Conflict, Accountability and Justice (New Voices)

This panel was convened at 3:00 p.m., on Thursday, March 31, 2016, by its moderator, Beth Van Schaack of Stanford Law School, who introduced the panelists: Hassan Ahmad of the University of California, Berkeley Boalt School of Law; Rebecca Hamilton of New York University School of Law; Steven Koh of the U.S. Department of Justice; and Shiri Krebs of Stanford Law School. (1) INTRODUCTORY REMARKS BY BETH VAN SCHAACK ([double dagger]) This New Voices panel features rising academics all studying the global system of international justice and the framing and inputs necessary to enable this system to function fairly and effectively. Hassan Ahmad presents a novel and provocative proposal that would unmoor the International Criminal Court's Prosecutor and Pre-Trial Chamber from the Rome Statute's jurisdictional limitations when gravity is being adjudicated at the preliminary examination or investigative stages. His approach would enhance accountability in situations involving transnational violence implicating the territory and nationals of both ICC states parties and non-party states. Rebecca Hamilton presents her proposal for better prosecuting what she describes as State-Enabled Crimes in order to overcome the current bifurcated approach that pursues individual criminal responsibility and state responsibility in acoustic isolation. She argues that melding these two approaches in a single proceeding will be fairer to defendants, be more satisfying for victims, offer a more accurate portrait of how violence unfolded, and better effectuate the goals of our system of international justice. Finally, Shiri Krebs explores important epistemological questions around international fact-finding efforts and presents counterintuitive but crucial observations from recent empirical research aimed at understanding how people receive, and process, information about the commission of abuses by their compatriots. Her research calls into question many core assumptions undergirding the creation and operation of modern commissions of inquiry. CONTEXT AT THE INTERNATIONAL CRIMINAL COURT By Hassan Ahmad ([double dagger]) The International Criminal Court (ICC or the Court) is bound by the Rome Statute's (the Statute) (1) delineation of temporal, territorial, subject matter, and nationality jurisdiction. This paper advocates for the Office of the Prosecutor (OTP) and Pre-Trial Chamber (when authorizing a proprio motu investigation) to aggregate information from both inside and outside the Court's temporal and territorial jurisdiction at the preliminary examination and investigation stages to reach the gravity threshold in order to prosecute high-ranking officials for crimes that otherwise satisfy the jurisdictional limitations within the Statute. This contextual approach should be taken when two factors exist: (1) the information relates to attacks in the midst of the same conflict, at least some of which occur within the Court's temporal or territorial jurisdiction; and (2) considering acts of violence that fall squarely within the Court's temporal and territorial jurisdiction would fail to meet the gravity threshold on their own. Increasingly, conflicts involving non-state actors are permeating across borders and encompassing attacks committed on the territories of both state and non-state parties. For instance, the Islamic State of Iraq and Syria (ISIS) has launched attacks in Iraq and Syria (2) (non-state parties) as well as in France (3) and Belgium (4) (state parties). In the face of pressure to assert jurisdiction, the ICC prosecutor issued a statement on April 8, 2015 concluding that since the majority of ISIS's attacks took place on non-state party territories and its leadership consists of non-state party nationals, the organization falls outside the Court's territorial and nationality jurisdiction. (5) Similarly, in its application to the Pre-Trial Chamber to request the prosecutor to reconsider her decision to not investigate potential ICC crimes committed on ships registered in state parties and part of a humanitarian flotilla heading for Gaza, the Union of Comoros argued that attacks in the Gazan territory in 2008-2009 during Operation Cast Lead must be considered in conjunction with the attack on the flotilla when considering the gravity threshold. …

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