Ferry Junigwan Murdiansyah
This article is a non-exhaustive and of preliminary in nature. It tries to response comments that suggest the International Criminal Court (ICC) to take measures upon recent incident in Egypt that occurred couple weeks ago between pro-Morsi supporters and government’s security forces that has claimed loss of life of nearly, if not more than, 1,000 people. NGOs, human rights activist and a number of commentators have called ICC to play role in such tragedy.
It is astonishing to see public’s expectation towards the ICC. However, from Egypt test case, it is ironic to fathom that the ICC is still being misunderstood to have jurisdiction in very early stage of conflict. Despite these misconception, this article believes that there might be some reasoning on why NGO’s, human rights activists and numerous commentators called ICC to intervene at this early stage.
Spikeonline.com (click here) makes a comparison between Egypt and Libya, suggesting “Egypt has not ratified the Statute of Rome…that the ICC does not have statutory jurisdiction there. This does not, however, prevent the potential intervention of the ICC. Libya hadn’t ratified the Statute of Rome, either, and that didn’t stop the indictment of the Gaddafis at the height of the Libyan Civil War”. It went on further with ‘It is possible for the UN Security Council to refer a ‘situation’ to the ICC chief prosecutor, who can then issue an indictment… So in order for there to be a prosecution in Egypt, the UN Security Council would have to refer the ‘situation’ to the prosecutor'.
From the above paragraph, this article emphasizes four keywords: Libyan civil war, ‘situation’, element of crimes within the ‘situation’ itself and the role of UN Security Council in Egypt.
Libyan Civil War
Was it really the civil war that intrigued ICC to intervene in Libya? This question is important and very fundamental as the situation in Libya changed from one character to another character. It is also important to ask ‘what type of conflict was in Libya’ in order to identify which law shall be applicable and thus eventually provided ICC a jurisdiction?
Most humanitarian lawyers will agree that determining conflict status is the most basic question in the law of armed conflict. Under the 1949 Geneva Convention, armed conflicts are classified into: i) international armed conflict which common article 2 applies and ii) non-international armed conflict that common article 3 shall be applicable.
International armed conflict is simple, it is a conflict that involve more than one State. Non-international armed conflict, on the other hand, is a conflict between governmental forces and non-governmental armed groups, or between such groups only; a conflict that may seem fit into the situation in Libya. However, as it was mentioned earlier, conflict in Libya had more than one character, the difficulty will be in drawing a line between an armed conflict and a mere internal disturbances - which the latter shall be within the scope of domestic law enforcement of the country and not of international conventions. It is also clear that a mere criminality such as riot, disorder, banditry and unorganized and short-lived insurrections will not raise the level of internal conflict(s).
Under ICRC Commentary of the First Geneva Convention 1949, a conflict to be entitled a status of a non-international conflict requires several high thresholds to be met, such high thresholds will not be discussed in this article. However, the ICTY has set a precedence of a lower threshold for the existence of non-international armed conflict. In one of its first decision, the Appeal Chamber held that ‘an armed conflict exist whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state’. These thresholds have been adopted in the Rome Statute of the ICC in article 8(2)(f).
Crisis in Libya was so complex that it started with internal uprising, then escalated into a non-international armed conflict and was then continued to level up into international armed conflict by means of foreign government military intervention and then re-internalized by the wide support and recognition of the rebels becoming the leader and legitimate government of Libya. So basically, all types of conflicts mentioned in this article occurred in Libya. But which one triggered ICC jurisdiction?
It was started on 15 February 2011 by protests in Benghazi, the country’s second largest city. On 17 February, thousands of protesters occupied the streets. Human Rights Watch reported that the protest was encountered by violence and that [t]he Libyan security forces killed at least 24 protesters and wounded many others in a crackdown on peaceful demonstrations across the country’ (see here). At this stage, situation in Libya was not anything near to armed conflict. Its character fell within a mere ‘internal disturbances’ definition. This was, however, changed when on 20 February the rebel took over Benghazi. It changed the conflict from internal disturbances status into non-international conflict by means of territorial occupation, organization of the rebels and intensification of the fighting.
At this second stage, Gadaffi used his military forces as well as his own irregular paramilitary forces that were supported by foreign mercenaries. These hostilities had reached such a level that ordinary police and security forces were no longer sufficient. On the other hand, the rebels themselves were now more heavily armed, employing bombs, grenade, AK-47s and anti-aircraft gun. (see here) This qualified the requirement of ‘resort to armed force’ as envisaged in article 8(2)(f) of the Rome Statute.
By 24 February, rebels had captured a number of cities near Tripoli in addition to Benghazi. Government forces were repelled by the rebels and General staff and zone commanders of the rebels had appeared in many media to give statements and demands. These conditions showed that the condition of ‘organized armed group’ as stipulated in article 8(2)(f) has also been met.
The following day, on 25 February, hundreds of civilians had been killed and over 22,000 people had been displaced. This day was the tenth day of Gadaffi forces engaging the rebels. During these ten days the intensity of such violence continued to occur and escalated the number of casualties. Thus it qualified the threshold of protracted-ness of the armed violence as envisaged in article 8(2)(f) of the Rome Statute.
From this point, all criteria of ‘resort to armed force’, ‘organized armed group’ and ‘protracted violence’ of article 8(2)(f) of the Rome Statute have been met. These tragic and overwhelming conditions in Libya were then served as the basis for UN Security Council to intervene via Resolution No 1970 of 26 February; that referred Libya to the prosecutor of the ICC.
The term ‘situation’ and ‘case’ appear quite often throughout the Rome Statute of the ICC. It is however a ‘situation’ that might confer ICC jurisdiction, not a ‘case’. To see whether Egypt test case fall between which definitions require thorough assessment upon both terms themselves. However, no definition has been provided in both the Rome Statute and the Rules of Procedures and Evidence.
Upon the situation of Democratic Republic of Congo, the Pre Trial Chamber I of the ICC has briefly elaborated the characteristics of both terms. It reads case as ‘specific incidents during which one or more crimes within the jurisdiction of the Court seem to have been committed by one or more identified suspects’. A case must be related to incident-specific conduct for the purpose of the application of the Rome Statute’ provisions.
On the other hand, the concept of situation has broader parameter than that of a case, the same Pre-Trial Chamber held that situations ‘are generally defined in terms or temporal, territorial and personal parameters’. It has to show linkage of incident(s) to those three criterions. Situations under the jurisdiction of the ICC may include hundreds, if not thousands, of incidents of crimes that are prohibited under the Statute that are committed by a large number of perpetrators at various level of authority.
Again, assessment of whether situation in Egypt was simply a case or has met the requirement of a situation need full examination of cases law that had been built under the Rome Statute doctrine, which this article might not be doing. However, this article might explicitly believe that the tragedy in Egypt is still in its ‘early stage of conflict’ that fall within the context of a ‘case’.
Crimes in Egypt’ Tragedy
The ICC, at current, has jurisdiction upon three types of crimes: i) crimes against humanity, ii) war crimes and iii) genocide which is stipulated under article 5 of the Rome Statute.
It is not likely that the tragedy in Egypt might fall under crimes of genocide. It will most likely fall under crimes against humanity or war crimes. However, each of these crimes have their own elements that need to be met.
Crimes against Humanity
To briefly assess the Egypt test, crimes against humanity at least requires ‘widespread or systematic’, ‘civilian population’, and ‘State or organizational policy’ thresholds to be met. (Even though actually there are more elements to be addressed)
- The ‘widespread or systemic’ requirement is widely accepted as international element that can help us to differentiate crimes against humanity from ordinary and common crimes (such as killing under domestic law) that does not trigger interpretation of crimes under the Rome Statute. In the history of crimes against humanity, the term ‘widespread’ replaces the term ‘large scale’ which subsequently replaces a higher threshold of ‘mass scale’. The ILC explained that the term ‘mass scale’ was used in 1991 Draft Code of Crime to indicate ‘the requirement of multiplicity of victims’ but was replaced in 1996 Draft Code with ‘large scale’ to cover various situations involving a multiplicity of victims, this was then replaced by ‘widespread’. The term ‘widespread’ is not geographic-specific but it may include a number of victims in a small area. This notion was supported by the jurisprudence of the ICTY Appeal Chamber that broadly refer widespread as ‘to the large-scale nature of the attack and the number of targeted persons’. Under the same appeal chamber decision, ‘systematic’ was defined as an ‘organized nature of the acts of violence and the improbability of their random occurrences.’ (see here, para 94). Moreover, ICTY Trial Chamber of Tadic case interpreted ‘systematic’ as an indication of ‘pattern or methodical plan’ (see here, para 648) and ICTR Trial Chamber in Akeyasu case interpreted it as ‘…thoroughly organized and following a regular pattern on the basis of a common policy involving substantial public or private resources’ (see here, para 204). It is then still contentious to see whether the Egypt test has meet the element of ‘widespread or systematic’.
- To fall within the definition of crimes against humanity of the Rome Statute, the attack need to be ‘directed against any civilian population’. The wording ‘directed against’ can be interpreted that the civilian population must the primary object of the attack. In order to determine whether the attack have been ‘directed’ we can assess it through the means and method of the attack, status of victims, number of victims, discriminatory nature of the attack and so on. It was then to determine a population. ICTY Appeal Chamber in Kunarac case held that ‘population does not mean that the entire population of the geographical entity in which the attack is taking place…it is sufficient to show that enough individuals were targeted in the course of the attack…rather than against a limited and randomly selected number of individuals” (see here, para 90). To determine the scope of ‘civilian’, common article 3 of the Geneva Convention 1949 includes ‘all person who have taken no active part in hostilities, or are no longer doing so…’ and civilian population may include person from any nationalities. Thus, crimes against humanity can be committed against civilian of the same nationality as the perpetrator, or/and different nationality or/and stateless person. (see here para 635). From the Egypt test case, it might be assumed that ‘directed against any civilian population’ element has been met.
- It is indeed that the Rome Statute is the first international legal instrument that include a requirement of ‘State or organizational policy’ in the definition of crimes against humanity. Its inclusion in the Rome Statute is against the jurisprudence of the ICTY and ICTR, however, it is a safeguard to ensure that criminal act committed by a sole person shall not constitute crimes against humanity under the ICC. It should be an act of organization or a State. From this point, it is contentious to ask, whether the current military regime in the Egypt has formed, if not been widely acknowledged as, a State as the new regime took over the government that was resulted from people’s vote and election.
Another important point to assess the crimes against humanity is to visit the Travaux Preparatoire of the Rome Statute and see the development during the negotiation. It will surely help us to affirm, if not to reject, the abovementioned assessment. However, at this current point, this article does not concur whether crimes against humanity under the interpretation of the Rome Statute have been occurred in Egypt.
From the outset, this article emphasizes the importance to make an identification of what types of conflict that may occur in a country. From the case of Egypt, this article believes that it is still on its early stage of conflict that constitute a mere ‘internal disturbances’ rather than non-international conflict let alone international conflict. This is relevance in the discussion as article 8(2)(d) and article 8(2)(f) of the Rome Statute affirm that article 8(2)(c) and article 8(2)(e) for which both articles apply only to armed conflict not of international character. Both article 8(2)(c) and article 8(2)(e) are then not applicable to situations of internal disturbances and tensions such as riots.
From all of the arguments that have been provided in this article, it might appear that the Rome Statute is not yet applicable to the current context of the Egypt case. This article does not necessarily mean to disparage the number of casualties that have taken place in Egypt. But the fact that the International Criminal Court was brought in this early stage of conflict intrigues this article. As already mentioned on the earlier paragraphs, there must be ‘something’ why the NGOs, human rights activist and a number of commentators brought up this issue.
It is for deterrence effect. The existence of the ICC is perceived to have a deterrence effect in on-going conflicts. It is a signal to the potential perpetrators in any kind of conflicts that violations of crimes under the jurisdiction of the ICC will not go unpunishable. It is also, may be, to prevent the current conflict in Egypt to be escalated into non-international and even into international armed conflict.
It may be either the governments or the rebels be brought before the ICC if the situations likely to escalate in Egypt. As for the current role for the UN Security Council, as referred by Spikeonline.com, in addressing Egypt case, might be limited to promote the shared responsibility to protect as it is envisaged under the Responsibility to Protect regime, adopted by the UNGA in 2005.
Scenario such as self-referral under article 14 of the Rome Statute (exercised by Uganda and DRC governments) is less likely to happen under the current controlling government in Egypt. Another scenario for the ICC Prosecutor acting proprio motu under article 15 of the Rome Statute is also less likely to happen in reflection to the discussion of case versus situation that this article have tried to addressed.