3.2.1 Present Circumstances
Although not many Asian states have made much headway toward ICC participation, four situations geographically belonging to the Asian region have been or are the subject of preliminary examinations by the ICC OTP, and they fall within different phases of pre-investigation in accordance with the OTP’s classifications.
The OTP has publicly proclaimed that “the Office has established a filtering process comprising four phases.”
19 Phase 1 consists of an initial assessment of all information on alleged crimes received under Rome Statute Article 15. Phase 2, which represents the formal commencement of a preliminary examination, is an investigation into whether preconditions to the exercise of jurisdiction under Article 12 are satisfied and whether a reasonable basis exists to believe that the alleged crimes fall within the subject-matter jurisdiction of the Court. Phase 3 focuses on the admissibility of potential cases with regard to their gravity and the principle of complementarity, while continuing to collect information on alleged new or on-going crimes. Phase 4 examines interests of justice considerations to formulate a final recommendation to the Prosecutor on whether a reasonable basis exists to initiate an investigation.
The four situations relating to the Asian region are (i) the situation of the Republic of Korea (phase 1), (ii) the situation of Ukraine (phase 2), (iii) the situation of Afghanistan (phase 3) and (iv) registered vessels of Comoros, Greece, and Cambodia (situation under reconsideration).
3.2.2 Situation of the Republic of Korea
First, on 6 December 2010, the ICC OTP announced that it had opened a preliminary examination to evaluate whether two incidents that occurred in 2010 in the Yellow Sea, namely the sinking of a South Korean warship, the
Cheonan, on 26 March 2010 and the shelling of South Korea’s
Yeonpyeong Island on 23 November 2010, could amount to war crimes under the jurisdiction of the Court.
20 The OTP found that the contextual requirement of the existence of an international armed conflict was met in this situation by the alleged launching of a torpedo at the
Cheonan and the launching of artillery shells onto
Yeonpyeong.
21 However, the Prosecutor concluded that, based on a thorough legal and factual analysis of the information available in June 2014, the statutory requirements for seeking authorization to initiate an investigation of the situation in the Republic of Korea had not yet been satisfied.
22
As to sinking of the
Cheonan, since the
Cheonan was a naval vessel and all those on board who drowned—46 sailors from the Republic of Korea—were military personnel, the OTP thought it was not a war crime to attack military objectives including naval ships or to kill enemy military personnel including sailors on a naval ship.
23
The OTP subsequently determined that the prohibition on the conclusion of an agreement suspending combat with the intention of attacking by surprise an adversary relying on it is not listed as a war crime in the Rome Statute and customary law is unclear.
24 Moreover, the OTP said that it would need to be shown that the Democratic People’s Republic of Korea (DPRK) entered into the armistice agreement of 1953 with the specific intent to conduct surprise attacks such as the alleged 2010 attack on the
Cheonan.
25
With regard to the shelling of
Yeonpyeong Island by the DPRK on 23 November 2010, the shells fired hit both military and civilian objects on the island.
26 The shelling resulted in the deaths of four people (two civilians and two military), injuries to sixty-six people (fifty civilians and sixteen military), and large-scale destruction of military and civilian facilities.
27 The OTP considered that, on balance, the available information did not provide a reasonable basis to believe that the DPRK intentionally targeted the civilian population or civilian objects.
28 Since the civilian population of the island was merely 1361, the OTP concluded that a reasonably well-informed person in the circumstances of the actual perpetrator would not have expected the civilian impact to be high.
29 Thus, the situation of Republic of Korea was closed with a decision not to investigate unless further information later became available that would lead the Office to reconsider these conclusions in the light of new facts or evidence.
30
3.2.3 Situation of Ukraine and the Downing of MH17
Although Ukraine belongs to the Eastern European region and is not an ICC State Party, its situation is under preliminary examination by the ICC and entails the downing of MH17, Malaysia Airlines flight 17, on 17 July 2014. While the state of registration of MH17 is an Asian regional state—Malaysia—she is also not an ICC State Party. The situation of the Ukraine is labelled a phase 2 situation, meaning that the preconditions to the exercise of jurisdiction and the existence of a reasonable basis to believe that the alleged crimes fall within the jurisdiction of the ICC are being considered. In terms of the jurisdictional basis for this non-State Party situation, it was not referred by the United Nations Security Council, but is based on a declaration by a non-State Party under Article 12(3) of the ICC Statute.
On 17 April 2014, the Government of Ukraine lodged a declaration under Article 12(3) of the Rome Statute and accepted the jurisdiction of the ICC over alleged crimes committed on its territory from 21 November 2013 to 22 February 2014.
31 On 25 April 2014, the OTP opened a preliminary examination on the situation of Ukraine.
32 On 8 September 2015, the government of Ukraine lodged a second declaration under Article 12(3), accepting the exercise of ICC jurisdiction in relation to alleged crimes committed on its territory from 20 February 2014 onwards, with no end date.
33 Subsequently, the Prosecutor announced that the preliminary examination of the situation in Ukraine now includes alleged crimes occurring after 20 February 2014.
34
The preliminary examination by the OTP considers that, in parallel with the existence of an international armed conflict between Ukraine and the Russian Federation beginning at the latest on 26 February 2014, there were intense anti-governmental protests in Eastern Ukrainian provinces. On 17 July 2014, a civilian Malaysia Airlines aircraft, flight MH17 from Amsterdam to Kuala Lumpur with 298 passengers and crewmembers, was shot down over Eastern Ukraine. It is alleged that some 80 of the passengers were children.
35 There were no survivors, and the crewmembers were all citizens of Malaysia. The passengers on this aircraft were from the following countries: the Netherlands (193 victims), Malaysia (43 victims), Australia (27 victims), the Republic of Indonesia (12 victims), the United Kingdom (10 victims), Germany (4), Belgium (4 victims), the Republic of Philippines (3 victims), Canada (1 victim), and New Zealand (1 victim).
36 An investigation was conducted by a joint investigation team comprising members from both some of the victims’ states and the Ukraine and, according to this joint investigation, the aircraft was shot down from a location near
Pervomaisk in territory controlled by anti-government armed groups.
37 In Eastern Ukraine, fighting has persisted for more than two years between Ukrainian government forces and anti-government elements allegedly supported by the Russian Federation.
38 The OTP has collected information about more than 800 incidents, including MH17, between February and November 2016 in the context of events in Eastern Ukraine, and the OTP continues to engage in a preliminary examination.
39 In contrast to the Rome Statute, the Convention on Civil Aviation does not provide a legal framework for individual criminal responsibility.
40 Since the shooting down of MH17 has been attributed to a likely non-state actor in the Ukraine, arguably with support from Russia, the states affected by the crash have allegedly tried to secure criminal accountability for the possible suspects rather than pursuing a compensation claim based on state responsibility.
41
By adopting Resolution 2166 (2014) on 21 July 2014, the Security Council demanded that those responsible for shooting down MH17 be held to account and that all states cooperate fully with efforts to establish accountability.
42 Since some states and civil society
activists asked for an international ad hoc tribunal, a
so-
called MH17 tribunal, or the exercise of jurisdiction by the ICC, a draft resolution to establish such an ad hoc tribunal was presented by Malaysia before the Security Council on 29 July 2015, co-sponsored by Australia
, Belgium
, Canada
, France
, Germany
, Ireland
, Israel, Italy
, Lithuania
, the Netherlands
, New Zealand
, the Philippines, Romania
, Spain
, Ukraine, the United Kingdom
, and the United States
.
43 However, Russia vetoed the draft resolution and prevented the establishment of an ad hoc tribunal. Angola, China, and Venezuela abstained from the resolution.
44
If the OTP should decide to open an investigation of incident, one question is the characterization of the shooting down of MH17.
45 According to Professor Sarah Williams, the most likely characterization of the incident is as a potential war crime under Article 8 of the Rome Statute, because one of the requirements of this Article, namely the existence of an armed conflict, appears to be met by the non-international armed conflict between the armed forces of the government of the Ukraine and the separatists.
46 Professor Williams said that, within the context of a non-international armed conflict, possible charges would be the war crime of murder as a violation of Common Article 3 of the Geneva Conventions of 1949 under Rome Statute Article 8(2)(c) and the war crime of intentionally directing attacks against the civilian population under Article 8(2)(e)(i).
47 The most difficult element of war crimes to prove in this incident would be the contextual element of war crimes being “committed as part of a plan or policy or as part of a large-scale commission of such crimes” under Article 8(1). The shooting down of MH17 itself seems unlikely to fulfil this requirement.
48
The mental elements of the separatists would also be difficult to prove unless the separatists targeted MH17 knowing it was a civilian aircraft and intending to destroy it.
49 In addition, the involvement of Russia with the Ukrainian separatists appears not to have reached the level of overall control required to internationalize the conflict at the time of the shooting down of MH17 in July 2014.
50
Last but not least, the ICC is only allowed to exercise jurisdiction when competent national courts are unwilling or unable to investigate and prosecute the most heinous crimes of interest to the international community. To meet this ICC admissibility test, the existence of a national investigation and prosecution of the same person and same conduct would be very important under the jurisprudence of the ICC.
51 At the same time, the crime would have to be of sufficient gravity in light of Article 17(1)(d) of the Rome Statute. In this respect, an international joint criminal investigation by Australia, Belgium, Malaysia, the Netherlands, and the Ukraine may be comprehensive and large-scale enough to cover similar investigative targets as the ICC OTP if were to select this incident for preliminary examination.
52 Hence, the complementarity requirement of the Rome Statute does not yet seem to be met, especially considering paragraph 4 of Security Council resolution 2166 recognizing the efforts under way by the Ukraine to undertake an international investigation of the incident.
53 For good or for bad, the MH17 incident seems unlikely to be investigated and prosecuted by the ICC, especially given that the ICC has a limited budget and resources targeting the perpetrators of the most serious crimes. Although some lawyers wish the OTP to investigate and prosecute the incident,
54 the principle of complementarity—the principle of exhaustion of local remedies—remains a hurdle.
3.2.4 Situation of Afghanistan
Afghanistan became an ICC Member State in May 2003. Following 112 communications under Article 15 of the Rome Statute, a preliminary examination of the situation in Afghanistan
was announced in 2007.
55 The OTP considers the situation in Afghanistan to be an armed conflict of a non-international character between the Afghan government, supported by US forces and an international security force established by United Nations Security Council Resolution 1386, and non-state armed groups, particularly the Taliban.
56 The OTP has already determined that a reasonable basis exists to believe that, at a minimum, the following crimes within the ambit of the Court’s jurisdiction have occurred: (i) crimes against humanity and war crimes by the Taliban and its affiliated Haqqani Network; (ii) war crimes of torture and related ill-treatment by Afghan government forces, in particular the intelligence agency (National Directorate for Security) and the Afghan National Police; (iii) war crimes of torture and related ill-treatment by US military forces deployed to Afghanistan and in secret detention facilities operated by the Central Intelligence Agency, principally in the 2003–2004 period.
57 These crimes were seemingly committed in all 34 Afghanistan provinces
58 and by three separate groups of perpetrators: members of the Taliban and their affiliates constituting anti-government groups, members of the Afghan authorities, and members of the US armed forces or the Central Intelligence Agency (CIA).
59 The OTP has found the potential cases that would arise from an investigation of the situation of Afghanistan admissible pursuant to Article 53(1)(b), apparently fulfilling the requirements of Article 17.
60
A few elements seem to remain uncertain for the OTP to open an investigation into the situation of Afghanistan officially. First, there exists a law on general amnesty passed by the Afghan parliament in 2007.
61 The law entered into force in 2009, and it had neither a temporal limitation on its application nor an exception for international crimes.
62 However, for now, the OTP “would have no substantial reasons to believe that the opening of an investigation would not be in the interests of justice.”
63 Nevertheless, the OTP continues to engage with competent stakeholders to assess whether there are substantial reasons to believe that an investigation would not serve the interests of justice before deciding whether to open an investigation into the situation.
64 Whereas the complementarity test seems fulfilled for the crimes committed by members of anti-governmental groups and the Afghan authorities, the US Department of Justice conducted a preliminary review of allegations related to the abuse of the detainees in the custody of the Central Intelligence Agency, so the OTP is seeking to obtain further clarification on the scope of relevant preliminary reviews and investigations before finalising its determination on the admissibility of the US-related Afghan cases.
65
The preliminary examination of the situation of Afghanistan has been already treated as a situation in phase 3 of admissibility. This implies that the preliminary examination has reached its final stage. The potential for opening an investigation may be dependent on the availability of domestic investigation and prosecution, as well as the outcome of those available justice alternatives, if any. The gravity of the crimes allegedly committed by the three separate groups of perpetrators in the territory of Afghanistan seems to be serious enough to satisfy the admissibility threshold under Article 53(1)(c) of the Rome Statute, for example the approximately 17,000 civilian casualties between January 2007 and June 2015 attributed to anti-government armed groups.
66 While the deterrent effect of opening of an OTP investigation on future crimes in Afghanistan remains questionable, the cycle of impunity should be halted, especially for those who are most responsible for the atrocities in Afghanistan.
3.2.5 Situation of the Registered Vessels of Comoros, Greece and Cambodia
Israel imposed a naval blockade on the Gaza Strip up to a distance of 20 nautical miles from the coast,
67 on the high seas. After this blockade, the Free Gaza Movement was formed to challenge it.
68 According to the OTP, the Free Gaza Movement consisted of an eight-vessel flotilla with over 700 passengers from approximately 40 countries seeking to (i) deliver aid to Gaza, (ii) break the Israeli blockade, and (iii) raise international awareness about the closure of the Gaza Strip and put pressure the international community to review its sanctions policy.
69 Of the flotilla’s eight ships, one was the
Mavi Marmara, registered in the Comoros; the remaining ships were registered in Greece, Turkey, Kiribati, Cambodia, and the United States.
70 Of these states of registration, the Comoros, Cambodia and Greece are ICC States Parties. The Cambodian-registered vessel was named the
Rachel Corrie.
71
On 31 May 2010, the Israeli Defence Forces (IDF) intercepted six vessels, including the
Mavi Marmara. By that time, one of the eight vessels had withdrawn due to mechanical difficulties, and the
Rachel Corrie was delayed in its departure.
72 Although the captain of the
Rachel Corrie informed Israel that he disputed the Israel’s right to board, the
Rachel Corrie offered no resistance and cut her engines, and the IDF soldiers boarded and detained the vessel peacefully.
73 Therefore the OTP did not view the incident of the
Rachel Corrie as an attack.
74 However, the interception operation of the
Mavi Marmara resulted in the death of ten passengers, nine of whom were Turkish nationals, and one had dual Turkish and American nationality.
75 A United Nations Human Rights Council fact-finding mission was created to conduct an inquiry, and its report was delivered in September 2010.
76
The OTP received a referral letter from the government of the Comoros, which had ratified the Rome Statute in 2006,
77 on 14 May 2013.
78 The Comoros asked the Prosecutor to look into the 31 May 2010 Israeli interception of the humanitarian aid flotilla bound for the Gaza Strip.
79 On the same day as the referral, the prosecutor announced that she had opened a preliminary examination on it, but on 6 November 2014 she said that the information did not provide a reasonable basis to proceed with an investigation of the situation. Basically, the Prosecutor found that the gravity threshold for admissibility of the situation had not been satisfied for the incident of the
Mavi Marmara.
The
Mavi Marmara was carrying over 500 civilian passengers; nine of the 500 passengers were killed by the IDF during the interception, and another passenger later died of injuries caused by the 31 May 2010 incident.
80 On the seven other vessels in the flotilla, no serious injuries occurred during the course of their interception.
81 Therefore, the OTP found that the total number of victims of this situation was relatively limited compared with other cases investigated by the Office.
82 According to the OTP, considering that Israel made offers and proposals to the flotilla participants to permit the delivery of humanitarian supplies through an alternative route and that the humanitarian supplies carried by the vessels were ultimately distributed in Gaza, the interception of the flotilla could not be considered to have a significant impact on the civil population of Gaza.
83
However, on 29 January 2015, the Comoros filed an application for review of the Prosecutor’s decision not to proceed.
84 On 16 July 2015, Pre-Trial Chamber I requested the Prosecutor to reconsider her decision.
85 On 6 November 2015, the Appeals Chamber dismissed the Prosecutor’s appeal against the Pre-Trial Chamber’s request.
86 Rule 108, paragraph 2, of the ICC Rules of the Procedure and Evidence obligate the Prosecutor to reconsider a decision not to initiate an investigation “as soon as possible.” Accordingly, the OTP considered the significance of information made available to the Prosecutor after her decision not to open an investigation.
87 As of November 2016, the OTP is nearing the completion of its review of all information gathered and is preparing to issue the Prosecutor’s final decision under Rule 108, paragraph 3, in the near future.
88 In any event, as long as the interception of the
Rachel Corrie is not characterized as an attack, and it did not involve any casualties, the preliminary examination of the registered vessels of Comoros, Greece, and Cambodia would not in the end have a direct relationship with the Asian region.