International Criminal Court: Recent Developments in Other ICC Investigations and Cases

Recent developments in the ICC’s Libyan investigation and cases have been examined.[1] There also have been interesting developments in four of the other situations under investigation by the ICC: the Democratic Republic of Congo (DRC or Congo), Uganda, Darfur (Sudan), and the Ivory Coast.

Mrs. Fatou Bensouda

Congo. The evidence and arguments in the ICC’s first case to go to trial are over, and the decision of the Trial Chamber is expected early in 2012.[2] The ICC’s Deputy Prosecutor, Mrs. Fatou Bensouda, recently reflected on the lessons of this case for the Office of the Prosecutor (OTP).[3]

  • Foremost was implementation of  the prosecution’s conceded obligation to disclose to the defense (a) incriminating evidence to be used by the prosecution; (b) evidence that is potentially exonerating or may affect the credibility of the prosecution’s evidence; and (c) evidence that is material to the preparation of the defense. Complications arose in this case because of the prosecution’s countervailing duty of confidentiality towards certain witnesses, and the Appeals Chamber decided that the Court had to respect such confidentiality agreements. Thereafter protective procedures were developed to provide such information to the defense despite such agreements.
  • Contrary to the practice of the ad hoc international criminal tribunals and U.S. courts, the ICC has held that the parties and counsel cannot meet with their witnesses in advance to discuss their anticipated testimony. Thus, what is referred to internationally as “witness proofing” is prohibited.
  • Some witnesses, especially former child soldiers, had been admitted into the Court’s witness protection program, and the Trial Chamber allowed them to testify with voice and face distortion and pseudonyms to protect their identity from the public while providing that information to the defense.[4]
  • Some other witnesses provided testimony via video link from the DRC without any technical problems.
  • The prosecution uses confidential intermediaries in the field, in the DRC in this case, to facilitate contact with potential witnesses and other sources of information. In this case, the defense alleged that some intermediaries were suggesting false testimony be given, and problems arose over the Trial Chamber’s order for disclosure of the identity of the intermediaries before protection had been provided to them.

The DRC’s presidential and parliamentary elections will be on November 28th, and reports of pre-election violence prompted the ICC’s OTP to issue a public statement that it was closely monitoring the situation and would investigate and prosecute any crimes within the Court’s jurisdiction that were committed.[5]

Joseph Kony
President Al Bashir

Uganda. The ICC has issued arrest warrants for Joseph Kony and three other top members of the Lord’s Resistance Army (LRA), but they all are at large.[6] In October President Obama ordered the deployment of 100 U.S. armed military advisors to central Africa to assist local forces in combating the LRA. The President did so pursuant to the Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act. If the U.S. forces assisted in the arrest of any of these top LRA leaders, they would be turned over to the ICC.[7]

Sudan (Darfur). The ICC has issued an arrest warrant for Sudanese President Omar Hassan Ahmed Al Bashir, who is the current head of state and who is still at large.[8] Recently Bashir was in Malawi and was not arrested even though Malawi as an ICC State Party had an obligation to do so. As a result, the ICC Pre-Trial Chamber requested Malawi to submit observations on its failure to arrest Bashir.[9]

Ivory Coast. In early October the ICC’s Pre-Trial Chamber authorized the Prosecutor to conduct an investigation of the situation in the Ivory Coast.[10] Later that same month the Prosecutor visited the country to meet with government officials, members of the Opposition, victims and the country’s Truth, Dialogue and Reconciliation Commission.[11]


[1] Post: International Criminal Court: Recent Developments in the ICC’s Libyan Investigation and Cases (Nov. 16, 2011).

[2] Post: International Criminal Court: ICC’s First Trial To End This Week (Aug. 24, 2011).

[3] Bensouda, Update on Trials and the Closing of the First Case (Oct. 5, 2011), www2.icc-cpi.int/nr/exeres/2386f5cb-b2a5-45dc-b66f-17e762f77b1f.htm.

[4] Post: International Criminal Court: Protection of Witnesses (Aug. 19, 2001).

[5] ICC, ICC Prosecutor: we are closely monitoring the situation in the Democratic Republic of the Congo (Nov. 11, 2011).

[6] Post: International Criminal Court’s Investigations and Prosecutions (April 28, 2011); ICC, Situations and Cases, www2.icc-cpi.int/Menus/ICC/Situations+and+Cases.

[7] Shanker & Gladstone, Armed U.S. Advisers to Help Fight African Renegade Group, N.Y. Times (Oct. 14, 2011); Wikisource, Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act of 2009, http://en.wikisource.org/wiki; U.S. White House, Statement by the President on the Signing of the Lord’s ResistanceArmy Disarmament and Northern Uganda Recovery Act of 2009 (May 24, 2010), http://www.whitehouse.gov/the-press-office/statement-president-signing-Lords-resistance-army-disarmament-and-northern-uganda-r.

[8]  Post: International Criminal Court’s Investigations and Prosecutions (April 28, 2011); Post: International Criminal Court: ICC Prosecutor Updates the U.N. Security Council on Sudan (Darfur) (June 17, 2011); International Criminal Justice: Libya, Sudan, Rwanda and Serbia Developments (July 4, 2011).

[9] ICC Press Release, Pre-Trial Chamber I requests observations from Malawi on the enforcement of warrants of arrest against Omar Al Bashir (Oct. 19, 2011).

[10] Post: International Criminal Court: Prosecutor Seeks To Open Investigation of Ivory Coast (May 23, 2011); Post: International Criminal Court: Investigation of Ivory Coast Situation Is Authorized (Oct. 3, 2011).

[11] ICC, Statement by ICC Prosecutor Luis Moreno-Ocampo on official visit to Cote d’Ivoire, October 15-16 (Oct. 14, 2011).

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dwkcommentaries

As a retired lawyer and adjunct law professor, Duane W. Krohnke has developed strong interests in U.S. and international law, politics and history. He also is a Christian and an active member of Minneapolis’ Westminster Presbyterian Church. His blog draws from these and other interests. He delights in the writing freedom of blogging that does not follow a preordained logical structure. The ex post facto logical organization of the posts and comments is set forth in the continually being revised “List of Posts and Comments–Topical” in the Pages section on the right side of the blog.

4 thoughts on “International Criminal Court: Recent Developments in Other ICC Investigations and Cases”

  1. Comment: U.S. Military Forces To Remain in Uganda

    The top U.S. military commander for Africa has said that the 100 U.S. troops in Uganda probably would remain there until Joseph Kony, the top leader of the Lord’s Resistance Army, was captured or killed. Kony is the subject of an arrest warrant from the International Criminal Court. (Whitlock & Jaffe, General: U.S. Troops’ Uganda mission likely to last until rebel leader is caught, Wash. Post (Nov. 19, 2011).)

  2. Comment: ICC Prosecutor Seeks Arrest Warrant for Sudanese Official

    On December 2nd the ICC Prosecutor asked the Court’s Pre-Trial Chamber for an arrest warrant for Abdelrahim Mohamed Hussein for crimes against humanity and war crimes committed in Darfur from August 2003 to March 2004. Hussein allegedly played a central role in coordinating killing, raping and looting entire villages. He then was the Sudanese Minister for the Interior and Special Representative of the President in Darfur; now he is its Defense Minister.

    (ICC Press Release: ICC Prosecutor Presents New Case in Darfur (Dec. 2, 2011); Assoc. Press, Prosecutor Seeks Sudan Defense Minister Arrest, N.Y. Times (Dec. 2, 2011).)

  3. Comment: Former Ivory Coast President in ICC Custody

    On November 29th Laurent Koudou Gbagbo, the former President of the Ivory Coast, was surrendered to the ICC by the government of that country, and the next day he was in ICC custody at The Hague. He was arrested under a previously sealed arrest warrant that charged him with being an indirect co-perpetrator for four counts of crimes against humanity (murder, rape, other forms of sexual violence and other inhuman acts) in the country between December 16, 2011 and April 12, 2001.

    (ICC Press release: New suspect in the ICC’s custody: Laurent Bbagbo arrived at the detention centre (Nov. 30, 2011).)

  4. Comment: U.S. Military Forces Hunt for Joseph Kony

    Since at least 2008 the U.S. has been assisting a close ally, Uganda, in various ways, including searching for Joseph Kony, a notorious rebel commander under indictment by the International Criminal Court. In 2010 as a result of U.S. political pressure for the U.S. to do more, Congress passed the Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act. Last year that statute was the legal basis for sending U.S. special forces to Africa to assist in searching for Kony.

    Now 100 “of America’s elite Special Operations troops, aided by night vision scopes and satellite imagery, are helping African forces find a wig-wearing, gibberish-speaking fugitive rebel commander named Joseph Kony who has been hiding out in the jungle for years with a band of child soldiers and a harem of dozens of child brides.”

    Gettleman, In Vast Jungle, U.S. Troops Aid in Search for Kony, N.Y. Times (April 30, 2012), http://www.nytimes.com/2012/04/30/world/africa/kony-tracked-by-us-forces-in-central-africa.html?ref=world; Whitlock, Joseph Kony hunt is proving difficult for U.S. troops, Wash. Post. (April 29, 2012), http://www.washingtonpost.com/world/national-security/joseph-kony-hunt-is-proving-difficult-for-us-troops/2012/04/29/gIQAasM6pT_story.html.

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