Content uploaded by Alette Smeulers
Author content
All content in this area was uploaded by Alette Smeulers on Nov 28, 2017
Content may be subject to copyright.
() -
© , , | ./-
<UN>
brill.com/icla
International
Criminal La
w
Review
The Selection of Situations by the : An
Empirically Based Evaluation of the ’s
Performance
Alette Smeulers
Tilburg University, Tilburg; University of Groningen,
Groningen, The Netherlands
Maartje Weerdesteijn
Tilburg University, Tilburg, The Netherlands
Barbora Hola
University, Amsterdam, The Netherlands
Abstract
The main aim of the International Criminal Court () is to prosecute the most seri-
ous crimes of concern to the international community. One of the most valued fea-
tures of the is the independent position of the Prosecutor in selecting situations
and cases to investigate. The Prosecutor, however, has been heavily criticized for his
selection policy and countries from the African Union even threatened to withdraw
from the because of its alleged bias and unfair focus on African political leaders. In
this article we present the results of our explorative study in which we empirically
evaluate the situations selection policy of the Prosecutor. We conclude that given
the ’s limited jurisdictional reach, the Prosecutor is generally focusing on the grav-
est situations where international crimes are supposedly committed.
Keywords
International Criminal Court () – situational gravity – selection policy – prosecutor
2
international criminal law review 15 (2015) 1-39
<UN>
,
See the full text of the Rome Statute and ratication status: www.icc-cpi.int/en_menus/asp/
Pages/asp_home.aspx, 20 May 2014.
See preamble and Article 1 of the Statute.
Ibid.
In 2010 the state parties also agreed on the denition of aggression (Article 8bis Statute),
but the will only have jurisdiction for this crime after 1 January 2017 and only if at least 30
states accepted or ratied the amendment.
It has been argued that the initiation of investigations and selection of situations and cases
is among the most critical tasks of the since such decisions directly inuence the legiti-
macy of the Court and judgments as to its efectiveness and ultimate success. M.M. deGuz-
man and W.A. Schabas, ‘Initiation of Investigation and Selection of Cases’, in G. Sluiter (ed.),
1 Introduction
The International Criminal Court () was established by the Rome Statute
in 1998 and began to function in 2002 after 60 states had ratied the Statute.
It’s main aim is to ensure that “the most serious crimes of concern to the inter-
national community as a whole must not go unpunished” as such crimes
“threaten the peace and security and well-being of the world”. By putting an
end to impunity the aims to “contribute to the prevention of such crimes”.
To this end the has jurisdiction over genocide, crimes against humanity
and war crimes when committed after its entry into force on 1 July 2002 (Article
5–8 Statute).
As opposed to the , the jurisdiction of the other international criminal
tribunals such as the International Military Tribunals in Nuremberg and Tokyo,
the International Criminal Tribunals for the former Yugoslavia and Rwanda,
the Special Court for Sierra Leone and the Extra-ordinary Chambers of the
Courts of Cambodia is limited in a temporal and territorial sense by their
Statutes. Consequently, ‘situations’, in which these courts can exercise their
jurisdiction, are pre-determined by their founders. The , however, has a
potentially global jurisdictional reach and can theoretically exercise jurisdic-
tion in any situation around the world, where international crimes are being
committed, if conditions provided for in the Statute are met.
The Statute stipulates three ways in which investigations into a parti-
cular situation might be triggered: by a referral of a state party (Article 14
Statute), by a referral of the United Nations Security Council () (Article 13
Statute) and by the Prosecutor proprio motu (Article 15 Statute).
Obviously, the is unable to deal with all situations and cases around the
world in which international crimes are committed. It is by nature highly selec-
tive and the Prosecutor is the primary organ of the Court making the selection
decisions and thus plays a crucial role in this important selection process. The
3
international criminal law review 15 (2015) 1-39
<UN>
Towards Codication of General Rules and Principles of International Criminal Procedure
(Oxford University Press, Oxford, 2012).
-, Report on the activities performed during the rst three years (June 2003-June
2006), The Hague and K. Ambos and I. Stegmiller, ‘Prosecuting international crimes at the
International Criminal Court: is there a coherent and comprehensive prosecution strategy’,
58 Crime, Law and Social Change (2012) 391–413, at p. 395.
W.A. Schabas, ‘The International Criminal Court at Ten’, 22 Criminal Law Forum (2011)
503–504.
-, Draft Policy paper on preliminary examinations (The Hague 2010).
M.M. deGuzman, ‘Choosing to Prosecute: Expressive Selection at the ’, 33 Michigan
Journal of International Law (2012) 265–320 at p. 271, available at ssrn.com/abstract=
1780446, 11 June 2013.
selection process can be divided into two main steps: (i) selection of situations
(territorially and temporarily distinguished spaces where international crimes
might have taken place) and (ii) selection of cases (including one or more perpe-
trators) from these situations. The independence of the Prosecutor and his pow-
ers to decide which situations (and cases) to investigate has been hailed as one of
the major accomplishments in the negotiations of the Rome Statute as this
allows for a selection policy based on judicial rather than political reasoning.
The ’s jurisdiction is limited to the most serious crimes of international
concern (i.e. there is a jurisdictional gravity threshold) but apart from that the
Statute ofers rather limited legal guidance regarding the selection criteria for
investigations and prosecutions. The Prosecutor consequently enjoys a broad
discretion in deciding on which situations and potential cases to focus his limited
resources. Over time, the Oce of the Prosecutor () developed policies
regarding its selection policy and elaborated upon the concept of (situational)
gravity which has become one of the core criteria for the selection of situations.
The strategy of the Prosecutor, however, has been highly contentious. As
noted by DeGuzman:
[n]o aspect of the ’s work has been more controversial to date than its
decisions about which situations and cases to prosecute. Every decision
the Court makes is scrutinized, and many have given rise to strong criti-
cisms. Such expressions of disapproval have come from […] states, s,
communities most afected by the ’s work, academics, and the global
community generally.
Most notably the has been accused of having an ‘African bias’. Yet while
scholars for the most part based their criticism of the selection strategy of the
Prosecutor and of the Prosecutorial interpretation of situational gravity
4
international criminal law review 15 (2015) 1-39
<UN>
,
Cf. M.R. Brubacher‚ ‘Prosecutorial Discretion within the International Criminal Court’, 2
Journal of International Criminal Justice (2004) 71–95; A.M. Danner, ‘Enhancing the
Legitimacyand Accountability of Prosecutorial Discretion at the International Criminal
Court’, 97 Am.J.Int’lL. (2003) 510–552; M.M. deGuzman, ‘How Serious Are International
Crimes? The Gravity Problem in International Criminal Law’, Research Paper No. 2012–
2013, 13/4/2012 available at ssrn.com/abstract=2014987, 8 June 2012; J.A. Goldstone, ‘More
candour about criteria - the exercise of discretion by the prosecutor of the International
Criminal Court’, 8 Journal of International Criminal Justice (2010) 383–406; A.K.A.
Greenawalt, ‘Justice without politics? Prosecutorial discretion and the International
Criminal Court’, Pace Law Faculty Publications, Paper 340 (2007), available at digitalcom-
mons.pace.edu/lawfaculty/340, 29 May 2013; M. O’Brien, ‘Prosecutorial Discretion as an
Obstacle to Prosecution of United Nations Peacekeepers by the International Criminal
Court, The Big Fish/Small Fish Debate and the Gravity Threshold’, 10 Journal of
International Criminal Justice (2012) 525–545; W.A. Schabas, ‘Prosecutorial Discretion v.
Judicial Activism at the International Criminal Court’, Journal of International Criminal
Justice (2008) 731–76; W.A. Schabas, ‘Victor’s Justice: Selecting situations at the
International Criminal Court’, 32 J. Marshall L. Re. (2009–2010) 535.
For a compiled volume on the selection of cases see M. Bergsmo (ed), Criteria for
Prioritizing and Selecting Core international Crimes Cases, (, Oslo, 2010), and
especially the chapter by P. Seils, ‘The selection and prioritization of cases by the Oce of
the Prosecutor of the International Criminal Court’, in this edited volume, pp. 69–78.
on theoretical and/or doctrinal arguments, an empirical assessment has been
missing. Did the Prosecutor indeed follow the criteria of situational gravity
developed in his policies? Did he focus on the most serious situations? Can we
claim that his selection decisions are reecting empirical reality on the ground
when it comes to situational gravity?
In this contribution we aim to open up this discussion, and present a
descriptive analysis on the basis of secondary sources that forms an initial
empirical assessment of the Prosecutor’s selection policy. In our analysis we
will look at the rst ten years of the ’s functioning and limit ourselves to the
selection of situations and not the selection of cases as the latter would require
a completely diferent analysis. In section2 we will further analyse the con-
cept of situational gravity by looking at the Statute, Prosecutorial policy
papers and the relevant case-law. The academic discussion regarding the
issue of situational gravity will briey be touched upon. In section3 we will
describe our methodology and discuss the empirical data used to assess the
prosecutorial strategy of the . We will explain the manner in which we used
diferent publicly available datasets to create a seriousness index allowing us to
get an impression of the extent to which the is focusing on the countries it
should be focusing on, given its own selection criteria. In section4 we will
compare our results with the situations the is indeed focusing on and will
5
international criminal law review 15 (2015) 1-39
<UN>
The Pre-Trial Chamber may review a decision of the Prosecutor not to proceed. J. Trahan,
‘The relationship between the International Criminal Court and the Security Council:
parameters and best practices’, 24 Criminal Law Forum (2013) 422–424.
See -, Policy paper on the interests of justice (The Hague, 2007).
thus make an assessment of the ’s performance in these rst ten years. In
our nal section we will discuss our ndings and subsequently set out our con-
clusions and discuss the limitations of our study and methodology.
2 Situational Gravity at the
As already stated a situation can be referred to the Prosecutor by a state party
or by the Security Council acting on the basis of Chapter VII of the Charter.
The Prosecutor can also initiate proceedings proprio motu (see Articles 13
and 15 Statute). When a case is referred to the by a state party or the
Prosecutor starts an investigation, the Court is bound by the jurisdictional lim-
itations as stated in Article 12 Statute. The Court only has jurisdiction
when the crimes are committed on the territory of a state party or the accused
is a national of a state party. The is not bound by these restrictions, it can
refer any situation to the as long as it is acting on the basis of Chapter VII
of the Charter and the situation can be qualied as a threat to international
peace and security. However, when a situation is referred to the Court the
Prosecutor is not obliged to proceed. Regardless of whether the situation con-
cerns a referral of the Security Council or is a referral from a state party, the
Prosecutor maintains the discretion to determine whether it is appropriate to
move forward with such a situation.
In determining whether there is a reasonable basis to proceed under
Articles 15 and 53 the Prosecutor shall consider whether (i) there is a reason-
able basis to believe that international crimes were committed (jurisdiction
assessment); (ii) the case would be admissible under Article 17 (admissibility
assessment) and (iii) “taking into account the gravity of the crime and the
interests of the victims, there are nonetheless substantial reasons to believe
that an investigation would not serve the interests of justice” (interests of
justice assessment). The admissibility assessment is governed by Article 17,
which stipulates three requirements: (i) complementarity (the Court cannot
proceed with a case that is being investigated or prosecuted by a state with
jurisdiction); (ii) ne bis in idem (the Court cannot proceed if a person has
already been tried for the conduct at hand); and nally (iii) crimes must be of
sucient gravity. Article 15 stipulates that when the Prosecutor started an
6
international criminal law review 15 (2015) 1-39
<UN>
,
, Situation in Kenya: Decision Pursuant to Article 15 of the Statute on the
Authorization of an Investigation into the Situation in the Republic of Kenya, ICC-01/09
(31 March 2010) paras. 41–50; , Situation in the Republic of Côte D’Ivoire: Decision
Pursuant to Article 15 of the Statute on the Authorization of an Investigation into the
Situation in the Republic of Côte D’Ivoire, ICC-02/11 (3 October 2011) para. 18.
This was actually not the case in the past where the emphasis on gravity in prosecutorial
statements was not so apparent. Cf. W.A. Schabas, ‘Prosecutorial Discretion v. Judicial
Activism at the International Criminal Court’, 6 Journal of International Criminal Justice
(2008) 731–761, at p. 736.
-, Paper on some policy issues before the Oce of the Prosecutor (September
2003).
See - Report on the activities performed during three years (June 2003–June
2006), p. 6.
investigation proprio motu and believes that there is a reasonable basis to pro-
ceed he has to submit a request for authorization to investigate to the Pre-Trial
Chamber, which then authorizes investigations on the basis of the same
above-mentioned criteria.
Gravity is thus at the centre of the admissibility assessment conducted by the
Prosecutor (and the judges), whereby situations and cases of insucient gravity
are to be deemed inadmissible. The Statute, however, does not give any indi-
cation how to assess gravity of a particular situation, and the Prosecutor enjoys a
large amount of discretion in making this determination. Articles 17 and 53 both
address gravity solely at the level of individual cases. The Pre-Trial Chambers,
however, interpreted the Statute by taking a contextual approach and decided
that these provisions are also applicable while assessing the situational gravity.
The concept of gravity occupies a prominent place in the Prosecutor’s pol-
icy statements and his pronouncements on individual cases and situations.
In September 2003 the Oce of the Prosecutor of the published its rst
policy paper. In this paper it clearly indicated that the aim of the is to (1)
focus on the most serious crimes of international concern and (2) focus on the
leaders who bear most responsibility for these crimes. The concept of situa-
tional gravity as one of the selection criteria, however, was not elaborated
upon. In its report of 2006 the Prosecutor claried the four criteria taken into
account when judging the gravity of a particular situation. These criteria are
both (i) quantitative such as the scale of the crimes; and (ii) qualitative such as
the nature of the crimes; the manner of their commission; and their impact.
In the draft Paper on Preliminary Examinations of 2010 the Prosecutor further
elaborated upon these four criteria:
a. The scale of the crimes may be assessed in light of, inter alia, the number
of direct and indirect victims, the extent of the damage caused by the
7
international criminal law review 15 (2015) 1-39
<UN>
In this respect Heller criticizes the that it has exclusively focused on number of
victims when selecting situations for preliminary examinations and investigations.
He argues that “the should privilege systematicity, social alarm, and State criminality
instead, because crimes that exhibit those features are inherently more serious than
crimes that simply involve numerous victims”. See K.J. Heller, ‘Situational Gravity under
the Rome Statute’, in C. Stahn and L. van den Herik (eds.), Future Directions in International
Criminal Justice (Cambridge University Press, Cambridge, 2009), pp. 227–253.
-, Draft Policy paper on preliminary examinations (2010), pp. 13–14.
Kenya authorization decision, Côte d’Ivoire authorization decision, supra note 14.
Kenya authorization decision, supra note 14, para. 56.
Ibid., para. 58.
crimes, in particular the bodily or psychological harm caused to the
victims and their families, and their geographical or temporal spread
(intensity of the crimes over a brief period or low intensity violence over
an extended period);
b. The nature of the crimes refers to the specic elements of each ofence
such as killings, rapes and other crimes involving sexual or gender vio-
lence and crimes committed against children, or the imposition of condi-
tions of life on a community calculated to bring about its destruction;
c. The manner of commission of the crimes may be assessed in light of, inter
alia, the means employed to execute the crime, the degree of participation
and intent in its commission, the extent to which the crimes were systematic
or result from a plan or organized policy or otherwise resulted from the
abuse of power or ocial capacity, and elements of particular cruelty, includ-
ing the vulnerability of the victims, any motives involving discri mination, or
the use of rape and sexual violence as a means of destroying communities;
d. The impact of crimes may be assessed in light of, inter alia, their conse-
quence on the local or international community, including the long term
social, economic and environmental damage; crimes committed with the
aim or consequence of increasing the vulnerability of civilians; or other
acts the primary purpose of which is to spread terror among the civilian
population.
The Pre-Trial Chambers conrmed this interpretation of situational gravity in
both decisions authorizing the investigation of the two situations brought by
the Prosecutor proprio motu- in Kenya and Côte D’Ivoire. The Chambers
stated that the gravity threshold in Article 17 forms an additional safeguard
that prevents the Court from investigating, prosecuting and trying peripheral
cases. At the stage of preliminary investigation gravity should be assessed
against the backdrop of the likely set of cases or ‘potential cases’ that would
arise from the investigation of the situation. There is thus an interplay
8
international criminal law review 15 (2015) 1-39
<UN>
,
Ibid., para. 61.
Ibid., para. 62.
De Guzman, supra note 9, p. 1432.
between the crimes and the context in which they are committed - gravity of
crimes shall be assessed in the context of their modus operandi. According to
the Chamber, “gravity may be examined following a quantitative as well as
qualitative approach” whereby not only the number of victims is relevant but
also “the existence of some aggravating or qualitative factors attached to the
commission of crimes, which makes it grave”.
The situational gravity thus seems to be understood as a de minimis require-
ment for the admissibility assessment based on 4 main indicators/factors:
scale, nature and impact of the crimes and their manner of commission. The
Prosecutor has included the relative gravity assessment among diferent situa-
tions in this analysis and emphasised his focus on the gravest situations. The
question remains whether in practice these criteria are applied consistently
and the Prosecutor has indeed focused on the gravest possible situations where
international crimes might have been committed as is often reiterated in his
public statements. In the following sections we will proceed to assess which
countries actually represent the gravest situations where international crimes
might have been committed over the past ten years taking into account the
four main indicators of situational gravity.
3 Methodology
In order to determine on an empirical basis which countries should have war-
ranted the attention of the in accordance with its own criteria, we have
made use of the data of three widely accepted databases, the Uppsala Conict
Database, Political Terror Scale and Failed State Index.
3.1 The Uppsala Conlict Data Program
The Department of Peace and Conict Research of the University of Uppsala
together with the International Institute of Peace Research in Oslo () has
compiled the Uppsala Conict Data Program () on armed conicts con-
sisting of a variety of data. The data is one of the most accurate and well-
used data-sources on global armed conicts and its denition of armed conict
is becoming a standard in how conicts are systematically dened
and studied in political and social sciences. For our purposes, we have used
the data indicating the number of casualties resulting from one sided violence
9
international criminal law review 15 (2015) 1-39
<UN>
See www.pcr.uu.se/research/ucdp/denitions/, 23 April 2014.
It has to be taken into account that these gures are very conservative estimates because of
the stringent coding rules in which only reported deaths are coded; the cause of death has to
be identied as political rather than criminal and the group responsible has to be identied.
See www.politicalterrorscale.org/, 23 April 2014; and M. Gibney, L. Cornett and R. Wood,
‘Political Terror Scale 1976–2006’. Date Retrieved, from the Political Terror Scale Website:
www.politicalterrorscale.org/.
See www.politicalterrorscale.org/, 23 April 2014. More information on how codes infor-
mation from of can be found at www.apsanet.org/media/PDFs/TerrorTFGib
neyandDalton.pdf, 23 April 2014.
Ibid.
inicted either by a government or by an organized group. One sided violence
is dened as: “The use of armed force by the government of a state or by a for-
mally organised group against civilians which results in at least 25 deaths in a
year”. In order to be able to rank countries according to the number of casu-
alties we recoded the data as follows:
> 1000 casualties recorded = 1 (extremely serious)
500–1000 casualties recorded = 2 (very serious)
100–500 casualties recorded = 3 (serious)
<100 casualties recorded = 100 (other)
3.2 Political Terror Scale
The Political Terror Scale () measures levels of political violence and ter-
ror that a country experiences in a particular year based on a 5-level ‘terror
scale’. The data used in compiling this index comes from two diferent sources:
the yearly country reports of Amnesty International () and the .. State
Department Country Reports on Human Rights Practices. The ‘political terror’
in the refers to state-sanctioned killings, torture, disappearances and
political imprisonment within a state’s borders. For our purposes, we focused
on countries that have been ranked as the worst instances of political terror by
the , by the State Department or by both in a particular year, i.e., countries
that ranked either 4 (i.e., indicates a situation where civil and political rights
violations have expanded to large numbers of the population. Murders, disap-
pearances, and torture are a common part of life. In spite of its generality, on
this level terror afects those who interest themselves in politics) or 5 (i.e. indi-
cates a situation where terror has expanded to the whole population. The lead-
ers of these societies place no limits on the means or thoroughness with which
they pursue personal or ideological goals’). In order to rank the countries
according to the degree of political terror we recoded the data as follows:
10
international criminal law review 15 (2015) 1-39
<UN>
,
See global.fundforpeace.org/, 23 April 2014.
See fp.statesindex.org/faq, 23 April 2014.
C.T. Call, ‘The Fallacy of the ‘Failed State”, Third World Quarterly (2008) 1491–1507, at
p. 1495.
Countries indexed as 5 based on both and the = 1 (extremely
serious)
Countries indexed as 5 either by or = 2 (very serious)
Countries indexed as 4 based on both and the = 3 (serious)
Countries indexed otherwise = 100 (other)
3.3 Failed States Index
The Failed States Index is an aggregate measure of state vulnerability devel-
oped by the Fund for Peace. It is based on twelve diferent indicators detail-
ing the existing social, economic and political pressures faced by 178 countries
included in the database. It covers a broad range of state failure risk elements
such as mounting demographic pressures (disease or natural disasters), mas-
sive movement of refugees and internally displaced persons, uneven economic
development along group lines, progressive deterioration of public services or
external intervention. The empirical data forming the basis for the indicators
are collected via content analysis of a large number of documents ranging
from news and magazine articles, essays, published speeches, to governmental
and non-governmental reports. The ndings are then triangulated by incorpo-
rating data from international governmental and non-governmental organiza-
tions such as United Nations High Commissioner for Refugees (), World
Health Organization (), United Nations Development Programme
(), Freedom House or Transparency International and by qualitative
review of each indicator for each country.
The sum of the twelve indicators that together make up the Failed State
Index, form an aggregate measure of the risk of state failure. For the purposes
of this article we decided not to rely on the overall index score but rather on
four selected, arguably most relevant, indicators:
1. Indicator of Suspension or Arbitrary Application of the Rule of Law and
Widespread Human Rights Abuse, which includes measures related to
press and political freedoms, civil liberties, human tracking, political
prisoners, incarceration, religious persecution, torture and executions;
2. Indicator of Legacy of Vengeance-Seeking Group Grievance or Group
Paranoia, which includes measures related to discrimination, powerless-
ness, ethnic violence, communal, sectarian or religious violence;
11
international criminal law review 15 (2015) 1-39
<UN>
This distinction reects distinction/ranking by the Fund for Peace in their overall Failed
State Index where the top 25 per cent countries are classied as ALERT (the category of
ALERT is further distinguished into three subcategories: 1 dark red/2 red/3 light red (each
constituting 8,6 per cent of the listed countries). In our scale we followed these distinc-
tions but adjusted the computations to the fact that our scale ranges only to 40.
3. Indicator of Massive Movement of Refugees or Internally Displaced
Persons, which includes measures related to displacement, refugee
camps, internally displaced persons () camps, disease related to dis-
placement and refugees and s per capita;
4. Indicator of Weakening of Force Monopoly of State Security Apparatus,
which includes measures related to internal conict, small arms prolif-
eration, riots and protests, fatalities from conict, military coups, rebel
activity, militancy, bombings and political prisoners.
Values of each indicator range from 0–10 (0-least serious; 10-extremely seri-
ous). In order to create an aggregate measure and be able to compare countries
across diferent years, we summed up the four indicators to get one overall
measure of state performance regarding violations, group violence, refugee
movements and weakening of state monopoly per year. Thereafter, we recoded
this measure in order to get an ordinal ranking of countries per year as we did
for the other databases:
40–36,68 = 1 (ALERT 1: extremely serious)
36,67–33,32 = 2 (ALERT 2: very serious)
33,31–30 = 3 (ALERT 3: serious)
<30=100 (other)
The data derived from these databases thus indicate scale, nature and impact
of the human rights violations as well as governmental involvement in these
violations and their systematic character relating to the manner of commis-
sion in the following manner:
1. The number of civilian deaths in one-sided violence inlicted by the govern-
ment recorded in the Uppsala Conlict Database.
This relates to the scale of human rights violations and assesses govern-
ment involvement. The fact that governmental forces are involved also
indicates that there is a potential abuse of power and possibly a plan
or policy, thus pertaining to the manner of commission as well. It is also
12
international criminal law review 15 (2015) 1-39
<UN>
,
There is not yet a list for 2012 as the data on the and one sided violence for this year
were still missing when we gathered all the data.
a useful indicator to assess the nature of the crimes since killings are
listed as one of the criteria.
2. The number of civilian deaths in one-sided violence inlicted by a formally
organized group recorded in the Uppsala Conlict Database.
This relates to the scale of human rights violations and also indicates
potentially systematic character of crimes being committed by a formally
organized group related to the manner of commission. Similar to the
above, it is also an indicator of the nature of the crimes.
3. The ranking of each country by the Political Terror Scale
This is informative about the scale of the human rights violations, their
manner of commission because of governmental involvement, their
nature (indicator of level of killings, torture and disappearances) and their
impact since it is indicative of the spread of terror and fear among the
population.
4. The ranking of each country by the Failed State Index based on the four
selected indicators described above.
This relates to the scale indicating the extent to which abuse of human
rights is widespread, the impact of human rights violations looking at the
measure of the massive movement of refugees and internally displaced
persons and manner of commission taking into account the level of dis-
criminatory violence.
In analysing our data we have calculated the four indicators for each country
per year between 2002 and 2011. On their basis, we have created an index
indicating the seriousness of a situation in each country per year (the yearly
seriousness index ()).The was created by summing up the rankings from
all databases per country per year. As a rst step we compiled lists of the ten
worst countries representing the gravest situation per year (see Table1 below).
This table is however only a preliminary result. In order to come to our nal
results we computed an aggregate seriousness index () over the entire
period of 2002–2011 for each country. The was determined by taking into
account the position a country held on the yearly top ten list in each year. A
country would get a ten when it was listed rst, nine when it was second down
to one when it was listed tenth. By summing up these values we could calculate
the for the period of 2002–2011. In our analysis we focused on the top
twenty countries based on the . We distinguished four clusters of countries
with 25 per cent interval each: (1) The gravest situations are those with an
13
international criminal law review 15 (2015) 1-39
<UN>
2002 2003 2004 2005 2006 2007 2008 2009 2010 2011
. DRC . Sudan . Sudan . Sudan . Iraq . Iraq . Iraq . DRC . Pakistan . Cote d’Ivoire
. Liberia . Liberia . DRC . Nepal . Sudan . DRC . DRC . Afghanistan . DRC . Sudan
. Burundi . Indonesia . Nepal . Iraq . DRC . Myanmar . Sudan . Iraq . Afghanistan . Syria
. Nepal . Burundi . Iraq . DRC . Afghanistan . Chad . Zimbabwe . Sri Lanka . Iraq . Pakistan
. Cote
d’Ivoire
. Nepal . Colombia . Myanmar . Myanmar . Ethiopia . Sri Lanka . Guinea . Sudan . Yemen
. Colombia . DRC . Uganda . Afghanistan . CAR . Sudan . Pakistan . Pakistan . Myanmar . Myanmar
. Israel . Colombia . Burundi . Cote d’Ivoire . Sri Lanka . Somalia . Nigeria . Sudan . CAR . CAR
. Uganda . Cote d’I . Ethiopia . Colombia . Chad . Sri Lanka . Kenya . Somalia . Somalia . Somalia
. India . Ethiopia . Thailand . Burundi . Zimbabwe . Afghanistan . Somalia . Chad . Yemen . Afghanistan
. Algeria . Israel . Russia . Uzbekistan . Pakistan . Zimbabwe . Chad . Myanmar . Sri Lanka . DRC
. Uganda . Philippines . Togo . Uganda . CAR . N.Korea . Nigeria
. Colombia . Cote d’Ivoire . Israel . N. Korea
. Nepal . Chad
The yearly seriousness index from 2002–2011
14
international criminal law review 15 (2015) 1-39
<UN>
,
Rank Country ASI Rank Country ASI
DRC Somalia
Sudan Uganda
Iraq Liberia
Afghanistan Chad
Nepal CAR
Myanmar Columbia
Pakistan Ethiopia
Cote d’Ivoire Zimbabwe
Sri Lanka Syria
Burundi Israël, Yemen, Indonesia
The Aggregate Seriousness index () 2002–2011
index between 100–75; (2) the extremely grave are in the interval 75–50; (3)
the very grave situations are in the interval 50–25 and (4) the other countries
which have an between 25–0 are in the rest category.
In order to complement our results we did an additional qualitative analysis on
the countries at the top of our list. We analysed reports by s such as Human
Rights Watch, Amnesty International and the Coalition against the Use of Child
Soldiers. In order to assess whether a situation in a particular country was of inter-
national concern, we also looked at whether the Security Council has expressed
its concern over a particular situation and whether it explicitly addressed sexual
violence or the use of child soldiers in these situations. This qualitative analysis
provided additional information on the scope, nature, manner and impact of
human rights violations supplementing our quantitative assessment.
3.4 Results
The nal result of our analysis of the for the period 2002–2011 is presented
in Table2. One country qualies as by far the gravest situation in the world, this
is the Democratic Republic Congo () which is at the top of our list with an
of 78. The was in our top ten in each year in our -tables and ranked
Since the is computed by taking into account a position of a country on the top ten
list (i.e. range from 1 to 10) each year and the is created taking into account a period of
10 years, the ranges from 1 to 100 (the value of 100 would be ascribed to a country,
which consistently over the 10 years ranked as the most serious).
15
international criminal law review 15 (2015) 1-39
<UN>
rst three times. Next we have two countries which fall within the second
interval and qualify as extremely grave. They are Sudan with an of 73
and Iraq with and of 62. Sudan appeared in our top ten list nine times and
ranked rst four times, while Iraq is seven times in our yearly top ten list and
ranked rst three times. The third cluster of states can be qualied as very
grave situations. They have an overall between 50–25. These are the states
which gure on the overall list on the positions four to eight. These countries
were in the top ten at least ve times and in the top three at least once. They
are: Afghanistan, Nepal, Myanmar, Pakistan and Côte d‘Ivoire. Next we can
identify a fourth cluster of states which do not belong amongst the top eight of
grave situations. Countries like Sri Lanka, Burundi and Somalia fall short of just
1–2 points to make it into the third cluster of grave situations. Countries like
Uganda, Liberia, Chad and the Central African Republic () also fall short of
making it into cluster 3 of very grave countries but according to the index
nevertheless represent grave situations. With the exception of Liberia they all
were in the yearly top ten list at least 4 times. Liberia only ranked in the top ten
list twice (in the years 2002 and 2003) but in these years it ranked second in the
list ending up just below and Sudan.
From our analysis we can thus conclude that there are eight countries
which stand out representing the 75% gravest situations within the period
2002–2011. These eight countries are in order of gravity: , Sudan, Iraq,
Afghanistan, Nepal, Myanmar, Pakistan and Côte d’Ivoire. We, however, also
note that the is a gradual scale representing relative gravity. Given the lim-
ited resources and proclamations to focus on the most serious situations
around the world, it can be argued that the should be focusing on these top
eight countries.
As the ’s jurisdiction is not universal and in general the can proprio
motu initiate investigations only into situations within state parties we have
added a third table in which we list the gravest situations amongst the state
parties only (see Table3). If it wants to start investigations in non-state parties
it is fully dependent on a referral by the acting under Chapter VII of the
Charter. In our assessment of the ’s selection policy we need to take
this into account.
4 Assessment of Prosecutor’s Selection Policy
In this section we will assess the Prosecutor’s selection policy by comparing
the eight countries at the top of our list representing the gravest situations
in the world with the situations which the is investigating. The is
16
international criminal law review 15 (2015) 1-39
<UN>
,
Rank Country ASI Ratication
DRC
Afghanistan
Cote d’Ivoire
Burundi
Uganda
Liberia
Chad
CAR
Colombia
Guinea
Aggregate Seriousness index () 2002–2011 of state parties only
currently conducting investigations in eight situations and preliminary inves-
tigations in seven others. In section4.1 we will discuss the countries on our list
which the is investigating. In section4.2 we will discuss the countries
which are in our top eight list but which the is not investigating. In sec-
tion4.3 we will discuss the countries which are not on our list but which the
is nevertheless investigating. In our discussion we will focus on each coun-
try and will discuss our ndings from the quantitative as well as the qualitative
analysis in order to assess whether the is indeed focusing its attention of
the gravest situations. For each country we will furthermore describe as to
whether and when the has started investigations and discuss possible rea-
sons for its action or inaction.
4.1 Countries in our Top Eight List which are Investigated by the
The is conducting investigations in three countries (, Sudan and
Côte d’Ivoire) which are on our top eight list and is conducting preliminary
investigations in one more country (Afghanistan). In this section we will
describe the type of conict and crimes committed in these countries and
will briey indicate when and on whose initiative the started its
investigations.
4.1.1 Democratic Republic Congo ()
The has been conict-ridden ever since its independence in 1960 but
the ghting intensied in 1998 and has led to mass victimization, tremendous
sufering and huge refugee ows. Many diferent rebel forces were active in this
17
international criminal law review 15 (2015) 1-39
<UN>
V. Hawkins, Stealth Conlicts - How the World’s Worst Violence Is Ignored (Ashgate, Aldershot,
2008), 12. See also B. Coghlan et al., ‘Mortality in the Democratic Republic of Congo: a
nationwide survey’, Lancet (2006) 44–51. These gures are based on research in 2006 and
2008 and the number is probably even a lot higher now as the conict continued beyond
2008. See amongst others reports of Human Rights Watch (): , Renewed Crisis in
North Kivu (2007); , You will be punished - attacks on civilians in Eastern Congo (2009),
and , Always on the Run - the vicious cycle of displacement in Eastern Congo (2010). See
High Commissioner of Human Rights (2010, 15–16). See also , Soldiers who rape,
commanders who condone - sexual violence and military reform in the Democratic Republic
of Congo (2009). See also Amnesty International, No End to War on Women and Children
(2008). See also K. Johnson and J. Scott, B. Rughita, M. Kisielewski, J. Asher, R. Omg and
L. Lawry, ‘Association of sexual violence and human rights violations with physical and
mental health in territories of the Eastern Democratic Republic of the Congo’, 304
(2010) 553–562, www.lawryresearch.com/553.full.pdf. 23 March 2014. Report of the Special
Rapporteur on the situation of human rights in the (A/55/403). See Press statement
by Mr. Phillip Alston, Special Rapporteur on Extrajudicial, Summary or Arbitrary execu-
tions, Mission in the from 5 to 15 October 2009. The organization child soldiers inter-
national focuses on as one of its priority countries as the problem of child soldiers is
persistent and all parties in the conict use child soldiers, www.child-soldiers.org/our
_work.php, 27 April 2014. The Global Reports by the Coalition to Stop the Use of Child
Soldiers in the years 2004, 2008 and 2012 all report of the use of child soldiers by the
government. The report can be retrieved at: www.child-soldiers.org/, 15 December 2013.
See also Human Security Centre, Human Security Report 2005 - War and peace in the 21st
Century (Oxford University Press, Oxford, 2005), p. 114.
Global Report of the Coalition to Stop the Use of Child Soldiers 2008, ibid.
Following the assessment of P. Johansson, ‘The Humdrum Use of Ultimate Authority:
Dening and Analysing Chapter VII Resolutions’, 78 Nordic Journal of International Law
(2009), p. 341.
period committing atrocious crimes and the conict was intertwined with past
and ongoing conicts in neighbouring African countries, most prominently
Rwanda and Uganda. It is estimated that over 5.4 million people died - the vast
majority of them not due to violence but as a result of hunger, thirst and illnesses
while being on the run. Next to the enormous scale on which crimes were com-
mitted, the nature of the crimes and the manner of commission have ensured
that the impact of the crimes which have been committed by government forces
and rebels alike is tremendous. It is estimated that 30,000 child soldiers were
active on all sides within the conict and that sexual violence was widespread.
The conict became a concern for the international community soon after its
start thus indicating that its impact stretched beyond the territory of the country
itself. The rst time the Security Council used its powers under Chapter VII in
relation to the was in resolution 1234 (1999) when it expressed:
18
international criminal law review 15 (2015) 1-39
<UN>
,
Subsequent concerns were raised in S/RES/1234 (1999); S/RES/1258 (1999); S/RES/1279
(1999); S/RES/1291 (2000); S/RES/1304 (2000); S/RES/1316 (2000); S/RES/1323 (2000);
S/RES/1332 (2000); S/RES/1341 (2001); S/RES/1355 (2001); S/RES/1376 (2001); S/RES/1417
(2002); S/RES/1445 (2002); S/RES/1457 (2003); S/RES/1468 (2003); S/RES/1484 (2003);
S/RES/1489 (2003); S/RES/1493 (2003); S/RES/1499 (2003); S/RES/1501 (2003); S/
RES/1533 (2004); S/RES/1552 (2004); S/RES/1555 (2004); S/RES/1565 (2004); S/RES/1592
(2005); S/RES/1596; S/RES/1616 (2005); S/RES/1621 (2005); S/RES/1635 (2005); S/
RES/1649 (2005); S/RES/1693 (2006); S/RES/1698 (2006); S/RES/1711 (2006); S/RES/1736
(2006); S/RES/1756 (2007); S/RES/1768 (2007); S/RES/1771 (2007); S/RES/1794 (2007); S/
RES/1799 (2008); S/RES/1807 (2008); S/RES/1843 (2008); S/RES/1856 (2008); S/RES/1857
(2008); S/RES/1896 (2009); S/RES/1906 (2009); S/RES/1925 (2010); S/RES/1952 (2010); S/
RES/1991 (2011); S/RES/2021 (2011); S/RES/2053 (2012); S/RES/2076 (2012); S/RES/2078
(2012); S/RES/2098 (2013).
The Security Council explicitly addressed sexual violence and the use of child soldiers
in S/RES/1332 (2000); S/RES/1341 (2001); S/RES/1355 (2001); S/RES/1468 (2003); S/
RES/1493 (2003); S/RES/1592 (2005); S/RES/1698 (2006), S/RES/1771 (2007); S/RES/1794
(2007); S/RES/1807 (2008); S/RES/1843 (2008); S/RES/1856 (2008); S/RES/1896 (2009); S/
RES/1906 (2009); S/RES/1925 (2010); S/RES/1952 (2010); S/RES/1991 (2011); S/RES/2021
(2011); S/RES/2053 (2012); S/RES/2076 (2012); S/RES/2078 (2012) and S/RES/2098 (2013).
S/RES/1258 (1999); S/RES/1273 (1999); S/RES/1279 (1999); S/RES/1291 (2000); S/RES/1304
(2000); S/RES/1316 (2000); S/RES/1332 (2000); S/RES/1341 (2001); S/RES/1355 (2001);
S/RES/1376 (2001); S/RES/1417 (2002); S/RES/1445 (2002); S/RES/1468 (2003); S/
RES/1484 (2003); S/RES/1489 (2003); S/RES/1493 (2003); S/RES/1501 (2003); S/RES/1555
(2003); S/RES/1565 (2004); S/RES/1592 (2005); S/RES/1621 (2005); S/RES/1628 (2005); S/
RES/1635 (2005); S/RES/1669 (2006); S/RES/1671 (2006); S/RES/1693 (2006); S/RES/1711
(2006); S/RES/1736 (2006); S/RES/1742 (2007); S/RES/1751 (2007);S/RES/1756 (2007); S/
RES/1794 (2007); S/RES/1843 (2008); S/RES/1856 (2008); S/RES/1906 (2009); S/RES/1925
(2010); S/RES/1991 (2011); S/RES/2053 (2012). Its mandate currently is scheduled to end
on 31 March 2014 in accordance with S/RES/2098 (2013).
its concern at all violations of human rights and international humani-
tarian law in the territory of the Democratic Republic of the Congo,
including acts of and incitement to ethnic hatred and violence by all par-
ties to the conict, … [and stressed] that the present conict in the
Democratic Republic of the Congo constitutes a threat to peace, security
and stability in the region.
The Security Council furthermore explicitly voiced its concern about the
pervasive sexual violence and use of child soldiers during the conict and
peacekeeping forces with Chapter VII mandates have been active in the .
Our qualitative analysis conrms the extreme nature of the conict in the
which can without doubt be considered one of the worst in the world. It is
19
international criminal law review 15 (2015) 1-39
<UN>
Estimate by Hawkins, supra note 37, p. 14.
Hawkins, ibid., p. 16.
J. Hagan and W. Rymond-Richmond, Darfur and the Crime of Genocide, (Cambridge
University Press, Cambridge, 2009). See also the Cassese report: report of the International
commission of Inquiry on Darfur to the United Nations secretary general (2005).
See , Darfur in the shadows - the Sudanese government’s ongoing attacks on civilians
and human rights (2011); , There is no protection - Insecurity and human rights in
Southern Sudan (2009); , Five years on - no justice for sexual violence in Darfur (2008);
, Sexual violence and its consequences among displaced persons in Darfur and Chad
(2005); , Targeting the Fur: Mass killings in Darfur (2005); , No end to violence in
Darfur (2012).
See Global Reports by the Coalition to Stop the Use of Child Soldiers in 2004, 2008 and
2012, supra note 37.
consequently fully justied that the is investigating the situation in the
. The is a party to the as of 2002 and self-referred the situation to
the on 3 March 2003 after some pressure from the Prosecutor who
indicated that he would otherwise start investigations proprio motu. The inves-
tigation into the started in 2004 and so far has led to six arrest warrants,
two convictions and one acquittal.
4.1.2 Sudan
Sudan is listed second in our overall list. Sudan has been a conict ridden and
war torn country since it gained its independence in 1956. There are several
conicts going on within the country and these conicts are intertwined with
the conicts in neighbouring countries. There are many diferent armed mili-
tias active next to the government forces. Some of these groups are armed by
the government, others are ghting the government. A cease re was reached
in 2002 but the ghting nevertheless continued. There are two main conict
areas: South Sudan and Darfur. According to Hawkins the ghting in South
Sudan led to 2 million deaths - most of them can be considered indirect
deaths and include people who died from illnesses and malnutrition while on
the run for violence. During the violence in Darfur where armed rebellion
groups fought the government an estimated 300,000 people lost their lives.
There has been an extensive debate as to what extent the violence in Darfur
amounted to genocide. In 2011 the country split after a referendum into South
Sudan and Sudan. Shortly thereafter violence between the countries over dis-
puted borders broke out again. A lot of violence was directed against civilians
and there is widespread use of sexual violence. There are allegedly 20,000
child soldiers active in the conict and they are used by the government and
government backed militias like the Janjaweed and rebel forces like the .
20
international criminal law review 15 (2015) 1-39
<UN>
,
F. Grünfeld and W. Vermeulen, ‘Failures to Prevent Genocide in Rwanda (1994), Srebrenica
(1995), and Darfur (since 2003)’, 4 Genocide Studies and Prevention (2009), p. 229.
S/PRST/2004/18; S/RES/1547 (2004).
S/RES/1556 (2004).
Ibid.
Ibid.; S/RES/1574 (2004); S/RES/1590 (2005); S/RES/1591 (2005); S/RES/1663 (2006); S/
RES/1706 (2006); S/RES/1709 (2006); S/RES/1713 (2006); S/RES/1714 (2006); S/RES/1755
(2007); S/RES/1769 (2007); S/RES/1779 (2007); S/RES/1784 (2007); S/RES/1812 (2008);
S/RES/1828 (2008); S/RES/1841 (2008); S/RES/1870 (2009); S/RES/1881 (2009); S/
RES/1891 (2009); S/RES/1919 (2010); S/RES/1935 (2010); S/RES/1945 (2010); S/RES/2003
(2011); S/RES/2035 (2012); S/RES/2063 (2012); S/RES/2091 (2013); S/RES/2113 (2013).
Grünfeld and Vermeulen see supra note 48, pp. 229–230; S/RES/1564 (2004).
S/RES/1547 (2004); extended in S/RES/1574 (2004); S/RES/1585 (2005); S/RES/1588
(2005); S/RES/1590 (2005); S/RES/1627 (2005); S/RES/1663 (2006); S/RES/1679 (2006);
S/RES/1706 (2006); S/RES/1709 (2006); S/RES/1714 (2006); S/RES/1755 (2007);
Alarm about the conict in Darfur started to be expressed by states, s
and international organizations in 2003 and in 2004. In a presidential state-
ment in May 2004 the Security Council expressed its ‘grave concern’ and a
month later in June the Security Council also adopted a resolution in which it
expressed its “utmost concern at the consequences of the prolonged conict
for the civilian population of Sudan” and called for an immediate halt in the
ghting in Darfur. Subsequently in July 2004 the Security Council adopted a
resolution where it condemned the attacks on civilians, explicitly mentioning
rapes and forced displacements. In this resolution the Security Council also
noted the situation in Sudan constitutes a threat to international peace and
security. In the years that followed the Security Council reiterated its concern
about the situation in Darfur numerous times, often also expressing its con-
cern about the use of child soldiers and the sexual violence which formed part
of the conict. After the United States and the European Parliament labelled
the violence in Darfur genocide, or tantamount thereof, a resolution was
adopted which called for an inquiry whether the violence in Darfur could be
qualied as genocide. In 2004 the United Nations Advance Mission in Sudan
(, later ) was established and the African Union committed
itself to a peacekeeping mission (the African Union Mission in Sudan, )
which would eventually be transformed into the African Union/United Nations
Hybrid Operation in Darfur (). Overall we can conclude that the
situation in Sudan is without doubt extremely grave considering its particular
characteristics relating specically to the nature of the crime (widespread sex-
ual violence), manner of commission (government involvement) and impact
(both domestically as well as internationally).
21
international criminal law review 15 (2015) 1-39
<UN>
S/RES/1769 (2007); S/RES/1784 (2007); S/RES/1812 (2008); S/RES/1828 (2008); SRES/1870
(2009); S/RES/1881 (2009); S/RES/1919 (2010); S/RES/1935 (2010); S/RES/1978 (2011); S/
RES/1997 (2011); S/RES/2003 (2011); S/RES/2063 (2012); S/RES/2113 (2013).
, Troops in contact - Airstrikes and civilian deaths in Afghanistan (2008) and , The
human costs - the consequences of insurgent attacks in Afghanistan (2007): , Blood
stained hands - past atrocities in Kabul and Afghanistan’s legacy of impunity (2005).
Hawkins, supra note 37, p. 15.
See Global Reports Coalition to Stop the use of Child Soldiers 2004, 2008, 2012.
S/RES/1267 (1999).
Sudan is not a party to the . The however referred the situation of
Darfur to the on 31 May 2005 in Resolution 1593. This was the rst time
the used its powers on the basis of Chapter VII to refer a situation to the
. Taking the tremendous violence and sufering into consideration this
seems fully justied. It has to be noted however that the only referred the
situation of Darfur to the and that the consequently does not have
jurisdiction for the crimes committed in other areas within Sudan. The has
issued six arrest warrants amongst which one against Al-Bashir the president
of Sudan.
4.1.3 Afghanistan
Afghanistan is listed fourth on our overall list and second when we take into
account only the state parties to the . Afghanistan has been a war torn
country for many years. After 9/11 the launched an attack against the coun-
try in order to remove the Islamic Taliban, which allegedly supported and har-
boured Al Qaeda suspects, from power. Under auspices of the an interim
government was installed but the Taliban regrouped as insurgent groups and
as of 2005 an armed conict started. It had a violence peak in 2006 and 2009–
2010. In this conict civilians have been systematically targeted. According
to Hawkins in the entire period of conict over 500,000 people died. Child
soldiers are not used by the national army but are used by other elements of
state armed forces, government backed forces and insurgent groups. Women
are discriminated but there are no specic reports of sexual violence.
The Security Council expressed its concern about the situation in Afghanistan
already in 1999. In a Chapter VII resolution it expressed its “deep concern over
the continuing violations of international humanitarian law and of human
rights, particularly discrimination against women and girls, and over the signi-
cant rise in the illicit production of opium” and deplored the fact that Taliban
was providing Osama Bin Laden with a safe haven. After the attacks against
the on 9/11 the Security Council followed through by noting it was “deter-
mined to combat by all means threats to international peace and security caused
22
international criminal law review 15 (2015) 1-39
<UN>
,
S/RES/1368 (2001).
The Security Council continued by recognizing “the robust eforts taken by and
other international forces to minimize the risk of civilian casualties” S/RES/1806 (2008).
S/RES/1806). This concern was reiterated for instance in S/RES/ 1868 (2009); S/RES/1917
(2010); S/RES/1974 (2011); S/RES/2011 (2011); S/RES/2041 (2012); S/RES/2069 (2012);
S/RES/2096 (2013).
www.isaf.nato.int/history.html, 27 April 2014; S/RES/1413 (2002); S/RES/1444 (2002);
S/RES/1510 (2003); S/RES/1563 (2004); S/RES/1623 (2005); S/RES/1659 (2006); S/
RES/1707 (2006); S/RES/1776 (2007); S/RES/1833 (2008); S/RES/1890 (2009);S/RES/1943
(2010); S/RES/1974 (2011); S/RES/2011 (2011); S/RES/2069 (2012).
S/RES/1401 (2002); extended with resolution S/RES/1471 (2003); S/RES/1536 (2004); S/
RES/1589 (2005); S/RES/1662 (2006); S/RES/1746 (2007);S/RES/1806 (2008); S/RES/1868
(2009); S/RES/1917 (2010); S/RES/1974 (2011); S/RES/2041 (2012); S/RES/2096 (2013).
See - Report on preliminary examinations.
by terrorist acts” and “expresse[ed] its readiness to take all necessary steps to
respond to the terrorist attacks”. The concern of the Security Council was
focused on but not limited to the concern caused by terrorism. The also
expressed its concern “about all civilian casualties” and called on the parties to
comply with international humanitarian law and human rights law and to
ensure civilians would be protected. In this resolution it also explicitly
expressed its concern about the recruitment and use of child soldiers by the
Taliban. In December 2001 resolution 1386 established the International
Security Assistance Force (). assumed the leadership over in
2003 and is currently still operative in Afghanistan. In 2002 the Security Council
created the United Nations Assistance Mission in Afghanistan (). The
situation within the country is grave and the concern of the international com-
munity is clear.
Afghanistan became a party to the Statute in 2003. The started investi-
gations into Afghanistan in 2006 but according to the these investigations
are hampered by the lack of cooperation, security issues and nancial con-
straints. This investigation is consequently still in its preliminary phase and
no arrest warrants have been issued yet.
4.1.4 Côte d’Ivoire
The situation in Côte d’Ivoire has been persistently grave throughout the last
ten years. It does not make it to the yearly lists of the gravest countries from
2008–2010 but re-appears in 2011 on the top of the list with a heightened death
toll at the hands of both government and non-governmental forces. It is listed
as eighth on the overall list and the third when only the state parties are
considered. Côte d’Ivoire was a prosperous country until the economy started
23
international criminal law review 15 (2015) 1-39
<UN>
, They killed them like it was nothing - the need for justice for Côte d’Ivoire post-election
crimes (2011).
See , Côte d’Ivoire: Targeting Women: The Forgotten Victims of the Conlict (2007).
See Global Reports by the Coalition to Stop the Use of Child Soldiers in 2004, 2008 and
2012, supra note 37.
S/RES/1464 (2003); S/RES/1498 (2003); S/RES/1527 (2004); S/RES/1528 (2004).
S/RES/1479 (2003); S/RES/1514 (2003); S/RES/1527 (2004); S/RES/1528 (2004); S/
RES/1572 (2004); S/RES/1603 (2005); S/RES/1609 (2005); S/RES/1633 (2005); S/RES/1643
(2005); S/RES/1657 (2006); S/RES/1682 (2006); S/RES/1721 (2006); S/RES/1726 (2006); S/
RES/1727 (2006); S/RES/1739 (2007); S/RES/1826 (2008); S/RES/1842 (2008); S/RES/1865
(2009); S/RES/1880 (2009); S/RES/1893 (2009); S/RES/1911 (2010); S/RES/1933 (2010);
S/RES/1946(2010); S/RES/1962 (2010); S/RES/1967 (2011); S/RES/1975 (2011); S/RES/1980
(2011); S/RES/2000 (2011); S/RES/2045 (2012) S/RES/2062 (2012); S/RES/2101 (2013);
S/RES/2112 (2013).
S/RES/1528 (2004); S/RES/1584 (2005); S/RES/1594 (2005); S/RES/1600 (2005); S/
RES/1603 (2005); S/RES/1609 (2005); S/RES/1652 (2006); S/RES/1657 (2006); S/RES/1726
(2006); S/RES/1739 (2007); S/RES/1763 (2007); S/RES/1765(2007); S/RES/1795 (2008); S/
RES/1826 (2008); S/RES/1880 (2009); S/RES/1911 (2010); S/RES/1924 (2010); S/RES/1933
(2010); S/RES/1942(2010); S/RES/1951 (2010); S/RES/1962 (2010); S/RES/1967 (2011); S/
RES/1968 (2011); S/RES/1981 (2011); S/RES/1992 (2011); S/RES/2000 (2011); S/RES/2062
(2012); S/RES/2112 (2013).
to recede and political upheaval started in the 1980s. In 1999 the rst coup
d’état was committed and in 2000 Gbagbo took over power using force and
violence to ght of his opponents. In 2002 a rebellion started leading to an
armed conict between the government and the rebels which ocially ended
in December 2003 with the signing of a peace agreement but violence contin-
ued in the years 2005–2007 until a new power sharing agreement was signed.
After he lost the elections in 2010 Gbagbo initiated a new spray of violence in
which civilians were attacked and the use of sexual violence was widespread.
The violence was in many cases committed by government forces. Child sol-
diers have been used by all parties in the conict.
In 2003 the Security Council qualied the situations as “a threat to interna-
tional peace and security in the region” and supported the deployment of a
peacekeeping force by the Economic Community of West African States
() and France. It also established a political mission with a military
component, United Nations Mission in Côte D’Ivoire (), in 2003 and
has reiterated its concerns about the Côte d’Ivoire in subsequent resolutions
often explicitly condemning the use of child soldiers and sexual violence.
In 2004 the Council authorized, while acting under Chapter VII, to send troops
to Côte d’Ivoire and established the United Nations Operation in Côte d’Ivoire
(). After elections resulted in violence, the Security Council decided
24
international criminal law review 15 (2015) 1-39
<UN>
,
See www.iraqbodycount.org/, 27 April 2014.
Hawkins, supra note 37, p. 16. See also estimates by Coghlan et al, see supra note 37.
See for instance Public Statement: Amnesty International greatly concerned by rising
toll of civilian killings, including for discriminatory motives, statement 10 August 2006. See
also , At a crossroads - human rights in Iraq eight years after the -led invasion (2011);
, They want us exterminated (2009); , The silent treatment - leeing Iraq, surviving
in Jordan (2006); , A face and a name - civilian victims of insurgent groups in Iraq (2005).
See Global Report of the Coalition to Stop the Use of Child Soldiers in 2004, 2008, 2012.
in resolution 1962 that Ouattara had won the elections which was subsequently
armed in resolution 1975 which authorized to “use all necessary
means” to protect the civilian population.
Côte d’Ivoire became a party to the Statute in 2013 but on 18 April 2003
it had already led a declaration that it would accept the jurisdiction of the
Court as of 19 September 2002. An investigation into this situation was trig-
gered by the Prosecutor proprio motu in June 2011. On 3 October 2011 the
Prosecutor received authorization from the Pre-Trial Chamber to open investi-
gations. Three arrest warrants have been issued so far amongst which one
against former president Laurent Gbagbo and one against his wife Simone
Gbagbo.
4.2 Countries on our List which the Is not Investigating
In this section we will discuss the countries which are in our top eight list but
which are not investigated by the . Next to describing the situations and
crimes committed in the country we will search for the possible reasons as to
why the has not started investigations into these countries.
4.2.1 Iraq
Since 1979 Iraq had been under the rule of Saddam Hussein, an authoritarian
dictator who used extensive force and violence during his period in power. In
March 2003 an alliance of the , and Australia invaded Iraq and toppled
Saddam Hussein. A new government was installed but insurgencies and civil
war plagued the country. The project Iraq Body Count estimates the number of
direct civilian deaths between 114,000–125,000 with a clear peak in the period
2006–2007. Others estimate that the total death toll (including battle related
deaths and non-battle related deaths as well as indirect deaths) to be between
150,000–650,000. A number of rebellious armed groups as well as the govern-
ment itself are responsible for the numerous deaths. Child soldiers were used
by insurgent groups but not by the government and overall the problem of
child soldiering is far less widespread than in and Sudan.
25
international criminal law review 15 (2015) 1-39
<UN>
For a list of Chapter VII resolutions see Johansson, supra note 39, p. 339.
Ronald C. Kramer and Raymond J. Michalowski, ‘War, Aggression and State Crime: A
Criminological Analysis of the Invasion and Occupation of Iraq’, 45 British Journal of
Criminology (2005), p. 450.
S/RES/1472 (2003); S/RES/1483 (2003).
Concerning : S/RES/1500 (2003); S/RES/1511 (2003); S/RES/1557 (2004); S/
RES/1619 (2005); S/RES/1700 (2006); S/RES/1770 (2007); S/RES/1830 (2008); S/RES/1883
(2009); S/RES/1936 (2010); S/RES/2001 (2011); S/RES/2061 (2012); S/RES/2110 (2013).
Concerning the multinational force: S/RES/1546 (2004); S/RES/1637 (2005); S/RES/1723
(2006); S/RES/1790 (2007).
S/RES/1770 (2007); S/RES/1830 (2008); S/RES/1883 (2009).
Elizabeth C. Minogue, ‘Increasing the Efectiveness of the Security Council’s Chapter VII
Authority in the Current Situations Before the International Criminal Court’, 61 Vand. L.
Rev. (2008) 677–679.
The situation in Iraq has been a concern for the Security Council since the
early 1990s. Despite the Chapter VII resolution 1441 from 2002 which “warned
Iraq that it will face serious consequences as a result of its continued violations
of its obligations” the Security Council never went as far as to authorise the use
of force against Iraq. Several resolutions after the invasion of Iraq stressed
the importance that the parties abide by international law and in particular
the Geneva Conventions. In 2003 the United Nations Assistance Mission for
Iraq () was created and in a subsequent resolution “a multinational
force under unied command to take all necessary measures to contribute to
the maintenance of security and stability in Iraq”. The humanitarian situa-
tion in Iraq, however, remained troubling and the Security Council has repeat-
edly expressed its concern.
Next to Sudan and , Iraq is clearly the gravest situation within the world
over a long period of time and should in principle be investigated by the
. Iraq however is not a party to the and starting investigations into
Iraq would therefore only be possible if the would refer the situation to
the . The can only do so when it acts under Chapter VII of the
Charter and there is a threat to international peace and security. Since
Iraq has been a major concern of the since the 1990s and the has
frequently acted under Chapter VII to address the situation in Iraq, the situa-
tion certainly seems grave enough. However, unlike the , the is rst
and foremost a political institution and a referral of the situation in Iraq to the
is for this reason unlikely to materialize. The United States has been unwill-
ing to risk subjecting its citizens to the jurisdiction of the which has led to
a sceptical attitude towards the by the in general. The permanent
members of the Security Council are rst and foremost concerned with their
26
international criminal law review 15 (2015) 1-39
<UN>
,
David P. Forsythe, ‘The Security Council and Response to Atrocities: International
Criminal Law and the P-5’, 34 Human Rights Quarterly (2012) 850.
Ibid., p. 843.
See www.icc-cpi.int/NR/rdonlyres/04D143C8-19FB-466C-AB77-4CDB2FDEBEF7/143682/
OTP_letter_to_senders_re_Iraq_9_February_2006.pdf, 23 March 2014.
DeGuzman, supra note 9, p. 1461.
DeGuzman and Schabas, supra note 5.
See the Press Statement www.icc-cpi.int/en_menus/icc/structure%20of%20the%20
court/oce%20of%20the%20prosecutor/reports%20and%20statements/statement/
Pages/otp-statement-iraq-13-05-2014.aspx, 21 March 2014.
respective national interest and this is no diferent when it comes to
their decisions regarding the . Forsythe nds a double standard has
been guiding the choices of the . He argues the advocates international
criminal justice for others “while shielding Americans from the very same
process”.
Not all crimes committed within Iraq are however out of the ’ reach.
The does have jurisdiction for the crimes committed in Iraq by nationals
of state parties such as the . After numerous communications the
looked into allegations of British soldiers who had allegedly committed inter-
national crimes in Iraq. In February 2006 the Prosecutor however declared that
the “requirements to seek authorization to initiate an investigation in the situ-
ation in Iraq have not been satised”. The decided not to investigate
these crimes because the number of victims in Iraq at the hands of British forces
was much less in comparison to its other cases. The consequently declined
to investigate these crimes given the lack of relative gravity. In doing so the
“Prosecutor explicitly prioritized the number of victims over other factors such
as the fact that the crimes were (arguably) committed as part of an aggressive
war ”. The decision was criticized by a number scholars and raises the ques-
tion as to whether the gravity assessment at this stage should be related to the
situation (Iraq overall) or only individual cases for which the has jurisdic-
tion (the alleged crimes of the British soldiers in Iraq). Very recently - on 13
May 2014- the Prosecutor of the announced that she will re-open the
preliminary investigations on the alleged crimes committed by the armed
forces of the deployed in Iraq between 2003 and 2006 on the basis of new
and additional information received by the Court. Despite this new develop-
ment, the fact that - apart from the crimes committed by the British military -
Iraq stays out of the reach of the , is a severe shortcoming of the functioning
of the international criminal justice system, but blame for this may not be
attributed entirely to the .
27
international criminal law review 15 (2015) 1-39
<UN>
, Between a rock and a hard place - civilians struggle to survive Nepal’s civil war (2004).
See Global Reports of the Coalition to Stop the Use of Child Soldiers 2004, 2008 and 2012,
supra note 37 and , Children in the ranks - the Maoist use of child soldiers in Nepal
(2007).
, Adding insult to injury (2011); , Indiference to duty (2010); , Waiting for
justice (2008).
S/RES/1740 (2007); S/RES/1796 (2008); S/RES/1825 (2008); S/RES/1864 (2009); S/
RES/1879 (2009); S/RES/1909 (2010); S/RES/1921 (2010); S/RES/1939 (2010).
, They came and destroyed our village - the plight of displaced persons in Karen State
(2005); , Crackdown - repression of the 2007 popular protest in Burma (2007); ,
Burma’s forgotten prisoners (2009); , All you can do is pray - crimes against humanity
and ethnic cleansing of Rohingya Muslims in Burma’s Arakan state (2013).
, The government could have stopped this - sectarian violence and ensuing abuses in
Burma’s Arakan state (2012).
In the Global report of the Coalition to Stop the Use of Child Soldiers 2008, Myanmar is
called the most notable ofender - i.e. government using child soldiers, p. 5 summary. See
also , My gun was as tall as me - Child soldiers in Burma (2002).
S/PRST/2007/37; S/PRST/2008/13.
4.2.2 Nepal, Myanmar and Pakistan
Nepal sufered from a civil war between 1995–2006 during which Maoist rebels
fought the regime. Nepal was in the top ve of our list between 2002 and 2005.
Both the Communist rebellious party as well as the government forces were
responsible for the violence. Civilians were attacked and child soldiers were
used in the conict by the rebellious factions and as spies by the government
forces. The conict was ended after the peace talks in 2006. The situation has
calmed down and it did not reappear in the top 10 list after 2006. In relation to
the crimes committed in this period there is still widespread impunity.
Strikingly, the Security Council only adopted resolutions from 2007 onwards
when it decided to establish the United Nations political mission in Nepal
().
Myanmar was a military dictatorship from 1962–2011 known to oppress all
political opposition and in which ethnic cleansing took place. The country
was also plagued by sectarian violence. Elections took place in 2010 and in
2011 a civil government was installed. Myanmar appears on our list as of 2005
and with the exception of 2008 was continuously in the top 10. In 2007 it was
ranked third. Myanmar is one of the countries in which the problem of child
soldiers (used by all parties) is considered to be one of the worst around the
world. The Security Council has done little in relation to the violence in
Myanmar. There are no Security Council resolutions although there are some
presidential statements in the period under review in this article.
28
international criminal law review 15 (2015) 1-39
<UN>
,
Global Reports by the Coalition to Stop the Use of Child Soldiers in 2004, 2008 and 2012.
Pakistan has been under military rule for many years. Musharraf, who
claimed power after a military coup in 1999, stayed in power until 2008 when
parliamentary elections were held. The levels of violence are the consequence
of repression, political violence against the government and territorial and
regional disputes for which many diferent groups including the government
are responsible. Pakistan appeared on the list in 2006 and even ranked rst in
2010 (together with the ) and although the government is not using child
soldiers, rebel forces are. There are no Security Council resolutions explicitly
on Pakistan in the period covered by this article.
All these countries are marked by periods of excessive violence which seem
to warrant attention of the . They rank in the positions ve to seven on the
basis of the . Neither of these three countries are however party to the
Statute. The consequently lacks jurisdiction over the crimes committed.
Starting investigations in these three states would only be possible if the sus-
pects are nationals of a state party, if the country itself would accept jurisdic-
tion of the on an ad hoc basis or if the would refer the situation to
the . This can only be done if the situation is considered a threat to interna-
tional peace and security and the acts under Chapter VII of the
Charter. Despite the fact that we can clearly conclude that the situation in all
three of these countries is or was grave these countries do not, according to the
, pose a threat to international peace and security.
4.3 Countries not on our List but which the is Nevertheless
Investigating
The has started investigations in ve situations which according to our list
would not be amongst the eight gravest. These countries are Uganda, Central
African Republic (), Kenya, Libya and Mali. In addition, we will very briey
address the recent situation that was referred to the by Comoros. The
furthermore started preliminary investigations into another six situations
which do not appear in our top eight list: Colombia, Georgia, Guinea, Honduras,
Korea and Nigeria. We will briey discuss the violence within these states and
the reasons why the has started investigations into these situations.
4.3.1 Uganda
Uganda is party to the since 2002 and the situation was referred to the
by the government of Uganda on 16 December 2003. Investigations started on
29 July 2004. Uganda ranks 12 on our overall list and 5 on the list of state
parties to the . There was a peak of violence in 2002–2006. Most of the
29
international criminal law review 15 (2015) 1-39
<UN>
, Get the Gun - Human Rights violations by Uganda’s national army in law enforcement
operations in Karamoja region (2007). , Uprooted and forgotten - impunity and human
rights abuses in Northern Uganda (2005) and , State of pain - torture in Uganda (2004).
Human Security Report, supra note 37, p. 115.
S/RES/1812 (2008). See www.securitycouncilreport.org/un-documents/lra-afected-
areas/, 27 April 2014.
S/RES/1653 (2006).
press release: Prosecutor opens investigation in the Central African Republic. www
.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/2007/Pages/
prosecutor%20opens%20investigation%20in%20the%20central%20african%20republic
.aspx, 27 April 2014.
violence in Uganda is committed by the but the government too is respon-
sible for certain crimes. The use of both sexual violence and child soldiers is
widespread. According to the Human Security Report Uganda is next to
and Sierra Leone the country in which the problem of child soldiers is the grav-
est. The has 20,000 child soldiers within its ranks - most of whom have
been abducted while the girls have often been subjected to sexual violence.
Although the Security Council has not adopted any resolutions explicitly deal-
ing with Uganda it has expressed its concern in resolutions on the Great Lakes
region and the conict in Sudan. In resolution 1653 for instance it expressed
its deep concern at the devastating impact of conict and insecurity on
the humanitarian situation throughout the Great Lakes region and their
implications for regional peace and security, especially where arms and
armed groups move across borders, such as the long-running and brutal
insurgency by the Lord’s Resistance Army () in northern Uganda
which has caused the death, abduction and displacement of thousands
of innocent civilians in Uganda, the Sudan and the Democratic Republic
of the Congo.
The fact that the started investigations seems fair - many crimes have
been committed and the situation can without doubt be described as grave
according to the standards and it ranks high on the list of gravest situa-
tions (5) of the state parties.
4.3.2 Central African Republic ()
The ratied the Rome Statute in 2001 and referred the situation to the
in 2004. The decision to open investigations, however, was not made until
2007, at which time the country had been among the most serious situations
according to our data. Overall the ranks 15 on our list of gravest countries
30
international criminal law review 15 (2015) 1-39
<UN>
,
, State of anarchy - rebellion and abuses against civilians (2007). Amnesty Inter-
national, Central African republic: Civilians in peril in the wild north (2007).
, supra note 101.
See Global reports on the Coalition of the use of child soldiers 2004, 2008, 2012, supra note 37.
There are no resolutions explicitly and exclusively dealing with between 2002–2010
although the situation is incorporated into some overarching resolutions. www.security
councilreport.org/un-documents/chadcar/, 17 March 2014.
S/RES/1834 (2008).
S/RES/1778 (2007). Other resolutions where it was conrmed that it constituted a threat
to international peace and security include S/RES/1834 (2008); S/RES/1861 (2009);
S/RES/1913 (2010); S/RES/1922 (2010); S/RES/1923 (2010).
S/RES/1778 (2007).
S/RES/2031 (2011); S/RES/2088 (2013).
and 8 on the state parties list. is known for ethnic tensions since
1990. In 2001 the situation grew worse but calmed down after Bozize seized
power in 2003 but violence resumed in 2006. Many violations were committed
by the government forces and violence was directed against civilians. Sexual
violence was also widespread and severe. Child soldiers are used but mainly
by non-state parties in the conict.
The Security Council has not made use of its Chapter VII powers concerning
the violence which swept over the country in the early 2000s and there has
been a remarkable lack of Security Council resolutions about during this
time. The Security Council addressed the conict in mostly in resolu-
tions dealing with the entire sub-region, specically in relation to Chad and
the consequences of the conict in Darfur. In 2007 the Security Council
determined that the “situation in the region of the border between the Sudan,
Chad and the Central African Republic constitutes a threat to international
peace and security”. It therefore decided to establish the United Nations
Mission in the Central African Republic () which was to pay
particular attention to sexual and gender-based violence and the recruitment
and use of child soldiers and authorized the deployment of a European Union
operation. Only two more recent resolutions relate explicitly to and the
United Nations Integrated Peacebuilding Oce in the Central African Republic
(). In resolution 2031 from 2011 the Security Council
strongly condemned the continued violations of international humanitar-
ian and human rights law, including the recruitment and use of children,
killing and maiming, rape, sexual slavery and other sexual violence and
abductions perpetrated by armed groups, and specically the that
threaten the population as well as peace and stability in the Central
31
international criminal law review 15 (2015) 1-39
<UN>
Pre Trial Chamber II Decision Pursuant to Article 15 of the Statute on the Authorization
of an Investigation into the Situation in the Republic of Kenya No.: ICC01/09.
S. Brown and C.L. Sriram, ‘The Big Fish won’t Fry Themselves: Criminal accountability for
post-election violence in Kenya’, 111 African Afairs (2012) 248.
M.K. Juma, ‘African mediation of the Kenya post-2007 election crisis’, 27 Journal of
Contemporary African Studies (2009) 407–430.
There was a statement of the president and a council brieng on the topic S/PRST/2008/4
and /.5845. In its presidential statement the Security Council expressed “its deep con-
cern that … civilians continue to be killed, subjected to sexual and gender based violence
and displaced from their homes” but welcomed the diplomatic eforts of a.o. Ko Annan
and the African Union.
M.C. Nmaju, ‘Violence in Kenya: Any Role for the in the Quest for Accountability’, 3
Afr. J. Leg. Stud. (2009) 78–95.
African Republic and the sub region and calls on to report on
human rights violations perpetrated by armed groups particularly against
children and women.
Overall we can state that the violence was severe and according to the ’s
standards it denitely qualies as grave and the fact that the is investigat-
ing this situation seems justied also taking into account that gures in
the top ten of the state parties list.
4.3.3 Kenya
Kenya had been party to the Statute as of 2005. Investigations started on the
initiative of the Prosecutor (proprio motu). On 31 March 2010 the Pre-Trial
Chamber II decided that the Prosecutor could open investigations into the elec-
tion violence which had taken place in Kenya in 2007–2008. Kenya does not
appear on our top eight list and does not rank within the top twenty of the
overall period. Kenya however emerges from our databases as a serious concern
in 2008 when it was seventh in our yearly top-ten list but this is the only time it
appeared. Its impact domestically is likely to have been extensive with 1300
people killed and an estimated 35,000 displaced. Internationally, concern
was evident through an extensive mediation process led by the African Union
but the Security Council remained rather silent and there has not been a reso-
lution that was explicitly focused on Kenya between 2007 and 2012.
Some criticism and doubt was voiced when the Prosecutor started his
investigation proprio motu. However, part of the reason why Kenya does not
appear on our nal list, is based on our coding over 10 years period:
countries with a short and intensive period of violence are not likely to end
in the top twenty list. Nevertheless the decision of the Prosecutor to start
32
international criminal law review 15 (2015) 1-39
<UN>
,
S/RES/1970 (2011).; General Assembly Suspends Libya from Human Rights Council.
www.un.org/News/Press/docs/2011/ga11050.doc.htm, 25 April 2014. In addition an arms
embargo, travel ban and freezing of assets was also set up in S/RES/1970 (2011).
A.J. Bellamy and P.D. Williams, ‘The New Politics of Protection? Côte d’Ivoire, Libya and
the responsibility to protect’, 110 African Afairs (2011), pp. 839–841; S/RES/1973 (2011).
S/RES/1973 (2011); In S/RES/2009 (2011) it was thereafter also decided to establish a
United Nations Support Mission in Libya () and extended the mandate in resolu-
tions S/RES/2022 (2011), S/RES/2040 (2012) and S/RES/2095 (2013). It has remained
actively seized of the manner ever since: S/RES/2009 (2011); S/RES/2016 (2011); S/
RES/2017 (2011). S/RES/2022 (2011); S/RES/2040 (2012); S/RES/2095 (2013).
S/RES/2040 (2012). This concern was reiterated in S/RES/2095 (2013).
investigations into Kenya is one of the most criticized and from our data it
becomes clear why.
4.3.4 Libya
Libya is not a party to the but the situation in Libya was referred to the
by the Security Council in February 2011. Even though the country was given
the most severe ranking on the Political Terror Scale in 2011 it does not rank
among the ten situations which are most grave in 2011 when all the data are
taken into account. The impact internationally was nevertheless very high.
Libya was expelled from the Human Rights Council and the Security Council
referred the situation to the while acting under Chapter VII. The Gulf
Cooperation Council furthermore called upon the Security Council to “take all
necessary measures” to protect the population in Libya and the League of Arab
States requested the Security Council put in place a no y zone and safe
areas. In resolution 1973 the Security Council subsequently armed that the
crisis constituted a threat to peace and security and acting under Chapter VII,
demanded a cease re and authorized “all necessary measures … to protect
civilians and civilian populated areas under threat of attack … while excluding
a foreign occupation force of any form on any part of Libyan territory”. The
situation in Libya is obviously of great concern to the international commu-
nity. Also with regards to the nature of the crimes involved, the noted
its “deep concern about reports of sexual violence during the conict in Libya
against women, men and children … and the recruitment and use of children
in situations of armed conict”. The fact that the referred the case to
the brings an interesting dilemma to the fore as Libya according to our
data would not even rank amongst the ten gravest situations in its worst years
(2010 and 2011) - but compared to some other countries was clearly more of
an international concern as demonstrated by attention dedicated to Libya by
the .
33
international criminal law review 15 (2015) 1-39
<UN>
Other resolutions that qualied the conict a threat to international peace and security
include S/RES/2056 (2012); S/RES/2071 (2012); S/RES/2100 (2013).
S/RES/2056 (2012); S/RES/2071 (2012); S/RES/2085 (2012); S/RES/2100 (2013).
S/RES/2085 (2012); later transformed into the United Nations Multidimensional Integra-
ted Stabilization Mission in Mali in () S/RES/2100 (2013).
S/PRST/2010/9.; SC/9940 at www.un.org/News/Press/docs/2010/sc9940.doc.htm, 23
March 2014.
SC/10001 www.un.org/News/Press/docs//2010/sc10001.doc.htm, 23 March 2014; G. Palmer,
A. Uribe, J.C. Itzhar, S.O. Sanberk, Report of the Secretary-General’s Panel of Inquiry on
the 31 May 2010 Flotilla Incident (2011), www.un.org/News/dh/infocus/middle_east/
Gaza_Flotilla_Panel_Report.pdf, 23 March 2014. General Assembly (2010) Report of the
international fact-nding mission to investigate violations of international law, including
international humanitarian and human rights law, resulting from the Israeli attacks on
the otilla of ships carrying humanitarian Assistance. //15/21. Israel and Turkey
4.3.5 Mali and Comoros
The self-referral from Mali is too recent to assess on the basis of our data but it
did not appear to have been among the gravest situations in the last ten years.
There has been nevertheless signicant international concern for the crisis in
Mali. According to Security Council Resolution 2085 the impact of the conict
in Mali for the international community has been alarming and it determined
the conict constituted a threat to international peace and security. In its reso-
lution it emphasized
that the situation and entrenchment of terrorist groups and criminal net-
works in the north of Mali continue to pose a serious and urgent threat to
the population throughout Mali, and to the stability in the Sahel region,
the wider African region and the international community as a whole.
The Security Council also explicitly condemned the sexual violence against
women and the use of child soldiers and stressed that some of the acts may
amount to crimes under the Rome Statute. The Security Council even wel-
comed forceful action by French troops to stabilize the situation and autho-
rised the deployment of an African-led International Support Mission in Mali
().
On 14 May 2013 Comoros referred a situation to the . It relates to the
Israeli raid on 31 May 2010 on the Humanitarian Aid Flotilla which was bound
for the Gaza strip. The attack on the otilla incident including the attack on the
Mavi Marmara of Comoros, was condemned by the Security Council during its
6325 and 6326 session. In addition, a panel of inquiry was welcomed by
the Security Council which released their report in September 2011. If the
34
international criminal law review 15 (2015) 1-39
<UN>
,
also investigated the manner. The former concluding it acting lawfully the latter reaching
the opposite conclusion www.turkel-committee.com/les/wordocs/7896summary-eng.
PDF, 23 March 2014 Press release from Turkey Ministry of Foreign Afairs No 29 23 January
2011 www.mfa.gov.tr/no_-29_-23-january-2011_-press-statement-by-the-national-inquiry
-and-investigation-commission-instituted-upon-israel_s-attack-on-the-international-
humanitarian-aid-convoy.en.mfa, 25 March 2014.
Heller thinks it is very unlikely considering the limited scope and victims that the
Prosecutor will initiate an investigation. K.J. Heller, ‘Could the Investigate Israel’s
Attack on the Mavi Marmara?’, Opinio Juris (2013), available at opiniojuris.org/2013/05/14/
could-the-ICCinvestigate-the-mavi-marmara-incident/.
, You’ll learn not to cry - child combatants in Colombia (2003).
On Georgia: //1393 (2002); //1427 (2002); //1462 (2003); //1494 (2003);
//1524 (2004); //1554 (2004); //1582 (2005); //1615 (2005); //1666
Prosecutor decides to investigate the situation in Comoros, this will also likely
raise concerns considering its limited number of victims, and the marginal
scope of the violence.
4.3.6 Preliminary Investigations
The has started preliminary investigations in seven more situations. Next
to Afghanistan which has already been discussed above these are: Colombia,
Georgia, Guinea, Honduras, Korea and Nigeria. These countries are all state
parties. Colombia is the only country which gures in the top twenty (rank
sixteen). Looking at the list of gravest situations amongst state parties to the
, Colombia and Guinea would be the only states within the top ten occupy-
ing the two last places within this ranking.
Colombia can be qualied as a conict-ridden country for over 50 years
now in which government forces and rebel forces, such as most prominently
the , ght each other. The conict was the most intense in the period
2002–2005. Child soldiers are used in the Colombian conict by guerrilla and
paramilitary forces. There are no Security Council resolutions explicitly
dealing with Colombia between 2002 and 2013. The started preliminary
investigations in June 2004 after it received over a hundred communications
related to crimes committed in Columbia but as the Colombian authorities are
conducting their own investigations the has not initiated investigations.
Colombian eforts are closely monitored by the and as the jurisdiction of
the is complementary to domestic prosecutions there seems no need to
issue arrest warrants at this point. Of the other countries which are under pre-
liminary investigation only Georgia and Guinea were of some concern to the
Security Council. Georgia, Honduras and South Korea have not appeared
once in our yearly top ten lists - Guinea has appeared once (ranked fth in
35
international criminal law review 15 (2015) 1-39
<UN>
(2006); //1716 (2006); //1752 (2007); //1781 (2007); //1808 (2008);
//1866 (2009) and on Guinea: //2009/27 explicitly condemning the sexual
violence; //2010/3.
See for instance DeGuzman, supra note 9, p. 26.
See for an updated list: www.icc-cpi.int/en_menus/asp/states%20parties/Pages/the%20
states%20parties%20to%20the%20rome%20statute.aspx, 23 May 2014.
2009), while Nigeria appeared twice in our top ten list (seventh in 2008 and
ninth in 2011). One might nevertheless wonder if the should continue
investigating these situations as they seem to lack relative gravity compared to
many other far more serious situations. It consequently does not surprise that
the decision to start preliminary investigations are in some cases harshly criti-
cized. On the other hand we have to remember that these are just prelimi-
nary investigations and thus these investigations are at the stage at which the
gravity assessment still needs to be conducted.
Conclusion
In this contribution we tried to empirically evaluate the ’s performance in
relation to its situation selection policy. The discretion of the Prosecutor to
select situations to be investigated is at the same time one of the most cher-
ished and most criticized features of the Court. The critique is often dogmatic
and therefore we presented an initial empirically based assessment of the
Prosecutor’s situation selection practice. The does not have a universal and
unlimited jurisdiction. It can only prosecute crimes which fall under its juris-
diction and which have been committed on the territory or by nationals of a
state party, unless the refers a situation to the . Although more than
60 percent of the countries of the international community are party to the
Statute (122 out of 193 countries) this still leaves 40 percent of the countries
which have not ratied the Statute amongst which some of the worst human
rights violators. Of the eight countries qualied by us as representing the
gravest situations only three ratied the Statute. The is conducting investi-
gations into two of them ( and Côte d’Ivoire) and preliminary investiga-
tions in one (Afghanistan). For ve situations which can be considered to be
amongst the gravest the does not have jurisdiction unless the situation
would be referred to it by the . The used this right in order to refer
the situations of Darfur and Libya to the . This would have been warranted
in the case of Iraq which is within our top three of grave situations during
the last ten years. As long as the does not act it is out of the reach of the
. The fact that many countries which are in our top eight have not ratied
36
international criminal law review 15 (2015) 1-39
<UN>
,
the Statute is the main reason that the has not started investigations: it
simply lacks jurisdiction and the nor the Prosecutor can be blamed for this.
Nevertheless it can and should be considered a failure of the international
criminal justice system that some of the gravest situations within the world and
especially the crimes committed in Iraq are not investigated by the . It is
also notable that the human rights violations committed within Nepal,
Myanmar and Pakistan are out of reach of the . In these situations the
has not even qualied these situations as constituting a threat to international
peace and security. Here too the lack of jurisdiction shows a shortcoming in the
international criminal justice system, showcasing its selective nature.
If we take into consideration only the top ten list of the state parties to the
Statute, we see that the is conducting investigations in four out of ten
countries (, Côte d’Ivoire, Uganda and ) and preliminary investigations
in three more (Afghanistan, Colombia and Guinea). It is not conducting investi-
gation in Burundi, Liberia and Chad. In relation to Burundi and Liberia it has to
be mentioned though that the peak of violence in both countries occurred
before the Statute was ratied and thus the does not have jurisdiction in
relation to the most violent periods within these countries. Merely in the case of
Chad it might be considered questionable that the has not even started pre-
liminary investigations as the Statute was ratied in 2007, the year in which the
violence was most extreme. In addition, it should be noted that the investigation
into Afghanistan has not reached beyond the preliminary phase as Afghanistan
ranks fourth on our overall list and can be qualied as a very grave situation.
On the one hand, it can be concluded that the has looked into and
investigated most situations which can be considered grave and for which it
has jurisdiction. The fact that it has not conducted investigations in a number
of other countries can be explained by the fact that it does not have jurisdic-
tion. On the other hand, given the emphasis on the relative gravity by the
and its pledge to focus on the gravest situations around the world, it might be
questioned why the scarce resources of the are dedicated to situations
such as Kenya, where a relatively limited period of violence occurred and why
it has not focused on countries such as Burundi, Liberia and Chad which are
amongst the top ten of gravest situations within state parties.
5 Discussion and Limitations of Our Study
In our study we tried to empirically assess the gravity of country specic situa-
tions by using secondary data from some of the most authoritative empirical
databases on human rights violations. This was complemented by a qualitative
37
international criminal law review 15 (2015) 1-39
<UN>
Kenya authorization decision, supra note 14.
Ibid., para. 61.
analysis of various reports, academic literature and resolutions.
Since we relied on existing databases on human rights violations to derive the
seriousness indexes, limitations of empirical studies on human rights viola-
tions must be kept in mind when interpreting our results. Gathering reliable
data on human rights violations is extremely dicult especially in war torn
countries, in which authorities sometimes try to prevent access to available
data. Since the databases we used are generally based on an assessment of a
human rights situation in a country and do not specically focus on interna-
tional crimes, our data gives an indication on the level of violence and terror
within a country but cannot provide details about the commission of interna-
tional crimes. This is related to another limitation of our study - the present
research focuses on the gravity of a situation in its broadest sense (on a country
level). The judges, however, seem to interpret the term “situation” more
narrowly. According to the Pre-Trial Chamber gravity should be assessed
against the backdrop of the likely set of cases or “potential cases” dened as (i)
groups of persons likely to be the focus of an investigation and (ii) crimes alleg-
edly committed during the incidents that are likely to be the focus of an inves-
tigation. Since there are no empirical databases readily available relating to
‘sets of potential cases’ or ‘incidents’, the presented analysis is conducted on
the country level. The country level is the closest approximation of “the con-
text in which crimes are committed” for which empirical data are available.
It might be argued that the fact that a country ended at one of the top places in
any of the databases used for our analysis can be indicative of “incidents”
involving international crimes were/are taking place in that country. The
assessment of gravity at the country level and at the smaller scale level of a set
of potential cases/incidents will arguably difer only in a limited number of
instances. For example, countries which have known a short but intense period
of mass violence are less likely to end up in our list. Libya is one such example
of a country with a relatively short period of extreme violence. Libya is already
being investigated by the after the referral of the . Also since our
analysis focuses on the time period 2002–2012 one country currently very
much discussed in relation to the - Syria - is also not included in our list.
The outbreak of violence has been only relatively recent and Syria made it to
our yearly list only in 2011 when it ranked second.
Another limitation is that we only discussed the ’s role in relation
to selecting situations rather than selecting cases (individuals and specic
crimes). In some instances the can indeed be criticized for selecting
38
international criminal law review 15 (2015) 1-39
<UN>
,
certain cases within a particular situation. In relation to the the investiga-
tion in the rst nalized case (Lubanga) was limited to child soldiering whereas
sexual violence was committed on a widespread scale. A second example is the
that the indictments related to the situation in Uganda are limited to the
while the governments too has committed crimes. A third example is the case
of . According to our data the entered the yearly top ten list in 2006
and was in the top ten during four years (2006, 2007, 2010–2011) but the focus of
the only case within this situation (against Bemba) is on crimes committed in
the period 2002–2003 and thus prior to the more extreme episodes of violence
in 2006 and 2007. In the years 2002–2003 the country does not appear on our
top ten list. A fourth example is related to Sudan - our data take the entire coun-
try into account and the data refer to all conicts which raged within Sudan
(the Darfur region as well as North-South conict), while the is only focus-
ing on the crimes committed in the Darfur region as the only referred
this situation to the . We deliberately focused our article on the selection of
situations and not cases but do explicitly note that in some instances there
might be a mismatch between our conclusion that the selection of a situation
is fully justied whereas the selection of a case within a situation might not be.
In addition, assessing “the international concern about a situation” by ana-
lysing the resolutions of the may seem imperfect due to the fact that
only a small number of countries are represented therein. On the other hand,
the is the only organ that can determine a situation to be a threat to
international peace and security and the drafters of the Statute gave it a
special role in the system.
Despite these limitations, we do believe that our results provide an initial
empirical basis for further discussions on situational gravity and the selec-
tion policies.
Based on our results we cannot but conclude that the seems to have
picked the gravest situations for which it has jurisdiction. The cannot be
blamed for the fact that it has not selected some of the most extreme situa-
tions (especially the situation in Iraq) for the simple reason that it lacked juris-
diction. We thus can only conclude that the criticism that the Court has not
selected the most serious situations seems often unfair and the currently dom-
inant criticism that the Court is unfairly biased and targeting only African
countries seems to be exaggerated.
We are not arguing, however, that the or the is completely unaf-
fected by the political environment in which they operate. Firstly, the is
dependent on referrals to gain jurisdiction over any serious situations
where the state is not party to the Rome Statute. The national interest of espe-
cially the permanent ve is the primary determinant of whether a situation
39
international criminal law review 15 (2015) 1-39
<UN>
will be referred to the , and consequently consistency in its choices has
been lacking. This inconsistency inevitably results in selectivity regarding
the situations that are being investigated by the as it lacks jurisdiction over
some of the gravest situations. Secondly, the is dependent on the coopera-
tion of other states to enforce its decisions and pragmatism to ensure coopera-
tion may at times be required. Considering as well the political impact that
its proceedings are likely to have, the intermingling of law and politics in this
respect seems to be inevitable.
However, while our results seem to indicate that the has not always
referred the most serious situations, political considerations do not seem to
have prevented the Prosecutor from focusing on the most serious situations
over which she/he has jurisdiction. The fact that there are many African coun-
tries amongst the situations investigated by the Court can be explained by the
combination of two factors. First of all twelve of the countries in our top twenty
list are located on the African continent and thus Africa indeed is one of the
major trouble spots within the world next to Asia and the Middle East which
has nine countries amongst the top twenty. Secondly - many African countries
including countries which can be qualied as grave have ratied the Statute,
unlike for instance, many Asian countries which can be qualied as grave.
Eight of the twelve African countries ranked in the top twenty have ratied the
Statute compared to just one of the nine Asian countries within the top twenty.
Many of the countries representing the worst situations in Asia (such as Iraq,
Nepal, Myanmar and Pakistan) have not ratied the Rome Statute and are thus
out of reach of the . This becomes even clearer when looking at table3 in
which we enlisted the gravest situations amongst state parties. In this list eight
out of the ten enlisted countries are African countries. Consequently, Africa
seems to be “targeted” for the simple reason that many African countries in
which international crimes are likely to have been committed are party to the
Statute unlike many countries in other regions of the world.
Forsythe, supra note 81, p. 853.
Micheal J. Struett, ‘Why the International Criminal Court Must Pretend to Ignore Politics’,
26 Ethics & International Afairs (2012) 83–92 at p. 84 and 89.
Sarah M.H. Nouwen and Wouter G. Werner, ‘Doing Justice to the Political: The International
Criminal Court in Uganda and Sudan’, 22 The European Journal of International Law (2011)
941–965; Struett, supra note 131, p. 83.
The Human Security Report 2005, supra note 37, p. 4 concluded: “At the turn of the 21 century
more people were being killed in wars in this region than in the rest of the world combined.”
34 African countries have ratied the Statute which is more than half of all African coun-
tries whereas only 18 countries within the Middle East and Asia have ratied the Statute
which is less than one third of the countries.
