ICC submission ‘dead in the water’

THERE is an overwhelming likelihood that the National Society for Human Rights’ (NSHR) submission to the International criminal Court to hold former President Sam Nujoma accountable for missing people “will go nowhere”.

Kevin Jon Heller, a law lecturer at the University of Auckland in New Zealand, claims that the fact that the ICC’s Prosecutor is weighing the merits of NSHR’s submission “quite literally means nothing”. His areas of expertise include international criminal law, domestic criminal law and evidence.Heller said Article 15 of the Rome Statute requires the Prosecutor of the ICC to analyse the seriousness of any communication he receives concerning a crime within the jurisdiction of the Court, “no matter how frivolous that communication may be”.”To date, for example, the Prosecutor has received 1 732 communications from 103 countries, 80 per cent of which were found to be manifestly outside jurisdiction after initial review.Of the remaining 20 per cent – approximately 340 communications – only 10 led to intensive analysis and only three proceeded to investigation (the Prosecutor is still analysing five),” Heller wrote in an opinion piece on the NSHR submission.He said there was thus an “overwhelming likelihood that NSHR’s submission will go nowhere”.Heller also claimed that there was no mention of a “continuing-violation doctrine” in the Rome Statute or in any decision of the ICC.”To be sure, the continuing-violation doctrine does exist in international law,” he said.”The fact that the doctrine exists, however, does not mean that the ICC will use it.”Indeed, I would be shocked if it does.A significant number of states would not have ratified the Rome Statute if it gave the Court retroactive temporal jurisdiction (crimes committed before July 1 2002), understandably – if regrettably – not wanting to expose their past behaviour to judicial scrutiny.”He said a continuing-violation doctrine would effectively allow the ICC to prosecute any pre-2002 crime that a state failed to investigate after 2002.”Such a dramatic expansion of the court’s temporal jurisdiction would not only undermine the ICC’s ability to attract new members, it would almost certainly lead many current members to withdraw from the Court – a catastrophic result,” Heller said.He said it was “easy to feel tremendous sympathy for those who suffered at the hands of Swapo’s murderous regime”.”I wish the ICC could prosecute Nujoma and the others.Unfortunately, that is simply not the case,” he said.He said creating an impression that the NSHR stood a chance of dragging Nujoma to the ICC was “a grave disservice” to Swapo’s victims and their families.His areas of expertise include international criminal law, domestic criminal law and evidence.Heller said Article 15 of the Rome Statute requires the Prosecutor of the ICC to analyse the seriousness of any communication he receives concerning a crime within the jurisdiction of the Court, “no matter how frivolous that communication may be”.”To date, for example, the Prosecutor has received 1 732 communications from 103 countries, 80 per cent of which were found to be manifestly outside jurisdiction after initial review.Of the remaining 20 per cent – approximately 340 communications – only 10 led to intensive analysis and only three proceeded to investigation (the Prosecutor is still analysing five),” Heller wrote in an opinion piece on the NSHR submission.He said there was thus an “overwhelming likelihood that NSHR’s submission will go nowhere”.Heller also claimed that there was no mention of a “continuing-violation doctrine” in the Rome Statute or in any decision of the ICC.”To be sure, the continuing-violation doctrine does exist in international law,” he said.”The fact that the doctrine exists, however, does not mean that the ICC will use it.”Indeed, I would be shocked if it does.A significant number of states would not have ratified the Rome Statute if it gave the Court retroactive temporal jurisdiction (crimes committed before July 1 2002), understandably – if regrettably – not wanting to expose their past behaviour to judicial scrutiny.”He said a continuing-violation doctrine would effectively allow the ICC to prosecute any pre-2002 crime that a state failed to investigate after 2002.”Such a dramatic expansion of the court’s temporal jurisdiction would not only undermine the ICC’s ability to attract new members, it would almost certainly lead many current members to withdraw from the Court – a catastrophic result,” Heller said.He said it was “easy to feel tremendous sympathy for those who suffered at the hands of Swapo’s murderous regime”.”I wish the ICC could prosecute Nujoma and the others.Unfortunately, that is simply not the case,” he said.He said creating an impression that the NSHR stood a chance of dragging Nujoma to the ICC was “a grave disservice” to Swapo’s victims and their families.