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Elinor Fry, The Contours of International Prosecutions: As Defined by Facts, Charges, and Jurisdiction (Eleven International Publishing, 2016)

* By Dr. Elinor Fry

Dr. Elinor Fry is an Assistant Professor at the VU University Amsterdam Faculty of Law, where she is also the Deputy Director of the Center for International Criminal Justice. She holds an LL.M in International Human Rights Law and Criminal Justice (Utrecht University, summa cum laude), an LL.M in Information Law (University of Amsterdam), and an LL.B (University of Amsterdam). Before joining the VU, Fry worked for Reprieve on the European Commission project ‘Engaging Europe in the US Death Penalty Fight,’ and prior to that, for the defense team assisting Radovan Karadžić at the International Criminal Tribunal for the former Yugoslavia. During her PhD, Fry was a Senior Research Associate at the Public International Law & Policy Group, and held visiting positions at Tulane Law School’s Eason Weinmann Center for International and Comparative Law, the Extraordinary Chambers in the Courts of Cambodia, and the International Criminal Court.

 About the book:

The Contours of International Prosecutions: As Defined by Facts, Charges, and Jurisdiction explores the jurisdictional and factual boundaries of international prosecutions of core international crimes, i.e. war crimes, crimes against humanity, and genocide. By nature, such crimes have indistinct factual parameters. They generally occur on a massive scale, spread out over a large geographical area and a long time span, involving many perpetrators at various distances from the crime scene(s). These characteristics make international crimes difficult to demarcate from start (when determining the jurisdictional scope for the investigation in its earliest stage) to finish (when pronouncing the final judgment on the charges as delineated in the indictment). Accurate jurisdictional and factual demarcation of international crimes prosecutions is important, though, for many reasons and from various perspectives: victims have an interest in knowing whether the particular harm they suffered is being dealt with in the criminal case addressing the events giving rise to international criminal charges; an accused must be notified of those charges and the exact events he or she personally stands accused of; moreover, if a particular international criminal court or tribunal does not have jurisdiction over (part of) the events, which domestic or international institution will deal with what happened on the ground, or in other words, how are impunity gaps addressed?

Exploring the outer limits of international criminal prosecutions entails researching those legal aspects that influence demarcation: jurisdiction, charges, and identifying material facts by adequately distinguishing them from background information and evidence for the purpose of the indictment. The arrival at these three aspects is a logical consequence of practical fact-finding issues prevalent in international criminal justice, since those impediments are likely transposed and carried along post-investigation, namely to the charging phase of a criminal prosecution. If an investigation suffers from difficulties of establishing exactly who did what to whom when where and why, framing the charges with sufficient specificity is also likely to pose challenges. This creates a problem of a legal nature potentially detrimental to the rights of the accused. The principle of the specificity of charges ensures the right of the defense to be informed promptly and in detail of the nature, cause, and content of the charge as well as the ability to mount his or her defense. However, in international criminal proceedings, prosecutors are faced with considerable challenges of case demarcation caused by international crimes’ largely vague factual parameters, and consequently, charges indeed often suffer from a lack of specificity. Moreover, drafting charges to the required degree of detail entails identifying amongst the large amounts of complex facts the material ones, i.e. crucial or ultimate facts, and distinguishing them from non-crucial information and evidence. How are the factual parameters in an international crime case set in the face of all these challenges?

The fact that core international crimes have blurry boundaries due to the complexity and scale of the events that constitute them not only creates a demarcation problem on the micro level in light of charging and evidentiary practices. It also begs the question on the macro level of what the jurisdictional boundaries are for a permanent yet complementary court like the International Criminal Court (ICC). There are two sides to the matter of jurisdiction as demarcation tool in respect of this particular court: (i) the extent of the institutional influence of the ICC in case of a conflict of jurisdiction, and (ii), situational demarcation in relation to the triggering of the ICC’s jurisdiction. Regarding the first side to this coin, the question arises whether the risk that national proceedings might fall short in due process terms is a ground for the ICC to exercise jurisdiction over a case, thereby affecting the scope of an international criminal prosecution. With respect to the other side, noting that the ICC makes a strict distinction between situations on the one hand, at which point crimes are under investigation without having targeted individuals for prosecution yet, and on the other hand, cases against specific suspects, the question emerges: are similar demarcation problems discernible at the situation stage of investigations at the ICC in relation to jurisdictional matters?

Following the primary research question that explores the outer limits of international criminal prosecutions, these sub-questions on the micro and macro level are addressed in order to gauge how the contours of international criminal prosecutions materialize. The first part of this book, titled The Nature of the Crime, deals with this point of departure in Chapter 2 by exploring the sui generis nature of international crimes and the goals usually associated with international criminal justice. It examines how international crimes’ typical features, that set them apart from ordinary crimes, affect evidence law and practice.

The second part of this book, titled Factual Demarcation at Case Level, discusses demarcation at the micro level of individual cases. Chapter 3 explores the factual scope of an international criminal prosecution by seeking to ascertain the following: how specific should the charges in an international crimes case be, which circumstances play a role in answering this question, and what influences (lack of) specificity? The focus is therefore on case demarcation in light of an investigation or a case against an identified suspect or accused, and centers on the indictment phase of criminal proceedings. The Chapter searches for pleading principles as developed at the international criminal courts and tribunals, and researches the difference between material facts, subsidiary facts, and evidence. This Chapter also contains a review of all historical post-WWII indictments, both the international ones and the military ones. Chapter 4 continues researching case demarcation at the micro level by taking a closer look at Regulation 55 of the ICC’s Regulations of the Court. Pursuant to this provision, the Chamber may modify the legal characterization of facts in its final judgment as long as the new legal label does not exceed the facts and circumstances described in the charges. Building upon the pleading principles as identified in the foregoing chapter, Chapter 4 addresses the question which changes are permissible. It not only scrutinizes the ICC’s relevant case law to date, but also explores additional feasible types of recharacterization, i.e. with respect to changes regarding the contextual elements, the underlying (sub)categories of crimes or the form of participation. It then assesses for each type of alteration of a legal characterization of facts whether it (hypothetically) exceeds the facts and circumstances described in the charges of a case.

Continuing the demarcation theme, the third part of this book, titled Jurisdictional Reach of the International Criminal Court, consists of chapters dealing with demarcation at the macro level, addressing jurisdictional delimitation of the ICC. Chapter 5 deals with admissibility in light of the due process thesis – the idea that, through the principle of complementarity, the ICC positively influences domestic due process protections It scrutinizes critiques of the due process thesis by assessing whether there is a legal basis for the Court’s influence through an analysis of the admissibility grounds of Article 17 and Article 20(3) of the ICC Statute. Chapter 6 addresses the other side of the coin and makes demarcation at the macro level more concrete by researching situational demarcation in light of the ICC triggering and jurisdictional scheme. The Chapter explores the outer limits of the ICC’s factual reach by examining whether the jurisdictional scheme of the ICC Statute, which in fact regulates the first step of demarcation, at times leads to inherently unrealistic conditions or demarcation difficulties. It uses two case studies pertaining to the Middle East and North Africa region to do so: (1) the ICC’s problematic jurisdiction over foreign fighters joining the ranks of the Islamic State; and (2) Palestine’s accession to the ICC Statute.

What became apparent in this demarcation study is that the problems regarding the indistinct parameters of international crime prosecutions – caused by the challenges mentioned in the Introduction and Chapter 2: fact-finding impediments, the complexity of facts, the quantity of evidence, the magnitude of the crime, and the pursuance of idealistic goals – attach to one particular aspect of the prosecutorial effort most frequently, especially where the factual boundaries on the micro level are being examined: unearthing the connection between the accused and the crime(s). This connection is often the subject of legal dispute and scholarly debate in the international criminal justice field, and rightly so. Especially from a substantive law point of view, it has been observed many times before that there is an inherent ‘linkage’ challenge in terms of modes of liability in international crime cases. Also, the many studies into fact-finding impediments have shown the practical difficulties of establishing the position of the accused vis-à-vis the crime(s), and finding reliable linkage evidence to that end. However, the demarcation approach taken in this research sheds new light on the linkage dilemma. As such, this book does not illuminate the modes of participation debate or the practical fact-finding concerns, but centers on that which lies in between and is often overlooked: the legal ramifications of how facts and evidence are used and the jurisdictional schemes that influence the overall parameters of international criminal prosecutions.

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