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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.

On July 16, 2015, a 2-1 majority of Pre-Trial Chamber I issued a strongly worded decision finding what it termed numerous “material” errors in the ICC Prosecutor’s decision not to open a formal investigation of war crimes allegedly committed by members of the Israeli Defense Forces (IDF) in May 2010 when they intercepted and boarded ships that were attempting to penetrate Israel’s naval blockade of Gaza.

As I mentioned in an earlier post, on November 6, 2014 the ICC Prosecutor issued a report explaining that after months of review, she declined to open a formal investigation of the matter. The report was issued under Article 53(1) of the Rome Statute in response to a request of ICC State Parties, including the Union of Comoros, whose vessels were boarded by the IDF during the May 2010 incident. The report concluded that although there was a reasonable basis to believe that members of the IDF willfully killed ten of the 500+ passengers on one of the vessels, caused serious injury to several others, and committed outrages upon personal dignity of others, a formal investigation was unwarranted because the crimes involved, given the surrounding circumstances, would fail to meet the gravity requirement of Article 17(1)(d) of the Rome Statute.

In January 2015, the Union of Comoros invoked the opportunity provided by Article 53(3)(a) to request the Pre-Trial Chamber seized of the matter to review the Prosecutor’s decision not to proceed and to request reconsideration of the decision. Comoros’s application challenged several conclusions in the Prosecutor’s report.

In its July 16, 2015 decision, the Chamber’s majority discounted some of these challenges but agreed with several others regarding the Prosecutor’s alleged failure to properly address factors relevant to the gravity determination.

Addressing standard of review, the majority stated that a request pursuant to Article 53(3)(a) requires a Chamber “to exercise independent judicial oversight” and apply “exacting legal requirements.” It added that “[i]n the presence of several plausible explanations of the available information,” the Prosecutor must open an investigation so that she can “properly assess the relevant facts.”

Applying this standard, the majority faulted the Prosecutor for at times deciding against investigation of matters on which there were conflicting claims. Of particular importance, the majority suggested that the Prosecutor may have “willfully ignored” credible evidence that the IDF fired upon one of the vessels prior to boarding. Such evidence, if established, would support the proposition that there was a systematic plan to attack civilians on that vessel.

Accordingly, the Chamber issued a request to the Prosecutor to reconsider her decision not to investigate the situation.

The Chamber’s decision involves procedural issues regarding a Chamber’s Article 53(3)(a) review that will have to be resolved in the future. In his dissenting opinion, Judge Péter Kovács argued that, among other failings he perceived, the majority “introduced for the first time a standard for reviewing negative decisions undertaken [by a prosecutor pursuant to Article 53(1)] without explaining the legal basis for its endorsement.” In Judge Kovács’s view, “the Pre-Trial Chamber’s role is merely to make sure that the Prosecutor has not abused her discretion in arriving at her decision not to initiate an investigation ….” Reviewing the evidence and submissions, he concluded that the Prosecutor did not abuse her discretion in this matter.

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In his most recent Huffington Post blog post titled Did the Rosenberg Prosecutors Suborn Perjury?, Prof. Gershman raises a question about prosecutors suborning perjury based on the recently released grand jury testimony of David Greenglas, Ethel Rosenberg’s brother and prosecution’s witness. It is a fascinating read – check it out! 

POST WRITTEN BY: Jessica Mlinar (’16), J.D. Pace Law School

Northern Ireland passed a law on June 1, 2015 making “buying sex” a criminal activity. “If convicted, a person could be fined, sentenced to a maximum of one year’s imprisonment, or both. It remains an offense to keep or manage a brothel, but the new law removes criminality from soliciting in the street or public place.” The efforts stem from the idea that the correct way to minimize prostitution and other activities of that nature is to decrease the demand for them rather than punish the prostitute. Andrea Matolcsi, a spokeswoman for Equality Now, which is an international women’s rights group, wholeheartedly supports these efforts. In her opinion, “the legalization and decriminalization approach is not benefiting anyone.”

By the same token, other countries believe that the best approach is to legalize both the selling and buying of sex, largely due to the fear that passing laws turning purchasing sex into a criminal activity will cause more harm than good. Buying sex is not a novel idea; it has been around for decades and any controversial move may consequently drive the activity underground. Additionally, it is feared that  strict laws outlawing these activities will increase violence against women.One sex worker, Katie McGrew, explains a concern that this new law will lead to “situations where more women are competing for fewer clients [which] has dangerous consequences, including charging less, offering services they wouldn’t have previously, and agreeing to unsafe sex.”

Further, the migration of the newly criminalized activity presents another problem. The Immigrant Council of Ireland stated that there was no doubt that men would “make the short journey over the border in order to escape the law.” Some believe that this movement has already begun and is evidenced by the increase in advertisements in the over-the-border areas.

Nonetheless, other countries such as France and Irish Republic are considering enacting similar legislation that criminalizes the conduct of a client, while protecting women who are in the business of providing sex. “ The Nordic Model” (social and economic model of the Nordic countries which makes purchasing sex a criminal activity) has been adopted in Canadaand Sweden, as well as Norway. Only time will tell which one of the two mainstream routes proves to be more successful.

In my view, this worldwide issue does not have a single solution. It is clear that authorities themselves struggle to figure out which approach works the best. This is because no one model has proven to be one hundred percent effective. Nonetheless, I believe that adopting the Nordic model is the right way to go. Passing a law criminalizing this undesirable activity shows just how important it is for Northern Ireland to manage and limit prostitution, or rather criminalize purchasing sexual services. Decriminalization can often be perceived as giving up, rather than as a way of taking control and fighting harder.

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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.

On July 1, 2015, the N.Y. Court of Appeals issued a 5-1 ruling regarding a prosecutor’s comments on summation that may overstate the probative value of DNA evidence presented at trial and defense counsel’s obligation to object to such comments. People v. Wright, No. 109, 2015 N.Y. Slip Op. 05621 (July 1, 2015).

The case involved the murder and alleged rape of a woman in Rochester, N.Y., who was found dead of strangulation by means of a ligature, shortly after she had sexual intercourse. A Monroe County prosecutor pursued charges of intentional murder, felony murder, and rape. Defense counsel admitted in opening statement that defendant had intercourse with the victim around the time in question, but argued that this intercourse was consensual. Counsel also vigorously opposed the murder charges.

In its case in chief, the prosecution called three expert witnesses who testified about the potential scientific value in general of the different methods of DNA testing they employed. The experts also carefully explained the limited probative value that could be deduced from their analysis of the ligature and items relating to the victim’s sexual intercourse.

The jury rejected the rape and felony murder charges, but convicted the defendant of intentional murder, pursuant to Penal Law § 125.25(1). The trial court imposed a sentence of 25 years to life. By a 3-2 vote, the Appellate Division affirmed. People v. Wright, 982 N.Y.S. 2d 219, 115  A.D. 3d 1257 (App. Div. 4th Dep’t 2014).

In the July 1 ruling, all six Court of Appeals judges who participated in the case (including especially dissenting Judge Eugene Pigott) credited defense counsel for effectively eliciting from the prosecution’s expert witnesses during cross-examination the limited probative value their testimony provided regarding identifying the defendant as the person possibly responsible for the murder. The appeal therefore focused decisively on statements made by the prosecution on summation and defense counsel’s response (or lack thereof) to such comments.

Upon review of the record, the Court’s majority held that during summation the prosecution prejudicially overstated the probative value of the DNA evidence its own witnesses provided relating to the circumstances of the case. The Court identified several instances in which the prosecutor told the jury that expert testimony conclusively showed that defendant’s DNA was a match for that found on the ligature. The Court noted that these comments contravened what the experts had in fact stated: that DNA analysis was only able to show that the defendant’s DNA could not be excluded from that found on the ligature.

The Court determined that the prosecutor’s “apparent intent was to persuade the jury that the DNA established that defendant had committed the rape and murder, when the evidence did not, and could not, dispositively establish his guilt.” The Court further held that defense counsel provided ineffective assistance because it could not identify any tactical reason to excuse counsel’s “multiple failures” to object to the prosecutor’s “numerous misrepresentations of the evidence.”

In support of its ruling, the majority noted the significant impact that DNA evidence may have on a jury’s deliberations. It further concluded that aside from the expert testimony, evidence produced at trial was insufficient to support defendant’s conviction for second degree murder. Accordingly, the Court reversed the Appellate Division and remanded the case for a new trial.

We are very excited to feature Prof. Michael B. Mushlin’s latest law review article in which he compares Kafka’s fictitious world of punishment to the current state of solitary confinement in the United States. Prof. Mushlin has extensive experience in the field of prisoner’s rights work and specific issues such as solitary confinement.

POST WRITTEN BY:  Erica Danielsen (’16), J.D. Pace Law School

Franz Kafka lived in the Austria-Hungarian empire, in what is now Czech Republic, and wrote fiction stories in German during the 20th century. In 1914 Kafka wrote In the Penal Colony, a story describing a torture and execution device used in a mythical prison’s operation system. The machine would carve the sentence of a condemned prisoner on his skin before killing him over the course of twelve hours. The use of this machine only came to an end when a “Traveler,” an outsider invited to the penal colony, condemned its use by expressing, “I am opposed to this procedure.” Without the Traveler having been allowed to enter and observe what occurred in the penal colony no change to the system would have taken place.

For the 100th Anniversary of Kafka’s work, Prof. Muslin wrote, “I Am Opposed To This Procedure:” How Kafka’s In the Penal Colony Illuminates the Current Debate About Solitary Confinement and Oversight of American Prisons. The article, which is published in the Oregon Law Review, compares the use of the penal colony’s machine to the current use of solitary confinement in American prisons. Both the penal colony’s machine and solitary confinement inflict great psychological and physical pain on the people subjected to it. Additionally, both are seen as essential to the operation of the prison system yet neither would see change without an outside perspective into its use.

This article first recounts Kafka’s story In the Penal Colony and describes how Kafka’s professional life as an attorney might have influenced his story. It then provides a description of the American prison system focusing on two important aspects: the massive use of solitary confinement and the lack of meaningful oversight. The article is then brought together with a discussion of how Kafka’s profound insights, so powerfully set out in In the Penal Colony, can help society today understand why prison doors must be opened to outside scrutiny and why the rampant use of solitary confinement in the United States must end just as the penal colony’s machine was put to an end.

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In response to the growing controversy over detaining arrestees simply because they do not have the money to post bail, NYC has acted to eliminate bail for some low level offenders. For more details, see Rick Rojas, New York City Introduces Bail Reform Plan for Low-Level Offenders, New York Times (Jul 8, 2015).

POST WRITTEN BY: Professors Peter Widulski and Bennett L. Gershman

In April 2011, a man exited a subway train at a station in Manhattan and encountered a police sergeant and two other police officers. The officers reported that the man shouted obscenities and gesticulated at them and accused them of blocking his access to a stairway to an upper platform. They further reported that the man continued to swear at them as the sergeant followed him up the stairs. The sergeant reported that his intention in following the man – subsequently identified as Richard Gonzalez – was to issue Gonzalez a summons for disorderly conduct. While following Gonzalez, the sergeant noticed the handle of what appeared to him to be a knife in Gonzalez’s back pocket. After detaining Gonzalez on suspicion of disorderly conduct, the sergeant seized the item in Gonzalez’s back pocket and determined that it was a “gravity knife” because the blade in the handle snapped and locked into place upon flicking the wrist holding the handle. Under New York’s Penal Law it is a crime to possess a “gravity knife.”

The Manhattan District Attorney’s Office indicted Mr. Gonzalez for criminal possession of a weapon in the third degree, pursuant to Penal Law § 265.02 (1), which, in conjunction with Penal Law § 265.01 (1), subjects a defendant to third degree criminal possession of a gravity knife, a felony, if the defendant was previously convicted of a crime. Prior to trial, the defendant moved to suppress evidence of his possession of the knife on the ground that his detention for disorderly conduct was unlawful, and therefore the seizure of the knife was the fruit of the unlawful arrest. The defendant’s motion was denied, and a jury subsequently convicted him of third degree criminal possession of a weapon. He was sentenced to 3 ½ to 7 years in state prison.

On appeal, a five-judge panel of the Appellate Division, First Department, unanimously held that the facts supported probable cause to arrest the defendant for disorderly conduct. People v. Gonzalez, 112 A.D.3d 440 (1st Dep’t 2013). The court further unanimously held that the only mens rea element the prosecution had to prove regarding possession of a gravity knife was that the defendant knew he possessed a knife “in general,” rejecting defendant’s argument that the prosecution needed to prove that he knew the knife he possessed had the characteristics of a gravity knife.

Leave to appeal to the Court of Appeals was granted, and on April 28, 2015, the Court of Appeals heard oral arguments in the Gonzalez case at the Judicial Institute on the campus of Pace Law School. Although the parties argued both the probable cause issue and the mens rea issue, it appeared to us that the Court’s questions focused primarily on the issue of whether the prosecution needed to prove that the defendant knew that he possessed a knife with the characteristics of the prohibited “gravity knife.” And to observers, it appeared that the Court was clearly troubled by this issue. Gonzalez’s appellate counsel informed the Court of the undisputed facts that Gonzalez had purchased the knife – a “Husky” brand utility knife which he used in his long-time work as an independent contractor – at a Home Depot store some five years earlier. Counsel argued forcefully, and several of the judges appeared to accept the argument – that fairness required the prosecution to prove that Gonzalez knew that the knife he lawfully purchased for his work had the characteristics of a gravity knife. Indeed, in watching the back and forth, we were reminded of the famous Supreme Court decision, Morissette v. United States, 342 U.S. 246 (1952), taught in every first-year law school class, in which Justice Robert Jackson wrote: “A relation between some mental element and punishment for a harmful act is almost as instinctive as the child’s familiar exculpatory ‘But I didn’t mean to,’ and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution.”

In the face of the persistent and probing questions put to her by several of the judges, the prosecutor argued that the Legislature intended only that a person know simply that he possessed a knife, not whether the knife had the characteristics of a prohibited weapon. When Judge Eugene Pigott pressed her with hypothetical situations in which someone might possess quite innocently a lawfully purchased gravity knife, counsel stated that prosecutorial discretion might be used to avoid unfair prosecutions. Judge Pigott responded by noting that such discretion could lead to discriminatory results, based perhaps on a prosecutor’s consideration of the defendant’s race, or other improper considerations.

In a decision issued on June 15, 2015, the New York Court of Appeals unanimously reversed. But the Court reversed the Appellate Division not on the weapon possession issue but on the ground that “there is no record support for the motion court’s determination that defendant’s rant against the police officers constituted the crime of disorderly conduct.” Thus, the Court was able to avoid addressing the troubling issue regarding whether there is any mental culpability requirement for possession of a weapon, besides the requirement that the person know he possesses an object, which turns out to be a prohibited item.

Why courts avoid decisions on some issues really goes to the heart of the judicial process. Courts typically do not reach out to decide difficult-to-resolve questions if they do not have to. This is especially true when a court confronts issues relating to the legitimacy of a statute, or an interpretation of a statute that may break new ground. Clearly, the weapons issue in Gonzalez was a broader and much more difficult question than the detention issue, a purely legal question. The Court ducked the weapons issue knowingly, and probably with the knowledge that it would confront a similar issue again, and on a record making a resolution more likely.

POST WRITTEN BY: Steven Lapkoff (’16), J.D. Pace Law School

The fallout from the U.S. Supreme Court’s decision in Riley v. California, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014), has already changed police practices regarding the search and seizure of a cell phone that is held incident to an arrest. Before Riley, a police officer could search the cell phone of an arrestee for incriminating information or to expose the identities of accomplices. The Riley decision held that “[m]odern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’” The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.” Riley, 134 S. Ct. at 2495. In so doing, the court made clear that the vast quantities of personal information could only be searched when accompanied by a proper warrant.

However, recent advances in encryption technology are out-pacing the ability of courts and legislatures to adapt, increasingly putting the contents of smartphones outside the reach of the police and courts even when searches are authorized by warrant. The stated aim of this new technology is to “lock out the government,” regardless of the Riley decision.

Apple, maker of the iPhone, which uses the iOS software platform, has upgraded its encryption standard to the point that it claims is “unbreakable,” and the company does not have the ability to unlock a user’s phone even when requested to do so by government entities. Google, which distributes the competing Android platform to smartphone manufacturers, has also decided to encrypt its phones by default.

This has lead to a situation that the FBI has termed “The Black Box” or “Going Dark.” The argument goes, that if a smartphone cannot be accessed even under a lawful court order, then kidnapped children will go un-rescued and drug kingpins will go un-caught. Criminals’ secrets can then be stored worry-free, in these “black boxes” far from the reach of the police and courts. The FBI has gone so far as to demand that the tech companies implant “back door” access for police and courts to ensure continued access to users’ data.

The tech companies have responded that such scare scenarios are “inflammatory and inaccurate,” and that any “back doors” provided to the government would inevitably be exploited by opportunistic hackers. They point out that the “metadata,” data about who a person calls and texts from a smartphone, is accessible elsewhere, and that society’s expectations of privacy have fundamentally changed as more and more people shift a greater portion of their private lives onto their smartphones.

The editorial commentary in the media has come down strongly on the side of the technology companies. Wired further notes that “none of the criminal cases cited by [FBI Director] Comey meet that hypothetical because in real life those instances would be extremely rare and far outweighed by the clear public benefit of preventing the very real threat of a large-scale data breach that could affect millions of Americans.”

In the ongoing debate between security and privacy, the inexorable forward march of technology may leave the courts behind.

Related Reading:

POST WRITTEN BY: Marina Gubenko (’16), J.D. Pace Law School

The release of Google Glass to the general public comes with an issue attached – is it safe and legal to use while driving? Google Glass is a hands-free device that has the same capabilities as a smartphone and allows the user to surf the internet, send texts, and scroll through social media. Google Glass is like having a tiny computer in front of your face all the time.

New York State prohibits a person from using any portable electronic device while the car is in motion. N.Y. Vehicle and Traffic Law § 1225-d (McKinney 2014). Google Glass would seemingly fall under the NY statutory definition of portable device, which defines it as “any telephone, PDA, device with mobile data access, laptop, pager, messaging device, game, portable computing device, ‘or any other electronic device when used to input, write, send, receive, or read text for present or future communication.’” In examining whether Google Glass is legal to use while driving in New York, it is important to point out that the New York law prohibits use of any portable device while the vehicle is in motion. Considering a cellphone, it would be relatively easy for a police officer to observe if a driver operating a vehicle is holding a cellphone and doing something on it. However, with Google Glass functioning as glasses, a police officer would have a harder time deciphering if in use while the driver operates a vehicle.

In California, use of a telephone or electronic device is prohibited while driving unless the device is equipped to be hands-free. Cal. Vehicle Code § 23123 and § 23123.5 (West 2014). Additionally, a person is prohibited from driving a car when their vision is obstructed by “a television receiver, a video monitor, or a television or video screen….” Cal. Vehicle Code § 27602 (West 2014). Google Glass fits that definition; it is a monitor that is constantly in front of the driver. To violate this provision, the police officer needs to proffer evidence that Google Glass was on and being used while the person was driving. In 2014, a woman was pulled over and cited in San Diego, CA for wearing Google Glass while driving. The officer cited her under § 27602. According to a CNN news article, the case was dismissed because the evidence was insufficient to show that Goggle Glass was turned on at the time the woman was driving.

It has been argued that Google Glass is safer than using your phone while driving because a driver does not need to take hands off the wheel. However, a study conducted by the University of Central Florida showed that the reaction time between a Google Glass user and cell phone user in avoiding accidents was about the same.

The bottom-line is that Google Glass is a distraction when operating a motor vehicle. States are seeing the necessity of enacting new legislation to ban Google Glass while driving, and making sure that the new laws specifically include a device such as Google Glass. As of 2014, at least 7 states had proposed legislation. For example, NY Assembly Bill 02729 “prohibits the operation of a motor vehicle while using a wearable computer with a head-mounted display.” This bill is aimed to address ocular technology such as Goggle Glass. Moreover, another NY Assembly Bill 04879 seeks to expand the current definition of portable electronic device to include Google Glass.

Going back to the issue of enforcement; since it appears to be difficult for police officers to determine whether Google Glass was operational and in use while driving, it seems that to ensure safety, the easiest solution is to prohibit wearing it while driving all together. Have we become a society that is unable to tear ourselves away from the virtual world? Are we willing to forego public safety so we can have a piece of technology attached to our heads and stay ‘connected’?  We shouldn’t need laws to answer that.

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 May 27, 2015, the Appeals Chamber of the International Criminal Court (ICC) issued a decision confirming that the ICC case against Ivory Coast national Simone Gbagbo is not jurisdictionally barred to the ICC because of efforts undertaken by Ivory Coast to conduct its own criminal investigations against her.

As discussed in our previous post, the ICC confronted a situation regarding the three Ivory Coast nationals for whom it issued arrest warrants, all of whom were charged with responsibility for alleged crimes against humanity (including murder, rape and other forms of sexual violence, persecution and other inhumane acts) committed by supporters of defeated President Laurent Gbagbo against civilians in the aftermath of the Ivory Coast presidential election in November 2010. This violence resulted in the death of more than three thousand people.

Pursuant to the ICC arrest warrants, Ivory Coast (Côte d´Ivoire) authorities delivered Laurent Gbagbo and militia commander Charles Blé Goudé to The Hague for ICC prosecution on the crimes alleged in the warrants. But Ivory Coast refused ICC orders to deliver Simone Gbagbo and instead asserted that, pursuant to Articles 17 and 19 of the ICC Statute, her case was not admissible to the ICC on the ground that Ivory Coast was investigating and preparing to prosecute her.

After reviewing Ivory Coast’s arguments and supporting documents, an ICC Pre-Trial Chamber rejected the admissibility challenge because the Chamber determined that although Ivory Coast submitted evidence indicating that it was investigating Ms. Gbagbo for economic crimes, crimes against the State, and certain other matters, it was not prosecuting her for the crimes against humanity for which the ICC sought to prosecute her.

Ivory Coast appealed this decision in an effort to deny ICC jurisdiction over Ms. Gbagbo. In arguments to the Appeals Chamber, it employed several tactics, which included (1) submitting evidence of its investigative actions against Ms. Gbagbo that it undertook after the Pre-Trial Chamber’s decision, (2) attempting to challenge several points made by the Pre-Trial Chamber not as factual findings but as legal rulings (which would require more exacting review by the Appeals Chamber), and (3) characterizing acts for which it was investigating Ms. Gbagbo as “preparatory acts” for crimes within ICC jurisdiction.

In addition to Ivory Coast’s arguments, the Appeals Chamber considered arguments by all other concerned Parties. Given the Pre-Trial Chamber’s findings that procedural activities undertaken by Ivory Coast judicial authorities were “sparse and disparate” and did not cover the serious matters that the ICC sought to prosecute, it is perhaps not surprising that Ms. Gbagbo advanced arguments “fully supporting the Appeal.” On the other hand, the ICC Prosecutor and the Office of Public Counsel for Victims (representing victims of the Ivory Coast violence) provided arguments supporting the ICC’s admissibility of the case.

In its May 27 decision, the Appeals Chamber rejected all of the arguments submitted by Ivory Coast and by Ms. Gbagbo and confirmed the Pre-Trial Chamber’s decision that the ICC case against Ms. Gbagbo is admissible.

In rejecting Ivory Coast’s submission of evidence of its investigations subsequent to the evidence it presented to the Pre-Trial Chamber, the Appeals Chamber stated that by making such submissions Ivory Coast was “attempt[ing] to seek a new ruling on admissibility, rather than a review of the proceedings before the Pre-Trial Chamber.” The Appeals Chamber noted that under Article 19(4), “[t]he admissibility of a case … may be challenged only once.” Accordingly, the Chamber held that Ivory Coast couldn’t use this additional information to support what would in effect constitute a second challenge to admissibility. However, an ICC press release reporting on the Appeals Court’s decision notes that Article 19(4) also states that “[i]n exceptional circumstances, the Court may grant leave for a challenge to be brought more than once.”

Ivory Coast became a State Party to the ICC in February 2013. Article 89 of the Rome Statute requires “State Parties [to] comply with [ICC] requests for arrest and surrender.” It will be interesting to see whether Ivory Coast complies with this obligation, or whether it seeks to make use of the “exceptional circumstances” provision to make a second challenge to the admissibility of this case.

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