty of the crime charged, simply because of defendant’s purported propensity to commit crime, thus taking attention away from the evidence relating to the specific charge under consideration. Caution regarding prior bad act evidence is especially necessary in jury trials, but the law imposes cautionary rules even when the fact finder is a judge.

The New York Court of Appeals has confronted this issue many times and did so again recently in People v. Denson. In this case, the prosecution pursued charges against a man who made repeated attempts to meet with a ten-year old girl who lived in an apartment in a building in which the defendant worked. These attempts included defendant’s offer to provide the girl with the keys to his apartment; this offer, and all defendant’s other offers to meet – made on at least thirty occasions – were rejected by the girl.

The prosecutor obtained a grand jury indictment against the defendant on charges of attempted kidnapping in the second degree under N.Y. Penal Law §§ 110.00 and 135.20, and endangering the welfare of a child under N.Y. Penal Law § 260.10(1). To support the intent element of the attempted kidnapping charge, the prosecutor sought to introduce evidence of defendant’s 1978 sodomy conviction relating to sexual abuse of his stepdaughter. The prosecution’s theory was that because the victim of the prior case and the potential victim in the case at hand were both young girls and because the prior case involved sexual abuse, the evidence of defendant’s prior conviction was probative to show that he intended to abduct the girl in the case at hand for similar sexual abuse.

Upon the trial judge’s initial rejection of this evidence, the prosecution renewed its request through a hearing in which it presented expert testimony in support of the theory that defendant’s actions in the prior case and in the case at hand showed a pattern of criminal conduct with criminal intention against young girls. The defense provided testimony of its own expert in rebuttal. After the hearing, the judge admitted the evidence of the 1978 conviction, finding it probative evidence of intent, which the law allows as an exception to the rule against evidence of prior bad acts.

After trial in which, among other testimony, both experts testified, the judge, as fact finder in this nonjury trial, convicted the defendant on both charges. On appeal to the Appellate Division, First Department, the convictions were affirmed by a divided vote.

In a decision issued on October 27, 2015, a 5-1 majority of the New York Court of Appeals affirmed the convictions, concluding that the trial court did not abuse its discretion by considering evidence of defendant’s prior conviction. The majority considered that the judge had reason to find this evidence as probative for the issue of defendant’s intent and that such evidence outweighed the danger of prejudice based on propensity.

Judge Eugene Pigott dissented. In his view, the trial court abused its discretion in considering the 1978 sex crime conviction because in the case at hand “no sex crime was involved or charged.” Judge Pigott added that the prior conviction could not be “relevant to show that defendant intended to kidnap the child, as his prior conviction did not include any kidnaping.”

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POST WRITTEN BYProf. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

Before a matter can be fully pursued by the International Criminal Court, the ICC Prosecutor must first in the course of a preliminary examination determine, among other jurisdictional requirements, whether national authorities are actively pursuing a case of potential concern to the ICC. This is because the principle of complementarity, set forth in the Preamble of the Rome Statute and given specificity in Article 17 of the Rome Statute, debars the ICC from pursuing possible crimes within its subject matter jurisdiction if a State that can assert jurisdiction over the matter is doing so.

Article 19 of the Rome Statute provides additional force to the complementarity principle. It states that “[t]he Court shall satisfy itself that it has jurisdiction in any case brought before it” and that “[t]he Court may, on its own motion, determine the admissibility of a case in accordance with Article 17.” Article 19 also allows certain individuals and States to challenge the admissibility of a case.

In one of its first cases, the ICC prosecuted Thomas Lubanga Dyilo, the leader of a group pursuing violent opposition to the government of the Congo – despite the fact that the Congo was pursuing charges against him for genocide and crimes against humanity. Because these charges did not specifically include the crime of enlisting children under age 15 to participate in hostilities (a crime within ICC’s subject matter jurisdiction), the ICC determined that it could pursue that charge against Lubanga, without violating the principle of complementarity. ICC prosecution of Lubanga on this charge resulted in 2012 in the first conviction achieved by the ICC.

In an October 2015 report, ICC Prosecutor Fatou Bensouda needed to address the complementarity issue when requesting authority from a Pre-Trial Chamber to open an investigation into 2008 conflict in the South Ossetia region of Georgia. As written earlier, this conflict includes possible crimes committed by South Ossetian forces rebelling against Georgia and by Georgian forces in response, and – potentially – by Russian forces that intervened in support of the rebels.

In August 2008, Prosecutor Bensouda’s predecessor opened a preliminary examination of this matter. ICC Protocol regarding preliminary examinations requires the Prosecutor to first determine whether there is a reasonable basis to believe that crimes within ICC jurisdiction have been committed. The OTP recently made an affirmative determination regarding the Georgian situation prior to 2015. In her October 2015 Request for Authorization, Prosecutor Bensouda mentions that the seven-year delay in presenting her request was caused by the need, pursuant to Article 17’s complementarity requirement, to monitor efforts by national authorities in Georgia and Russia undertaking investigations of crimes of concern to the ICC.

The Prosecutor further states that Russia’s investigations appear to be proceeding. However, although Georgia had been engaging in investigations since 2008, Georgian officials notified her Office in March of this year that, because of several difficulties, Georgia was discontinuing its investigations. Because of this discontinuance, the Prosecutor concludes that there is at this time no complementarity objection that would defeat her request to open an investigation into the Georgian situation.

An ICC Pre-Trial Chamber must now decide whether to authorize the Prosecutor to open an investigation. The Trial Chamber will determine, among other jurisdictional issues, whether an investigation comports with the principle of complementarity. As noted above, even should the Chamber grant the Prosecutor’s request, challenges to admissibility may be raised at later stages.

POST WRITTEN BYProf. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

Does New York’s Penal Law subject a pregnant woman to a manslaughter charge for the death of her child if, while driving a vehicle recklessly, she causes a collision that injures her fetus and as a result of these injuries, her child dies days after being delivered?

As noted here previously, the New York Court of Appeals was confronted with this question this year in a case arising from a May 2008 car accident in which a woman, Jennifer Jorgensen, while driving in Suffolk County, swerved out of her lane and crashed into a vehicle traveling in the opposing lane. Two people in the other vehicle were killed, and Jorgensen’s child, after delivery through emergency caesarian section, died six days later from injuries suffered in utero from the accident.

Suffolk County prosecutors pursued three manslaughter counts against Jorgensen for recklessly causing the death of the two people whose vehicle she struck and for the death of her child. A jury found Jorgensen not guilty on the counts relating to the people in the other vehicle but convicted her on the count relating to her child. Jorgensen appealed her conviction on that count.

The NY Court of Appeals’ review of this matter was not about sufficiency of the evidence considered by the jury. Rather, all judges agreed that the issue on appeal involved a question of statutory interpretation.

In a decision issued on October 22, 2015, Judge Eugene Pigott, writing for a 5-1 majority, framed the issue as follows: “did the legislature, through its enactment of [the relevant] statutory provisions, intend to hold pregnant women criminally responsible for engaging in reckless conduct against themselves and their unborn fetuses, such that they should be subject to criminal liability for prenatal conduct that results in postnatal death?”

Upon review of Penal Law §§ 125.15(1) addressing reckless manslaughter and 125.05(1) defining personhood as relating to homicide, the majority decided that the answer to the above question is NO. Given the unusual facts and issues in this case of first impression, the majority dismissed the count in question and stated that criminal liability for a case such as this “should be clearly defined by the legislature, not the courts;” nor should it “be left to the whim of a prosecutor.”

Judge Fahey in his dissent insisted that the wording of the statutes in question showed the legislature’s intent to criminalize an act such as that involved in this case. In support, he pointed to Appellate Division case law on related issues finding homicide liability based on acts committed against a pregnant woman that caused the death of the child after being born alive.

The majority opinion resolved this case in the defendant’s favor, based on the current statutory scheme. The court’s resolution suggests that the legislature could amend its statutes to provide a different outcome in the future, should an unusual case like this arise again. Whether the legislature will do so is an open question. Consideration would need to be given to the tragic circumstances in cases such as this one.

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POST WRITTEN BYProf. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

The ICC Prosecutor Fatou Bensouda is seeking authorization to investigate possible war crimes and crimes against humanity committed seven years ago in the context of a clash between Russia and Georgia. The conflict involves the effort by the former Soviet Union Republic Georgia to retain control of its region of South Ossetia.

In an October 13, 2015 Request for Authorization, the Prosecutor asks an ICC Pre-Trial Chamber I to authorize investigation of possible crimes within ICC jurisdiction committed between July 1 and October 10, 2008 in South Ossetia. In 2008, South Ossetian rebel forces took military action to gain independence, and Georgia responded with force to retain control. The Russian Federation sent military forces into South Ossetia to support the rebels. These forces then occupied South Ossetia during the time at issue.

After hundreds of people were killed and thousands of ethnic Georgians were forcibly displaced from their homes in South Ossetia, both Georgia and Russia maintained in the area troops designated as peacekeeping forces.

The Prosecutor’s Request for Authorization finds, pursuant to Rome Statute Article 15, a reasonable basis to believe that South Ossetian forces committed war crimes and crimes against humanity relating to forcible displacement of ethnic Georgians, and that war crimes were committed by South Ossetian forces against Georgian peacekeepers and by Georgian forces against Russian peacekeepers.

The submission suggests that further investigation, if authorized, might implicate Russian nationals in criminal activity. It notes substantial military, financial, and other assistance provided by Russia to South Ossetia and states that available information indicates that South Ossetian forces could not have continued with forcible displacement of ethnic Georgians “but for the occupation of Georgian territory by Russian armed forces and the military advances that preceded the occupation.” Pointedly, “information available indicates that at least some members of the Russian armed forces participated” in war crimes relating to displacement. Related charges of crimes against humanity would require evidence that Russian military or governmental authorities pursued a policy of displacing ethnic Georgians. The report states that such evidence is lacking “at this stage.”

Authorization to investigate would represent the first time the ICC has addressed a conflict on the European continent as all other nine currently open situations before the ICC involve countries on the African continent.

ICC entry would also be bold because the ICC would be intervening on its own initiative into a conflict involving a major world power and in a situation where there is an “ongoing tense relationship between Georgia and the Russian Federation” noted in the report. As a State Party to Rome Statute, Georgia could have referred the matter to the ICC, but it did not. The Prosecutor is pursuing this matter on her own initiative, following up on her predecessor’s initiative to open a preliminary examination of the situation in Georgia in August 2008.

As a State Party, Georgia has accepted obligations set out in Part 9 of the Rome Statute to cooperate with ICC investigations. Russia did not ratify the treaty establishing the Rome Statute, but it did sign it, and Russia also acceded to the Vienna Convention on the Law of Treaties. Article 18(a) of the VCLT requires a State that has signed a treaty “to refrain from acts which would defeat the object and purpose of a treaty.” Given the nature of the conflict at issue, however, the cooperation of the parties involved may be tailored to accord with partisan interests. The Prosecutor reports that she has engaged with, and received information from, authorities in Georgia and Russia. She cautions, however, that “[w]hen assessing the information in [her] possession, the Prosecutor has…taken into account the possible bias and interests from parties to the conflict, and has therefore primarily focused…examination on allegations corroborated by third parties.”

In support of her request for authorization, the Prosecutor notes receipt of requests from several possible victims of the conflict and from seven Georgian and international human rights organizations seeking justice for victims and punishment of the perpetrators.

An ICC Pre-Trial Chamber I must now decide whether to grant the request for investigation. If the Chamber does so, the ICC will enter a new and challenging phase in its work.

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