Tag: Democratic Republic of Congo

International Criminal Court: Other Recent Developments

We recently have reviewed the taking of office of five new judges of the International Criminal Court (ICC) and the Court’s first conviction in the case of Thomas Lubanga Diyalo from the Democratic Republic of the Congo. Now we look at some other recent ICC developments.

Central African Republic. The only case from the Central African Republic involves one defendant, Jean-Pierre Bemba Gombo, who is now on trial.

Darfur/Sudan. There are five cases involving seven defendants. Two are in ICC custody at The Hague and await trial. One had the charges dismissed. The other four, including Sudanese President Bashir, are at large.

Another of the at-large defendants is Abdel Raheem Muhammad, whose arrest warrant was just issued on March 1, 2012, for 41 counts of crimes against humanity and war crimes allegedly committed in the context of the situation in Darfur (Sudan). Mr. Hussein is currently Minister of National Defense of the Sudanese Government and former Minister of the Interior and former Sudanese President’s Special Representative in Darfur.

Democratic Republic of the Congo. There are four cases involving five defendants. One, Mr. Lubanga, was recently convicted. A case involving two other defendants is now on trial. The charges against another defendant were not confirmed by the Pre-Trial Chamber while the fifth defendant is at large.

After the conviction of Mr. Lubanga, the ICC Prosecutor said he plans to demand that DRC President Joseph Kabila hand over the defendant still at large. He is Bosco Ntaganda, who was promoted to DRC army general after being indicted with Lubanga by the ICC and who now faces new charges of mass rape and murder.

Ivory Coast (Côte d’Ivoire). There is only one case involving one defendant, Laurent Gbagbo (the former President of the country) for whom the hearing on the confirmation of charges is scheduled to start on 18 June 2012. He is in ICC custody at The Hague.

On February 22, 2012, the Pre-Trial Chamber decided to expand its authorization for the investigation in Côte d’Ivoire to include crimes within the jurisdiction of the Court allegedly committed between  September 19, 2002 and November 28, 2010. (The prior authorization only covered alleged crimes committed since November 28, 2010.)

The Chamber considered that the violent events in Côte d’Ivoire in this period (including the events since 28 November 2010) are to be treated as a single situation, in which an ongoing crisis involving a prolonged political dispute and power-struggle culminated in the events in relation to which the Chamber earlier authorized an investigation. Concentrating on the most significant of the samples of incidents, the Chamber concluded that there is reasonable basis to believe that, in the course of these events, acts of murder and rape that could amount to war crimes or crimes against humanity were committed.

In the country lawlessness and violence continues, and an U.N. agency recently determined that its security forces that have been accused of killings, arbitrary arrests and other human rights violations are acting alone and not under government orders.

Kenya. There are two Kenyan cases involving six defendants. On January 23, 2012, the Pre-Trial Chamber confirmed the charges against four of the defendants and committed them to trial while declining to confirm the charges against the other two.

The reaction to this decision in Kenya is reviewed elsewhere.

Libya. There is one case involving three defendants. One defendant, Muammar Mohammed Abu Minyar Gaddafi, is deceased, and his case has been terminated. The other two- Saif Al-Islam Gaddafi and Abdullah Al-Senussi–are charged with crimes against humanity (murder and persecution) allegedly committed across Libya from February 15, 2011 until at least 28 February 2011, through the State apparatus and Security Forces.

Al-Islam Gaddafi is in detention in Libya, which has been resisting ICC demands for his being surrendered to the Court. Al-Senussi recently was captured in Mauritania, and Libya is pressing that country to turn him over to Libyan authorities, rather than the ICC.  The legal issue at the heart of this dispute over where these two men will be tried is whether Libya has a functioning judicial system that can provide a due-process criminal proceeding.

Uganda. There is one case involving four defendant leaders of the Lord’s Resistance Army (LRA), including Joseph Kony. All four are at large.

The major recent development regarding the ICC’s case has happened outside the legal process. Earlier this month a 30-minute YouTube video “Kony 2012” portrayed  Mr. Kony’s involvement with child soldiers and called for his arrest and surrender to the ICC for trial. This video became a world-wide phenomenon (“it went viral”) and the subject of much controversy.

This increased attention to Kony has caused the Ugandan military to intensify its efforts to find Kony and other LRA leaders.

In the meantime, the U.S., although not a member of the ICC, has reiterated its commitment of military resources to locate the LRA leaders. The Department of State recently declared that the U.S. has a “comprehensive, multi-year strategy [that] seeks to help the Governments of Uganda, CAR, the DRC, and South Sudan as well as the African Union and United Nations to mitigate and end the threat posed to civilians and regional stability by the LRA. The strategy outlines four key objectives for U.S. support: (1) the increased protection of civilians, (2) the apprehension or removal of Joseph Kony and senior LRA commanders from the battlefield, (3) the promotion of defections and support of disarmament, demobilization, and reintegration of remaining LRA fighters, and (4) the provision of continued humanitarian relief to affected communities.”

Conclusion

As evident from the above, all of the ICC’s current investigations and cases come from Africa, which has produced tension between the Court and the continent’s leaders. Following the recent elections of an African (Fatou Bensouda) as the Court’s new Prosecutor and another African (Chile Eboe Osuji) as one of its new judges, nearly 36 NGOs from 19 African countries recently sent a joint letter to the foreign ministers of the African countries that are parties to the ICC’s Rome Statute urging them to seek to improve African relations with the ICC. The letter’s specific recommendations to this end included the following:

  • more meetings and “exchange of views” between officials of the African Union and the ICC;
  • establishment by the African Union of an ICC liaison office in Addis Ababa, Ethiopia;
  • fulfillment by states parties of their obligations under the ICC treaty to implement warrants and decisions of the court; and
  • improvement of national justice systems so that they might pursue persons accused of the core crimes that the ICC now prosecutes – genocide, crimes against humanity, and war crimes – domestically, as envisaged by the ICC Statute’s complementarity principle.

International Criminal Court’s First Conviction

Thomas Lubanga Dyilo

On March 14, 2012, the International Criminal Court (ICC) convicted its first defendant: Thomas Lubanga Dylio. [1]

The ICC’s three-judge Trial Chamber unanimously concluded, after a lengthy trial, that he was guilty beyond a reasonable doubt as a co-perpetrator of the war crimes of conscripting and enlisting children under the age of 15 and using them to participate in an internal armed conflict in 2002-2003 in the Democratic Republic of the Congo (DRC). At the time Lubanga was the President of a rebel group, the Commander-in-Chief of its military wing and its political leader.

At a hearing to be held on April 18th the Trial Chamber will consider the length of his sentence and the principles to be used in establishing reparations for the victims of these crimes. The ICC’s Prosecutor has said that his office will seek a sentence close to the maximum of 30 years under Article 77(1)(a) of the Court’s Rome Statute. It is anticipated that Lubanga will appeal his conviction and sentence to the ICC’s Appeals Chamber.

The Trial Chamber’s judgment also harshly criticized the Prosecutor for negligence in delegating investigations to unreliable intermediaries who had encouraged certain witnesses to give false testimony that had compelled the Court to exclude any reliance on their testimony.

The U.N.’s High Commissioner for Human Rights said this verdict “represented the coming of age of the [ICC] . . . and . . . [sent] a strong signal against impunity for such grave breaches of international law that will reverberate well beyond the D.R.C.”

The U.S. had similar words of commendation. The White House said the decision demonstrated that “the international community is united in its determination to end the repugnant practice of using child soldiers.” The U.S. Department of State noted that the conviction highlighted the “paramount international concern” over “the brutal practice of conscripting and using children to take a direct part in hostilities” and puts “perpetrators and would-be perpetrators of [such conduct] on notice that they cannot expect their crimes to go unpunished.”

[1] A previous post reviewed the trial of this case while another post discussed interesting issues of witness protection in the case.

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).

International Criminal Court: Investigation of Ivory Coast Situation Is Authorized

On October 3, 2011, the Pre-Trial Chamber of the International Criminal Court (ICC) authorized the Prosecutor to conduct an investigation of the situation in the Ivory Coast (Cote d’Ivorie) for possible crimes against humanity and war crimes within the Court’s jurisdiction since November 28, 2010.[1]

Ivory Coast has been in turmoil since a coup in 1999 and a flawed 2000 election in which Laurent Gbagbo was elected president for a five-year term. Gbagbo, however, failed to hold an election in 2005 and was still in office when an election was held in November 2010. He was defeated in that election by Alassane Outtara, but Gbagbo refused to turn over power to Ouattara. Thereafter there was armed conflict between supporters of the two men that is the focus of the now authorized ICC investigation. In that conflict approximately 3,000 people were killed, and 500,000 people fled into neighboring countries. In April 2011 Gbagbo was forcibly removed from office and arrested with the help of French and U.N. military forces (In May Ouattara was formally inaugurated as president.) This August, Gbagbo and his wife were charged with looting, armed robbery and embezzlement by the country’s prosecutor.[2]

The Ivory Coast situation is an excellent illustration of the checks and balances within the ICC. One of the ways an investigation can be started by the ICC Prosecutor is on his own initiative (proprio motu), but that can happen if and only if a three-judge Pre-Trial Chamber authorizes the investigation, which is what just happened with the Ivory Coast.[3]

Such authorization is not automatic and cannot be presumed.

The Pre-Trial Chamber’s decision to authorize the Ivory Coast investigation is an 86-page careful analysis of the many legal conditions that must be satisfied for such an authorization. It concludes with a statement that one of the three judges will be filing a separate and partially dissenting opinion.[4]

The first condition was ICC jurisdiction over the Ivory Coast. It is not a State Party to the Court’s Rome Statute, but in April 2003 it submitted a declaration to the Court that the country accepted ICC jurisdiction for crimes on its territory since September 19, 2002 and for an unspecified period of time thereafter. The validity of this declaration was confirmed in a December 2010 letter from President-elect Ouattara, who pledged full cooperation with the Court in particular for crimes after March 2004. In addition, in May 2011 President Ouattara sent a letter to the Court in which he said that he believed crimes within the Court’s jurisdiction had been committed since the elections of 2010 and requested the ICC’s assistance in prosecuting perpetrators of such crimes. Therefore, the Pre-Trial Chamber concluded that the Court had jurisdiction over the situation in the Ivory Coast.[5]

The Pre-Trial Chamber then considered the materials regarding possible crimes committed by the pro-Gbagbo forces and concluded that there was reason to believe that they had committed crimes against humanity by murder, rape, arbitrary arrest and detention, enforced disappearances and torture and other inhumane acts.[6] The pro-Gbagbo forces also had been shown possibly to have committed war crimes in an armed conflict not of an international character by murders, intentional attacks on civilian populations and U.N. personnel, rape and sexual violence.[7]

The Pre-Trial Chamber also considered whether pro-Ouattara forces had committed similar crimes and concluded that there was reason to believe that they had. Their possible crimes against humanity were murder, rape and imprisonment and deprivation of liberty. Their possible war crimes were murder, rape, pillage, torture and other cruel treatment.[8]

The Pre-Trial Chamber emphasized that the authorization included continuing crimes after the Prosecutor’s application to the Chamber on June 23, 2011.[9] The Prosecutor also was asked in one month to submit additional materials for possible crimes in the Ivory Coast from 2002 (when the ICC commenced operations) through 2010.[10]

Last month President Ouattara appointed 11 people to the country’s new Commission on Dialogue, Truth and Reconciliation. Although modeled after South Africa’s Truth and Reconciliation Commission, it is unclear if it will be issuing amnesties and pardons.[11]

This Commission’s goals might be seen as conflicting with the ICC’s investigation and possible prosecution of people for committing crimes against humanity and war crimes in the country, but immediately after the Pre-Trial Chamber’s authorization of the ICC investigation, its Prosecutor stated that the investigation “should be part of national and international efforts to prevent future crimes in [the country” and that the Commission “would be a central piece of such efforts. National authorities could define other activities to help the victims, ensure peaceful coexistence and prevent future violence. Promoting justice and reconciliation . . . must be our common endeavour.”[12]

This is the Court’s seventh investigation, all from Africa. Three of the others are by submissions from States Parties: Uganda, Democratic Republic of Congo and the Central African Republic. Two are from submissions from the U.N. Security Council: Darfur (Sudan) and Libya. The other, Kenya, was another Pre-Trial Chamber approval of an investigation initiated by the Prosecutor.[13]

[1] Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situtation in the Republic of Cote d’Ivorie, (ICC Pre-Trial Ch. Oct. 3, 2011); ICC, Press Release: ICC Pre-Trial Chamber III authorizes the Prosecutor to launch an investigation in Cote d’Ivorie (Oct. 3, 2011); Assoc. Press, Int’l Court IJs Ivory Coast Violence Probe, N.Y. Times (Oct. 3, 2011); Post: International Criminal Court: Prosecutor Seeks To Open Investigation of Ivory Coast (May 23, 2011).

[2] Id.; Nossiter, Sayare & Bukefsky, Leader’s Arrest in Ivory Coast Ends Standoff, N.Y. Times (April 11, 2011); BBC, Ivory Coast reconciliation commission launched, BBC News (Sept. 6, 2011).

[3] Post: International Criminal Court: Introduction (April 28, 2011); Post: International Criminal Court: Prosecutor Seeks To Open Investigation of Ivory Coast (May 23, 2011).

[4] Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situtation in the Republic of Cote d’Ivorie, (ICC Pre-Trial Ch. Oct. 3, 2011).

[5]  Id. ¶¶ 10-15.

[6]  Id. ¶¶ 51-91.

[7]   Id. ¶¶ 127-153.

[8]  Id. ¶¶ 95-116, 157-172.

[9]  Id. ¶¶ 3, 179.

[10]  Id. ¶ 213.

[11]  BBC, Ivory Coast reconciliation commission launched, BBC News (Sept. 6, 2011);BBC, Ivory Coast gets truth and reconciliation commission, BBC News (Sept. 28, 2001);Ivory Coast launches reconciliation panel,al Jazeera.net (Sept. 28, 2011).

[12] ICC, Press Release: ICC Prosecutor: This decision ensures justice for victims in Cote d’Ivoire. I will conduct effective, independent and impartial investigations, (Oct. 3, 2011).

[13]  Post: International Criminal Court: Investigations and Prosecutions (April 28, 2011).

International Criminal Court: ICC’s First Trial To End This Week

International Criminal Court

This Thursday and Friday (August 25th and 26th), the Trial Chamber of the International Criminal Court (ICC) will hear closing arguments in its first trial. Thereafter in due course the Chamber will issue its decision. The trial started in January 2009, and the evidence phase concluded in May 2011 after 220 days of hearing of testimony from 62 witnesses, including four experts called by the Trial Chamber itself. The Trail Chamber issued 307 oral decisions and 624 written decisions.[1]

The accused in this trial is Thomas Lubanga Dyilo. He is the alleged founder and leader of UPC (Union des patriots congolais). He is charged with war crimes consisting of enlisting and conscripting children under the age of 15 years and using them in hostilities in the Democratic Republic of the Congo (DRC).[2]

In another ICC development, Grenada on August 1st became the 115th State Party to the ICC’s Rome Statute.[3]

[1] ICC Press Release, Trial of Thomas Lubanga Dyilo: The presentation of evidence stage is closed (May 20, 2011); Reuters, ICC’s Landmark Debut Trial Concludes After Two Years, N.Y. Times (Aug. 24, 2011).

[2] See Post: International Criminal Court: Introduction (April 28, 2011); Post: International Criminal Court: Investigations and Prosecutions (April 28, 2011); Post: International Criminal Court: Protection of Witnesses (Aug. 19,2011).

[3]  ICC Press Release, ICC welcomes Grenada as a new State Party (Aug. 23, 2011).

International Criminal Court: Protection of Witnesses

The International Criminal Court’s Trial Chamber recently confronted two interesting issues regarding protection of witnesses in its proceedings:

What should the Court do with a witness’ request not to be returned to his home country because of alleged fear of persecution due to his testimony?

What should the Court do with that witness’ claim for asylum due to an alleged well founded fear of persecution in his home country due to his                                                          political opinions as expressed in his testimony?[1]

Thomas Lubanga Dyilo

These issues arose in the ICC prosecution of Thomas Lubanga Dyilo of the Democratic Republic of the Congo (DRC), who is charged with two war crimes. One is his allegedly enlisting and conscripting of children under the age of 15 years into a Congolese rebel group (Union des Patriotes Congolais (UPC)) and using them to participate actively in hostilities in the context of an international armed conflict. The other is doing the same thing in the context of an armed conflict not of an international character.[2]

The unnamed witness (Defense Witness 19) had been in detention in the DRC pending determination of criminal charges against him. Upon the application of defense counsel, the Court requested the DRC to transfer him to the Court to testify voluntarily at the trial. The DRC agreed to this request, pursuant to Article 93(7) of the Rome Statute that requires the individual to be returned to [the DRC] after testifying.

The witness was called to testify by defense counsel, who said the witness wished to testify in public without protective measures. At the start of his testimony, however, the witness expressed concerns about his safety and that of his family in the DRC, but he did not formally request protection from the Court at that time or during the course of his testimony.

The witness testified on a broad range of subjects, including his role in the rebel group, Lubanga’s position in the group, and the group’s conduct during the conflicts. The witness seriously challenged three named individuals in the DRC government.

After his testimony was finished and after the Court’s Registry had advised the Trial Chamber that the witness needed to be returned to the DRC as soon as possible, the witness filed a formal request for protection, i.e., a stay, and eventual cancellation, of his removal to the DRC and facilitation of his asylum application to the Kingdom of the Netherlands. The Trial Chamber ordered the stay of his removal while his application for protection was considered.

Witness’ Request for Cancellation of Removal to DRC

Under Article 68(1) of the Rome Statute, the “Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses.” To assist the Court in ruling on an application for such measures, it may request its Victims and Witness Unit (VWU), pursuant to Article 68(4), to provide advice.

That was done, and the VWU told the Trial Chamber that if returned to the DRC the witness “would not be exposed to any additional risk to his security or psychological or physical well-being as a result of his testimony;” that his testimony did not provide any new information to the DRC; that the DRC had provided assurances that the witness would receive adequate protection upon return; and the VWU would monitor his treatment after return.

The Chamber concluded that the VWU was the body within the ICC with the necessary qualified staff and expertise to evaluate the risks posed to a witness, that the Court had complied with its obligations under Article 68 of the Statute to consider the application for protection, that the request for cancellation of his removal to the DRC should be denied and that the witness should be returned to the DRC. However, the Court’s Registry was instructed to contact the DRC authorities to determine what, if any, additional security measures should be implemented upon return, and the VWU was instructed to monitor the witness’ well-being.

Witness’ Application for Asylum

The ICC is not a state and is not a party to the Convention Relating to the Status of Refugees and the Protocol Relating to the Status of Refugees.[3] Therefore, the Trial Chamber concluded it had no jurisdiction to address the merits of the witness’ asylum application.

Instead, it was exclusively for the Kingdom of the Netherlands to consider and make a determination on that application. However, the Trial Chamber instructed the ICC’s Registry to afford the witness reasonable access to his lawyers on the asylum application and to work out procedures for the witness’ asylum application to be determined by the Netherlands before his return to the DRC.

[1] Redacted Decision on the request of [Defense Witness 19] for special protective measurs relating to his asylum application, Prosecutor v. Lubanga Dyilo(ICC Trial Chamber Aug. 5, 2011), http://www2.icc-cpi.int/iccdocs/doc/doc1189724.pdf; Ramji-Nogales, International criminal law meets non-refoulement (July 8, 2011), http://intlawgrrls.blogspot.com/2011/07/international-criminal-law-meets-non.html.

[2]  ICC, Prosecutor v. Thomas Lubanga Dyilo, http://www2.icc-cpi.int/Menus/ICC/Situations+and+Cases/Situations.

[3] See Post: Refugee and Asylum Law: Modern Era (July 9, 2011).

International Criminal Justice: U.S. Reportedly Failed To Detain Rwandan Indictee of Spanish Court

In May 2011 Justus Majyambere, a major in the Rwandan Defense Forces, apparently visited the U.S. Military Staff College at Fort Leavenworth, Kansas as an official representative of his government. The purpose of the visit was to obtain ideas for starting a military college in Rwanda.[1]

That sounds like a positive development.

But Majyambere is under indictment by a Spanish court for alleged involvement in the killing of nine employees of a Spanish NGO in Rwanda and the Democratic Republic of the Congo. Therefore, he is under an Interpol “red notice,” a worldwide bulletin that is roughly equivalent to an arrest warrant. As a result, he reportedly was arrested upon his recent arrival in the U.S., but mysteriously was not detained and sent to Spain.[2]

If all of this is true, it is contrary to repeated statements by U.S. Ambassador-at-Large for War Crimes, Stephen Rapp, about U.S. supporting the arrest of fugitives from international criminal justice.[3] It is also contrary to the global goal of punishing and deterring violations of international humanitarian and human rights law.

[1] Rosen, U.S. Hosted Alleged Rwandan War Criminal for Military Visit, (June 20, 2011), http://www.theatlantic.com/international/archive/2011/06/us-hosted-alleged-rwandan-war-criminal-for-military-visit/240679/.

[2]  Id.

[3]  See Post: The International Criminal Court and the Obama Administration (May 13, 2011); Post: The International Criminal Court: Possible U.N. Security Council Referral of Syrian Human Rights Abuses to ICC (June 18, 2011).

The International Criminal Court: Investigations and Prosecutions

All of the ICC’s initial six investigations come from Africa.

Uganda, Democratic Republic of Congo and Central African Republic. Three of the investigations arise from submissions to the Court by three of its African States Parties–Uganda, the Democratic Republic of the Congo and the Central African Republic. These ICC investigations have led to the issuance of 10 arrest warrants. One of the subjects from Uganda died of natural causes. Five of the subjects of these warrants remain at large. Three of the Congolese subjects (Lubanga, Katanga and Chui) are now on trial at the ICC, with the closing arguments in the ICC’s first trial (Lubanga) scheduled for this coming August. In addition, the trial of Jean-Pierre Bemba for actions in the Central African Republic started this past November.[1]

Kenya. Another investigation relates to Kenya. On November 26, 2009, the Prosecutor on his own initiative asked the Pre-Trial Chamber for permission to open an investigation into post-election violence in Kenya in 2007-2008 as possible crimes against humanity. On March 31, 2010, that Chamber approved that application. A year later–March 8, 2011, the Pre-Trial Chamber authorized the issuance of summonses to six individuals.[2]

Darfur (Sudan) and Libya. The last two investigations –Darfur (Sudan) and Libya– arise from submissions to the Court by the U.N. Security Council under Article 13(b) of the Rome Statute and Chapter VII of the U.N. Charter. (The latter gives the Council responsibility for the maintenance of “international peace and security.”)

In the Darfur (Sudan) situation, the Court has issued seven arrest warrants against six persons. One of the subjects (Bahr Idriss Abu Garda) appeared voluntarily at the Court and was in pre-trial proceedings, but on February 8, 2010, the Pre-Trial Chamber declined to confirm the charges against him, thus ending his case subject to reopening by the Prosecutor if there is additional evidence to support the charges. Two others (both Darfur rebel commanders) voluntarily surrendered themselves to the ICC, and in March 2011, the Pre-Trial Chamber confirmed the charges against them and committed them to trial. Three others remain at large, and one of them (Sudanese President Omar Hassan Ahmed Al Bashir) is the current head of state.[3]

As the Security Council resolution on Darfur itself noted, the Council under Article 16 of the Rome Statute has the power to stop any “investigation or prosecution” by the ICC  for a period of 12 months after the Council adopts a resolution to that effect under Chapter VII of the U.N. Charter and to renew such a resolution ad infinitum. Yet in the over five years after its referral of the Darfur situation to the Court, the Council has not chosen to exercise this power after being kept advised of developments by the Prosecutor’s personal biannual reports to the Council.[4] This refusal to defer the prosecution of President Bashir is despite requests to do so from African and Arab states.

The last of the six ICC investigations relates to the current situation in Libya. On February 26, 2011, the U.N. Security Council adopted Resolution 1970 that, among other things, referred the Libyan situation since February 15, 2011, to the ICC’s Prosecutor, directed the Libyan authorities to cooperate fully with the Court and Prosecutor and invited the Prosecutor to make periodic reports about his actions in this matter to the Council. The resolution also stated that “nationals, current or former officials or personnel from a State outside [Libya], which is not a party to the Rome Statute . . . shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in [Libya] established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State.”[5]

Two days later (February 28th) the Prosecutor stated that he had to decide whether to open an investigation regarding Libya and that he was collecting information to determine whether the necessary conditions for the Court’s jurisdiction were satisfied. [6] Another four days passed, and the Prosecutor on March 3rd announced that he was opening such an investigation.[7]

On May 4th the Prosecutor will report to the Security Council on the status of his Libyan investigation, including a possible request to the Pre-Trial Chamber to issue arrest warrants against those who appear to bear the greatest responsibility for crimes in Libya.

Preliminary examinations. In addition to these six investigations, the Office of the Prosecutor has conducted or currently is conducting preliminary examinations or analyses of situations in a number of other countries to determine if requests to the Pre-Trial Chamber should be made to commence investigations. These countries include Afghanistan, Chad, Colombia, Cote d’Ivorie, Georgia, Guinea, (Gaza) Palestine, Honduras and Nigeria. With respect to Afghanistan, which is a State Party to the Rome Statute, the Prosecutor has said that his office was looking into accusations of war crimes and crimes against humanity by the Taliban and by the U.S. and its allies.[8]

The Prosecutor also has declined to commence certain investigations that had been suggested by outsiders, and under Article 15(6) of the Statute the Prosecutor publicly has stated the reasons for these declinations. Two such instances are Iraq and Venezuela.

The ICC is well on the way to establishing itself as an important actor in the interactive global struggle against impunity for the worst violators of international human rights.

[3] ICC Press Release, Pre-Trial Chamber I declines to confirm the charges against Bahar Idriss Abu Garda (Feb. 8, 2010), http://www.icc-cpi.int/menus/icc/press%20and%20media/press%20releases/news%20and%20highlights/pr495?lan=en-GB.

[4]  See AMICC, ICC Prosecutor Reports to the United Nations, http://www.amicc.org/icc_activities.html#unreports. These reports include discussions of the Prosecutor’s efforts (a) to determine whether Sudan has capable domestic institutions and procedures to handle the crimes in question and (b) to address whether the “interests of justice” call for continuation or termination of the investigations.

[5] U.N. Security Council, 6491st meeting (Feb. 26, 2011); U.N. Security Council, Resolution 1970 (2011)  ¶¶ 4-8 (Feb. 26, 2011).

[6] ICC, Statement by the Office of the Prosecutor on situation in Libya (Feb. 28, 2011).

[7]  ICC, ICC Prosecutor to open an investigation in Libya (March 2, 2011).

[8]  ICC, Office of the Prosecutor, http://www2.icc-cpi.int/Menus/ICC/Structure+of+the+Court/Office+of+the+Prosecutor; Lauria, Court Orders Probe of Afghan Attacks, Wall St. J., Sept. 10, 2009; ICC Office of Prosecutor, Letter to Deputy High Commissioner for Human Rights (Jan. 12, 2010) (alleged crimes during the conflict in Gaza in December 2008 and January 2009), http://www2.icc-cpi.int/NR/rdonlyres/FF55CC8D-3E63-4D3F-B502-1DB2BC4D45FF/281439/LettertoUNHC1.pdf; ICC Office of the Prosecutor, ICC Prosecutor confirms situation in Guinea under examination (Oct. 14,  2009), http://www2.icc-cpi.int/Menus/ICC/Structure+of+the+Court/Office+of+the+Prosecutor/Comm+and+Ref/Guinea.