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POST WRITTEN BY: Michael B. Mushlin, Professor of Law at Pace Law School, Scholar, and Renowned Expert on Prisoners’ Rights.

Just a few days ago a rare, if not unprecedented, event occurred: the United States Supreme Court ruled unanimously in favor of a prisoner. The case, Holt v. Hobbs, was an Arkansas prisoner’s challenge to a state prison policy that forbade him from growing a beard. Holt, who is Muslim, asserted that his religion requires that he grow a beard of at least a half- inch. His request to grow a beard was denied because of a prison rule that prohibited inmates, aside from prisoners with medical problems, from growing beards of any length. Holt sought an exemption for himself on religious grounds. When the prison denied this exemption he sued.

The Supreme Court, in an opinion by Justice Alito, upheld Holt’s right to grow a beard over the strong objections of prison officials who insisted that the no beard rule was essential to the security of the institution. The Court subjected the prison officials’ security arguments to close scrutiny. It ruled that it was “hard to take seriously” the state’s argument the rule was needed to prevent Holt from hiding weapons in his beard. It is impossible to hide most items in a beard so small and even small items could be detected by running a comb through Holt’s beard. Defendant’s argument that the no beard rule is needed to prevent inmates from changing their appearance thereby avoiding detection if they escape was similarly found to be without merit. This danger could be easily prevented by photographing the inmate without the beard and then later with the beard. The fact that the prison allowed prisoners with skin problems to grow quarter-inch beards also demonstrated that some facial hair on prisoners was not a serious security problem. In addition the Court emphasized, the “vast majority” of other states and the federal government permit inmates to grow at least a half-inch beards.

This ruling, which was based on the Religious Land Use and Institutionalized Persons Act (RILUPA) 42 U.S.C. § 2000cc-1(a), was not a constitutional decision. Instead it was based on Congress’ direction that a prisoner’s sincere claim to practice religion can only be burdened when the prison has a compelling state interest in a rule that restricts the prisoner’s religious practice and when the prison rule burdening religion is the least restrictive means of advancing its interest. Nevertheless, the Holt decision indicates that the Supreme Court will not always simply defer to prison officials when they proclaim – as they often do – that security needs require diminution of prisoners’ rights. Whether this signals that the Court will now begin to give meaningful review to prisoners’ claims that are not based on religious liberty rights remains to be seen. But the decision gives some cautious cause for hope that a new day is dawning for prisoners’ rights.

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On February 3, 2015 at 6:00 pm, the Criminal Justice Institute and Criminal Justice Society at Pace Law School will host a screening of the HBO Movie The Newburgh Sting, with the film’s director, David Heilbroner. This film, which was shown at the 2014 Tribeca Film Festival, tells the story of United States v. Cromitie, a 2013 terrorism case that arose out of Newburgh, New York and was tried in White Plains. The defendants were young men who joined the efforts of an undercover FBI agent posing as a terrorist in his plan to bomb a synagogue in Riverdale. United States v. Cromitie, 781 F. Supp. 2d 211 (S.D.N.Y. 2011). It has been said to involve the most outrageous government entrapment methods of any post-9/11 terrorism case. But did it? Or was it rather a successful prosecution of young men willing to join the efforts of an apparently well-armed, well organized terrorist? The jury took eight days to render its verdict, rejecting the entrapment defense. The defendants were sentenced to twenty-five year prison sentences. The Second Circuit affirmed in a divided opinion. United States v. Cromitie, 727 F.3d 194 (2d Cir. 2013).

After the screening, the attorneys involved in the case will join the director for a panel discussion addressing the many provocative issues raised by the film. Among these issues are:

  • Were the defendants entrapped as a matter of law or were they properly convicted for willingly joining a terrorist plot?
  • How can the government discover and prosecute people who are not members of a known terrorist organization but who are willing to join a plot to bomb US targets?
  • What are the differences between a film director trying to show “what happened” and a lawyer trying to prove “what happened” in a courtroom?
  • What do those differences say about our criminal justice system?
  • What do these lessons mean for lawyers and law students?

Several of the attorneys taking part in the panel discussion are graduates of Pace Law School: Susanne Brody is a 1988 graduate and an attorney with Federal Defenders of New York; Heather Bird is a 2010 graduate and is an attorney in Toronto, Canada; Gonul Aksoy is a 2008 graduate and an attorney with a White Plains firm; and Giovanni Rosania is a 2006 graduate also in private practice in White Plains. The panel also includes two well respected and well known criminal defense lawyers who were defense counsel in the case: Sam Braverman of Fasulo Braverman & Di Maggio, LLP, President of the Bronx County Bar Association, and Kerry Lawrence of Calhoun & Lawrence, LLP, a former Assistant United States Attorney.

The Pace Criminal Justice Institute generates educational opportunities for Pace Law students and promotes interdisciplinary collaboration between scholars, policymakers and practitioners in and outside the Pace community. The Institute supports and encourages creative research, teaching, and discussion concerning the theory and practice of Criminal Law. The Institute created and maintains an online forum, Pace Criminal Justice Blog, fostering and encouraging the discourse of important current issues in domestic and international criminal law and procedure.

In one of its last decisions of 2014, the Court of Appeals held that it will begin reviewing the Appellate Division’s summary denials of CPL 440.10(1)(g) motions.  The Court had held in People v. Crimmins38 N.Y.2d 407, 409 (1974) that

[t]he power to review a discretionary order denying a motion to vacate judgement upon the ground of newly discovered evidence ceases at the Appellate Division.

For nearly 40 years, the Crimmins decision kept the Court of Appeals from reviewing and determining whether such denials constituted “abuse of discretion.” People v. Jones, No. 14-219, ___ N.E.3d ___, 2014 N.Y. Slip Op. 08760, 2 (Dec. 16, 2014). In Jones, this Court overruled itself and explained that “the rule enunciated in Crimmins has needlessly restricted this Court’s power of review concerning CPL 440.10(1)(g) motions….”

In Jones, the Court held that the Appellate Division abused its discretion in summarily denying a defendant’s motion for an evidentiary hearing as part of his efforts to vacate his conviction on the ground of newly discovered evidence, pursuant to CPL 440.10(1)(g). Mr. Jones claimed that newly discovered DNA evidence would exclude him as the perpetrator of crimes of which he was convicted in 1981.  This decision signals a step in the right direction for the NY judiciary trying to grapple with evidence, like DNA, that may not have been available at the time of trial.

POST WRITTEN BY: Michael B. Mushlin, Professor of Law at Pace Law School, Scholar, and Renowned Expert on Prisoners’ Rights. 

Continuing a national trend the New York City Board of Correction yesterday unanimously voted sweeping changes to the use of solitary confinement in New York City Jails. The reforms eliminate the use of solitary confinement entirely for anyone under the age of 18, for anyone 18 to 21 years old (this goes into effect in 2016), and for anyone with serious mental or serious physical disabilities or conditions. Terms in solitary for all others cannot exceed 30 consecutive days for a single infraction,  and more than 60 days in any six month period. Due process protections are also expanded under these rule changes which will help limit the imposition of solitary on persons who did not break rules.

The changes voted by the Board of Correction address the major justification offered by opponents of solitary reform who have argued that solitary is necessary to contain the “worst of the worst,” inmates who are so violent that they cannot be safely confined in the general prison population. To deal with inmates who have acted in violent ways and who might pose a threat, the rules adopted by the Board of Correction allow for the creation of “Enhanced security Housing.” This housing allows the department to separate inmates who are violent without imposing solitary confinement on them. In these units inmates will be given services including psychological and mental health treatment to help them cope with violent tendencies and will not be locked into their cells 23 hours a day.

In the words of the Executive Director of the New York Civil Liberties Union the changes approved yesterday demonstrates that

New York City has taken an important stand for basic human rights and reaffirmed its commitment to the safety of prisoners, prison staff and our communities.

The reforms are a critical step in the national movement to end the shameful practice of solitary confinement in our nations penal institutions.

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In a controversial move, the State of Palestine became the 123rd State Party to the Rome Statute when it deposited its instruments of accession to the UN. According to the depositary notification, the action was effected on January 2, 2015 and the Rome Statute will enter into force for the State of Palestine on April 1, 2015 in accordance with Article 126(2).

In the meantime, however, the State of Palestine filed Article 12(3) declaration accepting the International Criminal Court’s jurisdiction

for the purpose of identifying, prosecuting and judging authors and accomplices of crimes within the jurisdiction of the Court committed in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014.

Unlike the other Article 12(3) declarations filed with the Court so far (as previously discussed here, here, and here), the Palestinian one does not identify a specific time frame within which the Court is entitled to exercise its jurisdiction. On the contrary, it specifically articulates that it “shall be valid for an unspecified period of time,” ensuring that the Court can exercise its jurisdiction within Palestinian territory until the Rome Statute enters into force on April 1, 2015. At that point, Article 12(3) declaration is likely to have little or no importance since the Rome Statute, as the later-in-time instrument, will be in force.

To follow up on our previous post, the International Criminal Court (ICC) reports in its December 8, 2014 press release that on December 5, 2014, another state, Georgia, deposited the instrument of ratification of the 2010 amendments to the Rome Statute on the crime of aggression. This ratification brings the number of ratifications of the crime of aggression amendments to a total of twenty so far. The press release further notes that Georgia “is the seventh country from the Eastern European Group to have ratified this set of amendments,” following Croatia, Estonia, Latvia, Poland, Slovakia, and Slovenia.

The crime of aggression was included in the Rome Statute in 1998 but the definition of the crime and the process by which the Court can exercise jurisdiction over this crime was not articulated until the 2010 Review Conference in Kampala, Uganda. These amendments are set to go in effect on January 1, 2017 and the Court will be able to exercise jurisdiction over the crime of aggression once thirty States Parties have ratified the amendments.

Article 8 bis (1) articulates the definition of crime of aggression as

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

Article 8 bis (2) further states that act of aggression means

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.

The definition directly draws on the principles articulated in and established by the UN Charter, namely Article 2(4). In light of the continuous situation in Ukraine and Crimea, can we expect more ratifications soon?

To follow up on our previous post, the International Criminal Court (ICC) in its December 2, 2014 press release published its annual Report on Preliminary Examination Activities conducted between Nov. 1, 2013 and Oct. 31, 2014. “Preliminary Examination” is a process by which the ICC determines whether a situation referred to it meets the legal criteria established by the Rome Statute to warrant investigation by the Prosecutor.

As the annual report explains in its introduction,

preliminary examination of a situation by the Office may be initiated on the bases of: a) information sent by individuals or groups, States, [IGOs], or [NGOs]; b) a referral from a State Party or the Security Council; or c) a declaration accepting the jurisdiction of the Court lodges pursuant to article 12(3) by a State which is not a Party to the Statute.

Article 53(1)(a)-(c) establishes that the Office shall consider jurisdiction, admissibility and the interest of justice when determining whether there is a reasonable basis to proceed with an investigation. The preliminary examination is an independent analysis of facts and information available. The ‘reasonable basis’ standard has been defined by Pre-Trial Chamber II to require that “there exists a sensible or reasonable justification for a belief that a crime falling within the jurisdiction of the Court has been or is being committed.”

During this past year, the ICC conducted preliminary examination in eleven situations: Afghanistan, Central African Republic, Colombia, Georgia, Guinea, Honduras, Iraq, Nigeria, Republic of North Korea, Registered Vessels of Comoros, Greece and Colombia, and Ukraine. In three situations the preliminary examination has been concluded. The Court found reasonable basis to proceed with an investigation into the Situation in the Central African Republic II and announced the opening of new investigation. Two situations (Republic of North Korea and Registered Vessels of Comoros, Greece, and Cambodia) were closed because the Prosecutor did not find reasonable basis to proceed with investigation. 

There are eight situations remaining in the preliminary examination stages. Five (Afghanistan, Colombia, Georgia, Guinea, and Nigeria) situations are in the third phase of examination when the Office considers admissibility by looking at the complementarity and gravity principle articulated in article 17. Three (Honduras, Iraq, and Ukraine) situations are in the second phase when the Office considers jurisdiction (temporal, either territorial or personal, and material).

With respect to the situation in Ukraine, the annual report outlines the Office’s activities since the situation was referred to the Court via article 12(3) declaration and it states that it focused on “gathering available information from reliable sources in order to assess whether the alleged crimes fall within the subject-matter jurisdiction of the Court.” The Office requested information from the Government of Ukraine, from representatives of Ukrainian civil society, delegation of members of the Ukrainian Parliamentary Committee on the Rule of Law and Justice, and the Office also conducted a mission in Kiev. The Office concludes that it will continue to

gather, verify, and analyse” information to determine whether “there is a reasonable basis to believe that crimes within the jurisdiction of the Court have been committed during the Maidan event in Ukraine.

POST WRITTEN BY: Lissa Griffin, Professor at Pace Law School & Rafael Wolff, Federal Judge in Brazil and SJD candidate at Pace Law School.

A recent editorial and recent articles in The New York Times address the growing use of undercover agents and their necessarily deceptive practices. The New York Times now reports that the use of undercover operations has expanded “with officers from at least 40 agencies posing as business people, welfare recipients, political protesters and even doctors or ministers to ferret out wrongdoing….” The justification is the efficiency and cost-savings over traditional investigation through tips, legwork, interviews, search warrants, and surveillance. No probable cause or search warrant is required.

Is such widespread deception part of our culture?

Maybe it’s just one of the choices we have to make given our Constitution. Our historic fear of centralized authority and the accompanying protection of the individual against government intrusion makes some other more overt investigatory techniques unavailable to us. Thus, for example, in the United Kingdom, recent terrorist legislation improved the Government’s ability to investigate and prevent terrorism by extending the permissible periods of pre-charge detention. Imminent terrorist events may now be averted by simply breaking up the terrorism groups, and enhanced questioning can be accomplished early on. Our bill of rights would prevent that. Thus, instead of investigating overtly, we investigate by deception.

Up until now, rules and guidelines have been inadequate. Now, apparently in response to the “Fast and Furious” undercover operation that allowed guns to travel to Mexico, the Department of Justice has  issued internal guidelines designed to “tighten oversight” of undercover operations. Before prosecutors approve of using undercover investigation, they must consider “whether an operation identifies a ‘clearly’ defined objective, whether it is truly necessary, whether it targets ‘significant criminal actors or entities,’ and other factors.” This is good.

So, does Brazil tolerate as much deception as the United States?  Our conclusion remains that Brazil’s statutory limits restrict deception and protect privacy to a much greater extent than do the US due process clause or recent agency guidelines.  Considering the efficiency of undercover operations, but considering the risks to third party privacy and even to the agent’s security, maybe Brazil needs to use more, and the United States less, of this particularly interesting investigative tool.

These articles raise questions about the scope of undercover investigations and about fair investigative tactics by government agents. An instructive comparison can be made between limits on undercover activity in the United States and in another country, for example, Brazil.

In Brazil, the use of undercover agents requires a judicial warrant authorizing the infiltration of a criminal organization. This is expressly stated by Law 11.343/06 (Article 53, I) and Law 12.850/13 (Article 10). A judge may only issue such a warrant if the government establishes: 1) evidence of organized criminal activities or narcotics offenses; and 2) it is impossible to produce the evidence by another less intrusive way (Law 12.850/13, Article 10). Those are both federal laws, as just the Federal Congress can legislate about criminal procedure. Organized criminal activity occurs when there is a criminal organization of four or more individuals that functions in a structured way and with a division of tasks, even informally, to obtain direct or indirect criminal advantage. To be considered a criminal organization, the activity should be punishable by a maximum prison sentence of more than four years. Law 12.850/12 also allows the use of undercover agents and other special investigative tools in case of transnational crime which Brazil is internationally obliged to eradicate (for sure, when the crime occurs in Brazilian soil) and transnational terrorist groups recognized by international organizations in which Brazil is a member.

The use of undercover agents is also legal in the investigation of crimes created by Law 11.343/06, that is, in investigations into narcotics crimes. This category was included by the legislature because of the considerable risk of danger in the organized narcotics business.

In addition, Law 12.850/13 requires that the conduct of the undercover agent be proportional to the goal  of the operation and provides that the agent will be criminally culpable for any excess (art. 13). The same article makes clear that the agent will not be liable if it was not reasonable to act differently in the case.  The legislation is very vague, however, leaving it to the court to fix the limits in the warrant.  For example, it will be the judge who, based on the values prescribed by the Constitution and statutes, will have to decide if it is reasonable to allow an agent to send child porn pictures during an investigation.  This is not an easy call, especially since there is no consistent case law about it.

However, interestingly, Brazil defines “undercover operations” much more narrowly than does the United States so that these strict requirements only apply to certain undercover conduct.  Brazilian statutes (Laws 11.343/06 and 12.850/13) use the term “infiltrated agent” to define the regulated investigative activity, not “undercover agent.”  Thus, the definition only applies to those operations that involve agents assuming false identities to infiltrate criminal organizations. The use of plain clothes officers to buy drugs without the use of a false identification would not be regulated by the statute. In such cases, the need for a warrant is not even discussed in the case law. (STJ, AgRg no AREsp 1.956/SP, Rel. Ministra MARIA THEREZA DE ASSIS MOURA, SEXTA TURMA, julgado em 21/06/2011, DJe 01/07/2011). Thus, the kind of conduct reported in The Times, for example –  the presence of a police officer in the middle of a political protest –  would not be considered conduct by an “infiltrated agent,” as long as a false identity is not used to allow infiltration in a criminal organization. On the other hand, an officer who pretends to be a child to uncover a criminal organization involving pedophilia in the internet, for example, would indeed be subject to the warrant requirement.

From the defense perspective, there is protection against entrapment (article 17 of the Brazilian Criminal Code). For example, a defendant will not be liable for possessing a child porn photo sent by an undercover agent if the court finds the defendant was entrapped. However, this defense will not protect the Defendant if he possesses other photos, for example.

In the United States, of course, police and prosecutorial use of undercover agents is limited only by the broad and permissive boundaries of the due process clause. SeeUnited States v. Cuervelo, 949 F.2d 559 (2d Cir. 1991). Unlike Brazil, in the United States there is no requirement of a warrant or of judicial supervision of any kind regarding undercover agents. In fact, the Supreme Court has made clear that the use of undercover agents – even when the agent wears a wire – does not constitute a “search” under the Fourth Amendment. Lopez v. United States, 373 U.S. 427 (1963); On Lee v. United States, 343 U.S. 747 (1952); Hoffa v. United States, 385 U.S. 293 (1966); and United States v. White, 401 U.S. 745 (1971). As the Court has reasoned, betrayal by ones associates is always a risk, so there is  no  expectation of privacy in those interactions if they involve an undercover agent. Given that there is no “search,” there is no warrant requirement or a requirement even of probable cause or reasonable suspicion to use undercover agents to obtain evidence. Nor are there any statutory limits to the practice. The only limitation is whether an undercover officer’s behavior “shocks the conscience” of the court. Readers will remember the stomach-pumping case that actually did shock the conscience of the Supreme Court. Rochin v. California, 342 U.S. 165 (1952).

The Sixth Amendment right to counsel, which attaches after arraignment, may limit the use of undercover agents – but only after charges have been brought and the defendant has been arraigned. That is because, under Massiah v. United States, 377 U.S. 201 (1964), and its progeny, law enforcement may not contact a defendant without going through defense counsel.

In the United States, now, there is not likely to be a consensus for restricting the use of undercover agents, although the discussion of this issue in the press is interesting. New York Times reports that the use of undercover agents is widening and now extends anywhere from sending fake protesters to demonstrations in front of the Supreme Court to creating false identities for doctors and ministers to investigate welfare or other fraud. Until now, at least, we have balanced our interests in privacy, our separation-of-powers-based willingness to give our prosecutors and police tremendous discretion in law enforcement, and our desire for crime control in favor of discretion and crime control. Brazil’s restriction of undercover intrusions to cases involving organized crime, narcotics, terrorism and other transnational crimes that are the object of international treaties – to seriously dangerous organizational criminal behavior that is – should command our attention. Maybe we should tailor the intrusion to protect against serious criminal conduct while protecting the increasingly shrinking sphere of privacy for the rest of us. Certainly, Brazil’s requirement of a showing that there is no less intrusive means to secure the evidence sought should not be a seriously difficult evidential burden. Given the U.S. courts’ willingness to impose only the most nominal restrictions, the way to do this, of course, would be the way Brazil accomplished it – through legislation.

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

On December 10 and 11, 2014, Pre-Trial Chamber I of the International Criminal Court (ICC) issued decisions calling for delivery to the ICC of two persons under its arrest warrants.

The December 10 finding of non-compliance by Libya, under article 87(7), relates to Saif al-Islam Gaddafi, for whom the ICC issued an arrest warrant in May 2011, charging him with crimes against humanity allegedly committed by Libyan security forces under his command during anti-government protests. The December 11 decision on the admissibility relates to Simone Gbagbo, for whom the ICC issued an arrest warrant in February 2012, charging her with responsibility for crimes against humanity regarding violence committed by government forces against political opponents of her husband, former President Laurent Gbagbo, relating to the November 2010 Ivory Coast presidential election.

Ivory Coast was asserting its right under Rome Statute articles 17 and 19 to challenge the admissibility of Simone Gbagbo’s case on the ground that it was prosecuting her for the same crimes charged in the ICC arrest warrant. In the Gaddafi case, ICC courts had previously rejected Libya’s challenge to the admissibility of the ICC case against him and reminded Libya of its obligation to surrender him to the Court. Libya is not a State Party to the Rome Statute, but in February 2011 the U.N. Security Council acting under its Chapter VII powers issued a Resolution 1970 referring the Libyan situation to the Court and requiring Libyan authorities to fully cooperate with the ICC. The issue before the Court was whether Libya failed to comply with this obligation.

In the Ivory Coast situation, as blogged about earlier, the ICC issued arrest warrants against Ivory Coast nationals Laurent Gbagbo, Simone Gbagbo, and Charles Blé Goudé – all on the same charges relating to the same events. The Ivory Coast government chose to surrender Laurent Gbagbo and Charles Blé Goudé to the ICC, but not Simone Gbagbo. The government’s reasons for this selection are not fully apparent from court documents. Nevertheless, the Ivory Coast decided to challenge the admissibility of Simone Gbagbo’s case. The Court rejected this challenge, finding that the Ivory Coast government failed to show that it was investigating and prosecuting Gbagbo for the same criminal conduct alleged by the ICC Prosecutor. The Court concluded that Ivory Coast must “surrender Simone Gbagbo to the Court without delay.”

With respect to the Gaddafi case, the Court found that Libya failed to comply with repeated requests to deliver Gaddafi to the Court and also failed to comply with requests to return to the Defense privileged documents that Libyan authorities had seized from Gaddafi’s defense counsel. Determining that Libya was depriving the defendant of his rights and preventing the Court from fulfilling its mandate, the Court, under article 87(7), referred the matter to the Security Council, so that the Council may consider measures to secure Libya’s compliance.

ICC had previously utilized article 87(7) to inform the Security Council of the failure of authorities in Chad, Malawi, and the Democratic Republic of the Congo to arrest and surrender Sudanese President Omar al-Bashir, for whom ICC issued arrest warrants charging him with responsibility for war crimes, crimes against humanity, and genocide, committed during the conflict in Darfur. Al-Bashir remains at large.

In the week preceding the Gaddafi finding, the Trial Chamber V(B) rendered Decision on Prosecution’s application for a finding of non-compliance under article 87(7) stating that the Government of Kenya, a State Party to the Rome Statute, had breached its treaty obligation by failing to provide the Prosecutor with access to information necessary for the case against Kenyan President Kenyatta on charges of crimes against humanity committed during the 2007-2008 post-election violence in Kenya. As a result of Kenya’s breach, ICC Prosecutor Bensouda withdrew the charges against Kenyatta without prejudice. In a December 5, 2014 press release, Bensouda stated that this was “a painful moment for the men, women and children who have suffered tremendously from the horrors of the post-election violence, and who have waited, patiently, for almost seven years to see justice done.”

The Kenyatta, al-Bashir, Gaddafi, and Simone Gbagbo cases illustrate the difficulties the ICC confronts in carrying out its responsibilities to prosecute grave international crimes.

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

On November 12, 2014, ICC Prosecutor Fatou Bensouda presented the U.N. Security Council with a report on “the deteriorating situation” in Libya, calling the Council’s attention to several disturbing matters that the OTP is confronting in its work in Libya.

The Security Council referred the situation in Libya to the ICC in 2011, pursuant to the authority accorded to it by Article 13(b) of the Rome Statute and by Chapter VII of the U.N. Charter. This was the second time the Council referred a situation of violent internal conflict to the ICC; the first time was in 2005, with respect to the violence in Darfur, Sudan. The ICC Prosecutor has been pursuing cases against several suspects in both of these situations.

In both, the ICC has encountered severe difficulties in carrying out its responsibilities. With respect to the Darfur situation, four of the suspects subject to ICC arrest warrants remain at large. As noted here, earlier this year the Prosecutor asked the Council for further assistance in dealing with the failure of several countries to execute the ICC arrest warrant for Sudan President Omar al-Bashir. As noted here, in April 2014 the ICC Pre-Trial Chamber issued a rebuke to the Democratic Republic of the Congo for failing to arrest al-Bashir when the Chamber, having advance notice of al-Bashir’s visit to the DRC, issued a request to the DRC for his arrest. The DRC is a State Party to the Rome Statute; Article 86 of the Statute requires that “State Parties shall … cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.”

With respect to the Libya situation, Prosecutor Bensouda advised that despite elections in Libya in June 2014, political instability is increasing as two governments vie for legitimacy. She also noted that there have been several assassinations and numerous threats made against human rights workers, judges, prosecutors, and others. She reported that the deteriorating security situation in the country is making it very difficult for her Office to pursue its work, including, among other matters, the Office’s ability to investigate “new instances of mass crimes allegedly committed by the rebel forces.”

The Prosecutor expressed her Office’s “great concern” regarding “the continued failure of the Government of Libya to surrender Saif Al-Islam Gaddafi to the custody of the International Criminal Court.” On June 27, 2011, the ICC issued an arrest warrant for Saif Al-Islam Gaddafi on two counts of crimes against humanity but he remains at large. Regarding Abdullah Al-Senussi, whom the ICC previously sought for prosecution, the Prosecutor stated that because of the on-going violence in Libya that may endanger the possibility of a fair trial for Al-Senussi, she may apply for review of decisions by ICC courts deferring to Libya’s prosecution of him.

Prosecutor Bensouda called upon Libya for cooperation, and she stated that “the international community could be more proactive in exploring solutions in order to tangibly help restore stability and strengthen accountability for Rome Statute crimes in Libya.”

The Prosecutor’s October 23 and November 12 statements to the Security Council suggest that ICC prosecutions of cases following a Security Council referral are encountering difficulties that go beyond those encountered by prosecutors authorized to prosecute cases in the ad hoc tribunals established through Security Council resolutions prior to the Rome Statute’s entry into force in 2002. If the ICC is to be able to carry out its responsibilities – especially with regard to Security Council referrals – the Prosecutor seems to be correct that additional support for the ICC will be needed from the Security Council, from States affected, and from the international community in general.

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