We just reviewed the current status of the investigative situations and cases of the International Criminal Court (ICC). [1] Now we look at two other major issues facing the ICC–Syria and Palestine, last year’s meeting of the Court’s Assembly of States Parties and the Chief Prosecutor’s statement about this month’s being genocide awareness month.
Syria. As we know from many news sources, popular demonstrations against Syrian President Bashar al-Assad commenced in March 2011 and immediately grew throughout the country. In April 2011, the Syrian Army was deployed to quell the uprising, and soldiers were ordered to open fire on demonstrators. After months of military sieges, the protests evolved into an armed rebellion. By January 2013 the U.N. estimated the war’s death toll had exceeded 60,000, and a month later this figure was updated to 70,000. Another 6,000 reportedly were killed in March 2013.
To respond to this horrible suffering, many have called for the ICC to become involved. One who has repeatedly done so is the U.N. High Commissioner for Human Rights, Navi Pillay. Here are some examples:
During a debate on Syria by the U.N. Human Rights Council in February 2012, she said she believed that the situation of Syria should be referred to the ICC by the U.N. Security Council.
On June 7, 2012, she said, “We continue to witness a serious deterioration of the human rights situation in Syria, which demands our full attention and engagement.” There is evidence of “a pattern of widespread or systematic attacks against civilian populations, and may amount to crimes against humanity and other international crimes. There are indications that the situation in Syria – at least in certain areas – amounts to an internal armed conflict. This would have legal implications, triggering the possibility of commission of war crimes, in addition to crimes against humanity. It makes the call I made to the Security Council to consider referring the case of Syria to the International Criminal Court even more urgent.”
At a February 13, 2013, Security Council meeting, she said, “The lack of consensus on Syria and the resulting inaction has been disastrous and civilians on all sides have paid the price. We will be judged against the tragedy that has unfolded before our eyes.” She said that referring Syria to the ICC could have a very significant preventive effect because it “would send a clear message to both the government and the opposition that there will be consequences for their actions”.
In January 2013, 58 countries signed a joint statement calling for such a referral. In response at least five Security Council members voiced support for same– France, Britain, Australia, Luxembourg and South Korea. The next month, February 2013, U.N. human rights investigator Carla del Ponte said the “time has come” for the Security Council to refer war crimes in Syria to the ICC for prosecution. Similar calls for referral have come from Amnesty International and Human Rights Watch.
The Syrian government obviously opposes such a referral. In January 2013 it said it “regrets the persistence of these countries [that signed the joint statement favoring referral] in following the wrong approach and refusing to recognize the duty of the Syrian state to protect its people from terrorism imposed from abroad.” The statement also accused some of the countries signing the statement of “deceit and double standards” in blaming Syria while financing, training and hosting “terrorists.”
Because Syria is not a state party to the ICC’s Rome Statute, the only way for the Syrian situation to get before the ICC is by a referral from the U.N. Security Council. But so far that has been impossible because Russia and China as permanent members of the Council would veto such a referral as they already have vetoed resolutions to impose sanctions on Syria.[2] For example, this past January the Russian Foreign Ministry said the joint request by over 50 countries for such a referral was “ill-timed and counterproductive to resolving the main task at this moment: an immediate end to the bloodshed in Syria.”
Palestine. In November 2012 the U.N. General Assembly, 138 to 9 with 41 abstentions, voted to grant non-member observer state status to the Palestinian Authority. Those voting “No” included Israel, U.S. and Canada. The abstainers included the U.K. and Germany.
Israel and the U.S. are concerned that the Palestinian Authority (PA) may use its new U.N. status to try a press for an ICC investigation of Israeli practices in the occupied territories. The PA could: (1) attempt to become a State Party at the ICC by ratifying the Rome Statute and then referring alleged crimes to the ICC; or (2) remain a non-State Party but make a declaration accepting the Court’s jurisdiction over a particular set of crimes.
In either option the PA would have to refer an entire situation or train of events to the ICC that would permit the ICC Prosecutor to investigate or prosecute any crime within that situation allegedly committed by anyone, including alleged crimes by Palestinians against Israelis. The State Party option would require the PA to ratify the Rome Statute and then present a document certifying the ratification to the U.N. Secretary-General, who is responsible for administering the Rome Statute. He would have to decide whether the PA was a state competent to ratify. Should he so decide, the Prosecutor and the rest of the ICC would be obliged to proceed as with any other State Party.
In the non-State Party option of a declaration of acceptance of jurisdiction followed by a referral, the ICC Prosecutor would have to make the first decision on whether the PA was a state competent to make the referral. This decision could be challenged in the Pre-Trial Chamber by the PA, or by another state involved in the situation giving rise to the referral, such as Israel.
The PA has in fact already tried this option by submitting a report of alleged crimes and declaration of acceptance of jurisdiction to the ICC Prosecutor in 2009. In April 2012, however, the Prosecutor released a statement that at he was not empowered to decide on the PA’s statehood status. Instead, the Prosecutor said, a U.N. body such as the Security Council or the General Assembly, or the ICC’s Assembly of States Parties, would have to make this determination. After the General Assembly’s recent action, the press has reported that the current Prosecutor is giving the earlier PA declaration further consideration.
Assembly of States Parties. Last November the Assembly of States Parties (ASP) held its 11th session and adopted a budget and made certain elections.
The ASP approved an amendment to the Court’s Rules of Procedure (new Rule 132 bis) that will permit a single judge to perform the functions of a Trial Chamber for the purposes of trial preparation. The amendment was agreed by consensus and is expected to expedite ICC trial preparation.
The ASP also had a general discussion of complementarity, i.e., the principle and practice of the ICC’s deferring to criminal prosecutions in national court systems. Helen Clark, the former prime minister of New Zealand and current administrator of the U.N. Development Program, spoke about the role international development agencies, such as UNDP and others, can contribute to domestic capacity for dealing with ICC crimes. She also urged governments to take responsibility to deliver justice.
U.S. Ambassador-at-Large for Criminal Justice, Stephen J. Rapp, congratulated the ASP for this crucial discussion on both the policy and practice of complementarity. He stressed the importance to governments – States Parties and non-States Parties alike – to strengthen domestic judicial capacity in a manner that is both concerted and coordinated. He also said the U.S. supports ICC prosecutions and building national justice systems by funding support of complementarity; using the tools of diplomacy to support complementarity; providing technical and legal assistance to national systems; and improving fugitive tracking efforts.
There also was discussion about an initiative to adopt a treaty on crimes against humanity that has been prepared by the Whitney R. Harris World Law Institute at the Washington University in St. Louis School of Law.
Genocide Awareness Statement by Prosecutor. In light of this April’s being genocide awareness month, the Court’s Chief Prosecutor called on “all States, whether parties to the Rome Statute or not, to cooperate with the ICC in seeking/pursuing accountability for genocide.” In particular, this meant enforcing the ICC’s warrant for the arrest of Sudanese President Omar al Bashir, who is charged with “genocide by killing, causing serious bodily injury or mental harm and by deliberating inflicting conditions of life calculated to bring about the physical destruction of the Fur, Masalit and Zaghawa ethnic groups in Darfur.”
This post will review the current status of the eight situations (all from Africa) currently under investigation by the Office of the Prosecutor (TOP) of the International Criminal Court (ICC) and the 30 individuals that have been charged by the ICC with crimes in those situations.[1]
In July 2004, pursuant to a referral by the government of Uganda, TOP opened an investigation into the situation of the Lord’s Resistance Army (LRA)in Northern Uganda. That has resulted in charges of crimes against humanity and war crimes against five individuals, four of whom remain at large: Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen. The other (Raska Lukwiya) is deceased.
The hunt for Kony and other LRA leaders continues. Uganda has some 2,500 soldiers deployed around the border areas of Central African Republic (CAR) the Democratic Republic of Congo and South Sudan, where Kony and his fighters are thought to spend most of their time. The Ugandan troops are joined by 500 Congolese fighters, 500 South Sudanese and 350 CAR troops, all operating under the auspices of the African Union (AU). They have been assisted by 100 U.S. special forces. These efforts will continue despite the recent coup in the CAR.
On March 18, 2013, TOP issued a statement that LRA members will not be killed or tortured if they surrender to the ICC. All their human rights will be protected and the cases against them will be in accordance with accepted international human rights standards. They will face a fair, impartial and public justice that respects all their rights, including the right to be represented by a lawyer of their choice, and to present evidence in their defense. If convicted they will not be sentenced to death. Therefore, they should hand themselves over and face a fair justice process at the ICC or remain fugitives in full knowledge that military forces from many countries are looking for them, and they may be cornered, captured, and possibly killed or wounded in the process.
In June 2004, pursuant to a referral by the government of the Democratic Republic of the Congo (DRC), TOP opened an investigation into the situation in the country since June 1, 2002. That has resulted in six cases against six individuals.
Thomas Lubanga Dyilo on March 1, 2012, was convicted of war crimes and on July 10, 2012, sentenced to 14 years imprisonment.
On July 8, 2012, the ICC issued its first decision on reparations. It decided that the potential beneficiaries are the direct and indirect victims who suffered harm following the crimes of enlisting, conscripting and using children under the age of 15 in Ituri in the DRC (9/1/02–8/13/03), including family members of direct victims and individuals who intervened to help the victims or to prevent the commission of these crimes. The decision also established the following principles for reparations:
no discrimination as regards age, ethnicity or gender;
reconciling the victims of child recruitment and their families and communities in Ituri;
preserving their dignity and privacy;
taking into account the age of the victims and the sexual violence that they may have suffered; and
the need to rehabilitate the former child soldiers within their communities.
Germain Katangawent on trial (with Mathieu Ngudjolo Chui) on November 24, 2009, on charges of crimes against humanity and war crimes within the meaning of Article 25(3)(a) of the Statute (committing the crimes jointly through another person). On February 7, 2012, evidence in the case was closed and closing arguments were heard in May 2012 by the Trial Chamber.
On November 21, 2012, the Chamber, 2 to 1, issued an order severing Mr. Chui from this case and deciding that the mode of liability of Mr. Katanga might be changed under Regulation 55(2)[2] to Article 25(3)(d) of the Statute (contributing in any other way to the commission of the crimes by a group of persons acting with a common purpose).
This proposed change (after the trial) was appealed by Mr. Katanga, and on March 27, 2013, the Appeals Chamber, 2-1, affirmed the Trial Chamber. It held that the decision was in accordance with Regulation 55(2) and did not violate the defendant’s right to a fair trial. However, it said, the Trial Chamber will have to be vigilant in its further deliberations to ensure that this right will not be infringed by further trial proceedings.
Mathieu Ngudjolo Chui , as just indicated, was tried with Mr. Katanga from November 24, 2009 through May 23, 2012 on charges of crimes against humanity and war crimes within the meaning of Article 25(3)(a) of the Statute (committing the crimes jointly through another person), but on November 21, 2012, Mr. Chui’s charges were severed.
On December 18, 2012, the Trial Chamber issued its unanimous verdict acquitting Mr. Chui of all charges because it had not been proven beyond reasonable doubt that he was the commander of the Lendu combatants from Bedu-Ezekere during the attack against the Bogoro village on 24 February 2003. On December 21, 2012, Mr. Chui was released from detention pursuant to an order by the Appeals Chamber.
The Office of the Prosecutor has appealed that verdict.
Bosco Ntaganda has been charged with three counts of crimes against humanity and seven counts of war crimes.
On March 22, 2013, he voluntarily surrendered himself to the U.S. Embassy in Rwanda and asked to be turned over to the ICC. His decision prompted speculation as to why he did so. One theory says he was threatened by member of his own rebel group and wanted to save his own life. In any event, soon thereafter he made his initial appearance before the Court and said he was not guilty. The date for his confirmation of charges hearing was set for September 23, 2013.
Callixte Mbarushimana was charged with five counts of crimes against humanity and eight counts of war crimes, but on December 16, 2011, the Pre-Trial Chamber refused to confirm the charges, and on December 23, 2011, he was released from the Court’s custody.
Sylvestre Mudacumura on July 13, 2012, was the subject of the Pre-Trial Chamber’s arrest warrant for allegedly committing nine counts of war crimes in the DRC, including attacking civilians, murder, mutilation, cruel treatment, rape, torture, destruction of property, pillaging and outrages against personal dignity. He is at large.
On May 22, 2007, pursuant to a referral by the government of the Central African Republic (CAR), TOP opened an investigation into alleged crimes, in 2002 and 2003, in that country. In which civilians were killed and raped; and homes and stores were looted in the context of an armed conflict between the government and rebel forces.
Jean-Pierre Bemba Gombo is the only case. He is charged as a military commander, with two counts of crimes against humanity: (murder and rape) and three counts of war crimes (murder, rape and pillaging). His trial started on November 25, 2010, and is not finished.
On June 6, 2005, pursuant to a referral by the U.N. Security Council, TOP opened an investigation into the situation in Darfur, Sudan since July 1, 2002.
That has resulted in six cases involving seven individuals, the following four of whom are still at large: (i) Ahmad Muhammad Harun (20 counts of crimes against humanity and 22 counts of war crimes); (ii) Ali Muhammad Ali Abd-Al-Rahman (22 counts of crimes against humanity and 28 counts of war crimes); (iii) Omar Hassan Ahmad Al Bashir, the President of Sudan (5 counts of crimes against humanity, 2 counts of war crimes and 3 counts of genocide); and (iv) Abdel Raheem Muhammad Hussein (7 counts of crimes against humanity and 6 counts of war crimes).
Bahar Idriss Abu Garda was charged with war crimes, but in 2010, the Pre-Trial Chamber refused to confirm the charges, and rejected the Prosecutor’s application to appeal.
Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus are charged with co-commission of three war crimes. Their trial is scheduled to start on May 5, 2014.
In the latest (December 2012) semi-annual report to the U.N. Security Council on this situation and cases,[3] the Chief Prosecutor said that her office would consider whether further investigations and additional arrest warrants were needed to address recent violations, including reports of thwarting humanitarian aid deliveries, attacks on African Union-United Nations Hybrid Operation in Darfur (UNAMID) peacekeepers and bombardments and attacks on civilian populations.
The Chief Prosecutor also told the Council, “The question that remains to be answered is how many more civilians must be killed, injured and displaced for this Council to be spurred into doing its part. There are no words to properly express the frustration of Darfur’s victims, which we share, about the lack of any meaningful progress towards arresting those indicted by the Courts.”
In response, Sudan’s representative told the Security Council that the Prosecutor’s report was flawed, saying it contained unsubstantiated allegations, and contradicted UNAMID reports. The report’s allegations of gender violence, for instance, did not provide sources, and it mistook tribal clashes for fighting between militias. Also, reported attacks on peacekeepers had in fact been committed by bandits now being pursued by Sudanese authorities. He said the Court had become a tool for “blackmail” and for violating the sovereignty of small States and was being exploited by certain political interests.
Among the other statements at the Council meeting, a U.S. diplomat said mounting violence was a grave concern, including targeted civilian attacks and denying UNAMID access to affected areas. Since UNAMID’s initial deployment in 2007, 43 peacekeepers had been killed, in attacks that could be prosecuted as war crimes. The Council should condemn any and all attacks on mission personnel. Reversing the cycle of violence required accountability for the perpetrators, he said, expressing dismay that the Sudanese Government was not cooperating with the Court, despite its obligation to do so fully. Continued impunity for crimes committed in Darfur fomented instability and sent a dangerous message that there were no consequences to attacking civilians. Welcoming the willingness of States to consider creative approaches and new tools to assist the Court, he also embraced further discussions on resolutions concerning Council referrals to the Court. [4]
On March 31, 2010, the Pre-Trial Chamber, 2-1, authorized TOP to proceed with an investigation that it had proposed into the situation in Kenya between June 1, 2005 and November 26, 2009.
Uhuru Muigai Kenyatta is charged as an indirect co-perpetrator of crimes against humanity (murder, deportation or forcible transfer, rape, persecution and other inhumane acts. The charges stem from his alleged role in funding and organizing ethnic violence leading to the death of an estimated 1,200 people after the 2007 presidential election. His trial is scheduled to start on July 9, 2013.
In the meantime, on March 3, 2013, Kenyatta, who employed anti-ICC propaganda in his presidential election campaign, was narrowly elected President of Kenya, and on March 30th the country’s Supreme Court unanimously rejected a challenge to the election from his main electoral opponent. Kenyatta’s election creates an “awkward” situation, as the New York Times said, for the U.S. and other countries who need good diplomatic relations with Kenya.
William Samoei Ruto was charged with being an indirect co-perpetrator of crimes against humanity. His trial is scheduled to begin on May 28, 2013.
Joshua Arap Sang was charged with having contributed to crimes against humanity. His trial is scheduled to begin on May 28, 2013.
Henry Kiprono Kosgey was charged as an indirect co-perpetrator of crimes against humanity, but the Pre-Trial Chamber declined to confirm the charges.
Mohammed Hussein Ali was charged with crimes against humanity, but in 2012, the Pre-Trial Chamber refused to confirm the charges.
Francis Kirimi Muthaura was charged as an indirect co-perpetrator of crimes against humanity, and the re-Trial Chamber in January 2012 confirmed some of the charges. In March 2013, however, TOP filed notice to withdraw the charges because several people who may have provided important evidence regarding his actions, have died, while others are too afraid to testify for the Prosecution; the Government of Kenya failed to provide TOP with important evidence; and the key witness against him had recanted a crucial part of his evidence and had admitted he had accepted bribes.
On February 26, 2011, the U.N. Security Council referred the situation in Libya since February 15, 2011 to the Court. That has resulted in TOP’s charges against three individuals, one of whom died (Muammar Gaddafi) resulting in the dismissal of his case.
The other two (Saif Al-Islam Gaddafi and Abdullah Al-Senussi) are in the custody of the Libyan Provisional Authority and have not been turned over to the Court despite negotiations to that effect.
In October 2012, Libya asked the ICC to abandon its claims against the two men because it said Libya can give them fair trials in Tripoli. In early 2013, Libyan officials told the ICC that the two men would be put on trial in Libya in May this year and would not face summary trial and execution.
In the latest (November 2012) semi-annual report to the U.N. Security Council on this situation and cases,[5] the Chief Prosecutor said both Saif Al-Islam Qadhafi and Abdullah Al-Senussi had been arrested and detained in Libya, and that the Libyan authorities had challenged the admissibility of the ICC’s case against Mr. Qadhafi and possibly of the case against Mr. Al-Senussi. She said the ICC’s Pre-Trail Chamber would decide the merits of the challenge as to whether the case should be heard at the Court or in Libya, and should the challenge ultimately succeed, TOP would monitor those proceedings and cooperate with Libya, to the extent of the mandate.Emphasizing the pressing need for complementary and mutually supportive approaches to address accountability, she encouraged international support and assistance to enhance Libya’s capacity to deal with past crimes and to promote the rule of law.
A Libyan representative at the Council meeting said his Government had set out its plans for stability, reconciliation and comprehensive justice for crimes that had been committed in his country and that its investigation was already at an advanced stage in some of those cases although the Qadhafi trial had been postponed in order to allow for the most thorough possible investigation. Libya, he continued, has been cooperating with the ICC and was now awaiting the decision on the admissibility challenge in the Qadhafi case and a forthcoming similar challenge in the Al-Senussi case. He reiterated his country’s pledge to carry out all procedures in compliance with international law.
A U.S. diplomat at the Security Council urged the Libyan Government to continue its cooperation with the Court. It was an important moment for both Libya and the Court as they worked together, under their respective roles, in ensuring peace and accountability. It was critical for Libya to ensure the safety of ICC personnel on visits to the country. She added that the U.S. had endeavored to cooperate with the ICC in its efforts regarding Libya, consistent with U.S. law and policy. Impunity for all serious crimes in Libya, including gender crimes, must be avoided, and victims should be assisted. The U.S. would continue to work with the international community to assist Libyan efforts to reform its justice sector and advance human rights in the country.
On October 3, 2001, the Court’s Pre-Trial Chamber granted TOP request to commence an investigation into the situation in the Ivory Coast since November 28, 2010, and in February 2012 the Chamber expanded the investigation to cover the period September 19. 2002 through November 28, 2010.
Laurent Gbagbo, the former president of the country, has been charged with four counts of crimes against humanity. He was surrendered to the Court in November 2011, and his confirmation of charges hearing was held in February 2013.
Simone Gbagbo, the wife of Laurent Gbagbo, has been charged as an indirect co-perpetrator with four counts of crimes against humanity. She has not been turned over to the Court.
On July 13, 2012, the government of Mali referred the situation in that country since January 2012 to the ICC, which has assigned it to the Pre-Trial Chamber.
In January 2012 a rebellion began in Northern Mali, led by the National Movement for the Liberation of Azawad (MNLA). In March 2012, military officer Amadou Sanogo seized power in the country in a coup d’etat, citing the president’s failure to eliminate the rebellion. The MNLA quickly took control of the north, declaring independence as Azawad. However, Islamist groups that had helped the MNLA defeat the government, turned on the rebel group and took control of the North with the goal of implementing Sharia Law in Mali.
On January 11, 2013, the French Armed Forces intervened at the request of Sanogo’s government. On January 30th, the coordinated advance of the French and Malian troops claimed to have retaken the last remaining Islamist stronghold.
In the midst of these military engagements, on January 16, 2013, TOP announced that it formally had opened an investigation into the Situation in Mali since January of 2012. After thorough analysis it said it had found that evidence, admissibility, gravity of potential cases, and interest of justice all support the requirements to open a formal investigation into war crimes allegedly committed in Mali. Crimes alleged to have happened include murder; mutilation, cruel treatment and torture; intentionally directing attacks against protected objects; the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court; pillaging; and rape. The ICC will move to investigate these alleged crimes and bring charges against individuals “who bear the greatest criminal responsibility for the most serious crimes committed.
In late January 2013, TOP warned Malian authorities to put an immediate stop to the alleged abuses and, on the basis of the principle of complementarity, to investigate and prosecute those responsible for the alleged crimes. TOP reminded all parties to the on-going conflict in Mali that it has jurisdiction over all serious crimes committed within the territory of Mali, from January 2012 onwards. All those alleged to be responsible for serious crimes in Mali must be held accountable.
Conclusion
The following summarizes the status of those charged with crimes by the Court as it nears its 11th anniversary on July 1, 2013:
Status
Number
Deceased
2
At large or not in Court custody
12
Pre-Trial: charges not confirmed
6
Pre-Trial: pending
1
Trials scheduled to start by 12/31/14
5
At trial
1
Tried and convicted
1
Tried and status in question
1
Tried and acquitted
1
TOTAL
30
[1] There have been many prior posts about the ICC.
[2]Regulation 55, which is titled “Authority of the Chamber to modify the legal characterization of facts,” says in part (2),”If, at any time during the trial, it appears to the Chamber that the legalcharacterisation of facts may be subject to change, the Chamber shall give noticeto the participants of such a possibility and having heard the evidence, shall, atan appropriate stage of the proceedings, give the participants the opportunity tomake oral or written submissions. The Chamber may suspend the hearing toensure that the participants have adequate time and facilities for effectivepreparation or, if necessary, it may order a hearing to consider all mattersrelevant to the proposed change.” Part (3) goes on to say, “For the purposes of sub-regulation 2, the Chamber shall, in particular,ensure that the accused shall:(a) Have adequate time and facilities for the effective preparation of his or herdefence [sic] in accordance with article 67, paragraph 1 (b); and (b) If necessary, be given the opportunity to examine again, or have examined again, a previous witness, to call a new witness or to present other evidence admissible under the Statute in accordance with article 67, paragraph 1 (e).”
[3] A prior post discussed the June 2012 ICC report to the Security Council on the Darfur/Sudan referral.
[4] The U.S. statement regarding Sudan/Darfur is available online.
[5] A prior post discussed the May 2012 ICC report to the Security Council on the Libyan referral.
On June 5th the ICC’s Prosecutor, Luis Moreno-Ocampo, gave his semi-annual report to the U.N. Security Council.
He said the Court had “fulfilled its judicial mandate.The evidence collected uncovered the functioning of the State apparatus used to commit genocide, crimes against humanity and war crimes. Those who bear the greatest responsibility have been indicted [Sudanese President al-Bashir, its defense minister, former interior minister and a leader of the Janjaweed militia]. The current challenge is their arrest.”
The Prosecutor added, “President Al Bashir is taking advantage of his position of power to continue with his strategy and to ensure his own impunity and the impunity of those who follow his instructions.” That strategy, the Prosecutor stated, includes:
“threats to the international community to commit new crimes in other areas of the Sudan;
denial of his own crimes, denial of the rapes in the villages and in the camps; attributing the killings to banditry, sporadic clashes between rebel groups, or reducing its relevance through statistic comparisons; and attributing conditions in the camps to other factors like drought, lack of proper seeds or inability to access farming land;
forcing the international community into a never-ending negotiation in order to gain access to those displaced;
a permanent promise of a peace negotiation. The international community chases promises of peace agreements that are systematically ignored while President Bashir’s forces commits more attack and creates the conditions for new promises of peace agreements;
announcements of justice initiatives followed only by new announcements, not by action. After more than seven years of instituting judicial mechanisms, the . . . [government] has conducted no proceedings relevant to the crimes committed in Darfur; and
the open defiance of the Security Council’s authority including public announcement that its resolutions will not be implemented.”
The Prosecutor, therefore, suggested that the Council request all 193 U.N. member states or regional organizations to take action to enforce the arrest warrants.
The Council’s record of the meeting indicates that the Prosecutor’s report was supported by the representatives of the U.S., the U.K., France, Germany Portugal, Colombia, Guatemala and Togo. More qualified support with emphasis on assisting negotiation of peace accords to end the fighting in Sudan/Darfur was expressed by Morocco, South Africa, Pakistan, Azerbaijan, Russia, India and China.
The session ended with a heated exchange between Moreno-Ocampo and the Sudanese Ambassador after earlier he had rejected the Prosecutor’s assertions as “fallacious.”
The Prosecutor said that he was advising the Council and putting the Ambassador on notice that his denial of crimes in Darfur “could be considered part of those crimes” and that the Prosecutor’s office had “an obligation to investigate anyone responsible for the commission of crimes.” Therefore, his office would investigate whether this denial “could be considered a contribution to a group of perpetrators acting with a common purpose” and would take appropriate action if the evidence supports such a contention.
The Sudanese Ambassador responded in Arabic (and translated into English) that this statement was “a violation of all political and diplomatic norms. It is a threat that should be rejected . . . and a statement of a terrorist who is trying to silence the voice of justice and [a statement] of a politician who does not recognize the political and diplomatic rules and norms that give us the right to defend ourselves and make our voices heard by the Council.” The Ambassador added that the Prosecutor “has tackled all of these issues–in a totally illegal, immoral and illogical manner, to the extent of intimidation and terrorization.”
Earlier posts have discussed various aspects of the ICC’s investigation of the Sudan/Darfur situation, including the Security Council’s referral of the Sudan/Darfur situation to the ICC in March 2005 during the George W. Bush Administration and the Prosecutor’s report to the Council in June 2011 with a comment to the latter about the December 2011 report to the Council.
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 isone 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.
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 KonyPresident 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.
[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).
Over the last several weeks there have been important developments regarding the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Court (ICC).
ICTR.
As we already have seen, the ICTR is winding down to complete its work by July 1, 2012, and one of the ways it is doing so is referring some cases to national judicial systems.[1] On June 26th, the ICTR referred one of its cases to the Rwandan national courts, the first time it had ever done so. It did so because there was evidence that Rwanda had made material changes to its laws and now had the capacity and intention to prosecute such cases in accordance with international standards of fair trial and human rights. The ICTR suggested that the African Commission on Human and Peoples Rights monitor the proceedings and notify the ICTR of any problems for its possible revocation of the referral.[2]
On June 24th the ICTR announced the conviction of six defendants in the Butare case for genocide and related crimes. They received sentences from 25 years to life.[3]
Finally the recently arrested Bernard Munyagishari made his initial appearance before the ICTR and pleaded not guilty to charges of genocide, conspiracy to commit genocide and crimes against humanity (murder and rape) of Tutsi women.[4]
ICTY.
On June 29th the U.N. Security Council unanimously adopted Resolution 1993 to extend the terms of office of the ICTY judges until December 31, 2012. It did so to facilitate the ICTY’s completing the trial of all of its pending prosecutions. The resolution also called for all States, especially the States of the former Yugoslavia, to intensify cooperation with, and assistance to, the ICTY, including the arrest of Goran Hadzic.[5]
On July 4th Ratko Mladic made his initial appearance before the ICTY and refused to enter pleas because he said he was not represented by lawyers of his choice. After he had repeatedly and loudly interrupted the proceedings, the judges ordered him removed from the courtroom and thereafter entered pleas of not guilty on his behalf. He faces charges of genocide and war crimes.[6]
ICC
There have been significant developments regarding the Libyan, Sudan (Darfur) and Kenyan investigations and prosecutions by the ICC. Many of these developments involve the ICC’s tense relations with the African Union (AU) as will be seen below.
Libya. As previously reported, the ICC on June 27th authorized the issuance of arrest warrants for Colonel Muammar Gadhafi and two others for crimes against humanity in Libya since February 15, 2011. The ICC Prosecutor has emphasized the importance and difficulty of making the actual arrests of these three individuals.[7]
On July 2nd the execution of these ICC arrest warrants was made even more difficult by a resolution adopted by the AU. It recommended that its 53 member-states “not cooperate in the execution of the arrest warrant” for Colonel Gadhafi. This warrant, the AU said, “seriously complicates the efforts aimed at finding a negotiated political solution to the crisis in Libya which will also address, in a mutually-reinforcing way, issues relating to impunity and reconciliation.” This decision increases the chances for Gadhafi to avoid ICC prosecution by obtaining refuge in another African country. The AU also requested the U.N. Security Council to exercise its authority under Article 16 of the ICC’s Rome Statute to defer or stay the ICC’s investigations and prosecutions regarding Libya for one year.[8]
This AU resolution conflicts with the obligations of the 32 African states that are parties to the ICC’s Rome Statute. Its Article 86 obligates them to “cooperate fully with the Court in its investigation and prosecution of crimes within [its] jurisdiction.”
Sudan. Pursuant to U.N. Security Council referral, the ICC Prosecutor has been conducting investigations and prosecutions regarding the Sudan (Darfur). One of the prosecutions has been of the Sudanese President Bashir.[9]
The just noted inherent difficulties of enforcing ICC arrest warrants has also been in the news with respect to the recent trip to China by President Bashir.[10] His earlier trips to other African countries (Chad, Kenya and Djibouti) that are ICC States Parties have been defended by the AU as consistent with these countries’ obligations under the AU’s Constitutive Act and Article 98 of the Rome Statute as well as their efforts to promote peace and stability in their regions.[11]
In the meantime, violence continues in Sudan.[12] The AU Summit issued nice-sounding words about the need for a peaceful transition in Sudan. This included a more general request to the U.N. Security Council to defer all ICC investigations and prosecutions regarding Sudan for one year. [13]
Kenya. As previously reported, the ICC Pre-Trial Chamber on March 31, 2010, authorized the Prosecutor to commence an investigation of post-election violence in Kenya in 2007-2008, and on March 8, 2011, that Chamber authorized the issuance of six arrest summonses.[14]
At its recent Summit, the AU stressed the need to pursue all efforts to have the U.N. Security Council use its authority under Article 16 of the Rome Statute to defer or stay the ICC’s investigations and prosecutions regarding Kenya for one year. Such a deferral, the AU stated, would enable an investigation and prosecution by a reformed Kenyan judiciary in accordance with the ICC’s principle of complementarity. [15]
U.N. Security Council.
As we have just seen, all of the current ICC investigations and prosecutions come from Africa, two upon referrals by the U.N. Security Council and all of which potentially are subject to deferral by the Council. Thus, it is not surprising that the AU at its recent Summit meeting re-emphasized its desire for reform of the U.N. Security Council in order “to correct . . . the historical injustice done to the [African] continent, which continues to be unrepresented in the permanent category and under-represented in the non-permanent category of the . . . [Council].”[16]
To this end, the AU reaffirmed its Ezulwini Consensus on proposed U.N. reforms. With respect to the Security Council, this Consensus called for Africa to have two permanent and five non-permanent members on a reformed Council as chosen by the AU.[17]
[1] Post: International Criminal Justice: Winding Down Two Ad Hoc Criminal Tribunals (June 18, 2011).
[2] ICTR Press Release, Case of Jean Uwinkindi Referred for Trial to the Republic of Rwanda (June 28, 2011); Reuters, U.N. Court Refers Genocide Case to Rwanda, N.Y. Times (June 28, 2011). Uwinkindi is a former Pentecostal pastor who has been accused of genocide, conspiracy to commit genocide and crimes against humanity (extermination) against the Tutsi people. (Id.)
[3] ICTR Press Release, Butare Judgment Released (June 24, 2011)
[4] ICTR Press Release, Bernard Munyagishari Pleads Not Guilty (June 20, 2011).
[5] U.N. Security Council Press Release, Terms of 17 Judges with [ICTY] Extended (June 29, 2011); ICTY Press Release, Security Council extends Terms of ICTY Judges and Calls for Increased Cooperation with the Tribunal (June 30, 2011).
[6] Reuters, Mladic to ‘boycott war crimes hearing,’ Guardian (July 4, 2011); Simons & Cowell, Hague Judge Orders Mladic Removed From Courtroom, N.Y. Times (July 4, 2011). See Post: International Criminal Justice: Mladic To Face Charges at ICTY (May 27, 2011); Post: International Criminal Justice: Mladic Update (June 1, 2011); Post: International Criminal Justice: Winding Down Two Ad Hoc Criminal Tribunals (June 18, 2011).
[7] See Post: The International Criminal Court: Introduction (April 28, 2011); Post: The International Criminal Court’s Investigations and Prosecutions (April 28, 2011); Post: The International Criminal Court: Libya Investigation Status (May 8, 2011); Post: The International Criminal Court: Investigation of Gang-Rape in Libya (May 17, 2011); Post: The International Criminal Court: Issuance of Libyan Arrest Warrants and Other Developments (June 27, 2011); Stephen, Muammar Gaddafi war crimes files revealed, Guardian (June 18, 2011); Fahim, Claims of Wartime Rapes Unsettle and Divide Libyans, N.Y. Times (June 19, 2011).
[8] Associated Press, AU Members Agree to Disregard ICC Gadhafi Warrant, N.Y. Times (July 2, 2011); Associated Press, African Union calls on member states to disregard ICC arrest warrant against Libya’s Gadhafi, Wash. Post (July 2, 2011); Amann, AU v. ICC, yet another round (July 3, 2011), http://intlawgrrls.blogspot.com/2011/07/au-v-icc-yet-another-round.html; AU Comm’n, Decisions adopted during the 17th African Union Summit (July 4, 2011), http://www.starafrica.com/en/news. Less than three weeks earlier the AU told the U.N. Security Council that the AU will not hide from its responsibility to help resolve the Libyan conflict. (U.N. Security Council, Press Release: African Union Will Never Hide from Responsibilities in Resolving Libyan Conflict (June 15, 2011).
[9] See Post: The International Criminal Court: Introduction (April 28, 2011); Post: The International Criminal Court’s Investigations and Prosecutions (April 28, 2011).
[10] Post: International Criminal Court: ICC Prosecutor Updates U.N. Security Council on Sudan (Darfur) (June 17, 2011); Higgins, Oil interests tie China to Sudan leader Bashir, even as he faces genocide charges, Wash. Post (June 22, 2011); Associated Press, Embattled Sudan president visits chief diplomatic backer, China, Wash. Post (June 29, 2011); Wines, Sudanese Leader Is Welcomed in Visit to China (June 29, 2011); Associated Press, UN: China Should Have Arrested Al-Bashir, N.Y. Times (June 30, 2011) (U.N. High Commissioner for Human Rights).
[12] Post: International Criminal Court: ICC Prosecutor Updates U.N. Security Council on Sudan (Darfur) (June 17, 2011); Gettleman, Sudan to Pull Troops From Abyei and Allow Peacekeepers, N.Y. Times (June 20, 2011); Kron, Ethnic Killings by Army Reported in Sudanese Mountains, N.Y. Times (June 20, 2011); Gettleman, As Secesssion Nears, Sudan Steps Up Drive to Stop Rebels, N.Y. Times (June 20, 2011); Bilefsky, U.N. Approves Troop Deployment in Sudan, N.Y. Times (June 27, 2011); Gettleman, Sudan Signs Pact With Opposition Forces, N.Y. Times (June 28, 2011); Reuters, Two Sudans to Create a Buffer Zone, N.Y. Times (June 29, 2011); Kristof, Yet Again in Sudan (June 29, 2011)(Sudanese government conducting vicious campaign of ethnic cleansing, murder and rape in Nuba Mountains); Gettleman, Another Area Girds for Revolt as Sudan Approaches a Split, N.Y. Times (June 30, 2011); Reuters, Sudan President [Bashir] vows to Fight, N.Y. Times (July 1, 2011); Gettleman, Sudanese Struggle to Survive Endless Bombings Aimed to Quell Rebels, N.Y. Times (July 3, 2011); Fagotto, Sudan partition leaves rebel Nuba region feeling betrayed, Guardian (July 3, 2011); Reuters, North and South Sudan Delay Talks Until After Split, N.Y. Times (July 4, 2011); Associated Press, Sudan President to Speak at S. Sudan Independence, N.Y. times (July 4, 2011).
As previously reported, the ICC has been investigating the situation in Sudan (Darfur) for genocide, crimes against humanity and war crimes since July 1, 2002, at the request of the U.N. Security Council.[1]
On June 8, 2011, the ICC Prosecutor made his semi-annual report to the U.N. Security Council on the status of his office’s investigations and prosecutions in this matter.[2] The following are the main points of that report:
There are three pending ICC prosecutions from Sudan (Darfur). In two of them–Harun and Kushayh and Bashir–the defendants are still at large, and thus the proceedings have not really commenced. In the third case against two rebel commanders, the parties have agreed to certain facts and limited the trial to three issues: (1) whether a certain attack by the rebels was unlawful; (2) if the attack is deemed to be unlawful, whether the defendants were aware of the factual circumstances that established its illegality; and (3) whether the African Union Mission in Sudan was a peacekeeping mission in accordance with the U.N. Charter. In this third case, the defendants do not dispute their participation in the attack and both have committed to surrender voluntarily to the ICC.
The Prosecutor also said his office was considering presenting a fourth Sudanese case to the Court’s Pre-Trial Chamber for its decision whether or not to issue arrest warrants.
All of these cases concern past alleged crimes. In addition, the Prosecutor reported that the following crimes were continuing: bombing attacks targeting or indiscriminately affecting civilians; ground attacks targeting civilians; widespread sexual and gender-based violence; attacks on human rights defenders, civil society members and community leaders; deliberately inflicting conditions of life calculated to cause physical destruction of groups of people; forcible transferring of populations; recruitment and use of child soldiers; and concealing information on crimes.
The government of Sudan has announced its investigations of these alleged crimes and the creation of new entities to do so, but there are no such investigations, and the announcements are parts of a governmental policy of covering up the crimes and avoiding international scrutiny.
When the ICC exposes these crimes, the reaction of President Bashir and other leaders has been “to deny the crimes entirely, attribute them to other factors (such as inter-tribal feud), divert attention by publicizing . . . ceasefire agreements that are violated as soon as they are announced and threaten the international community with retaliation and even more crimes. . . . Bashir has successfully transformed public knowledge of his criminal responsibility as a negotiating tool.”
“It is the challenging responsibility of the . . . Security Council to use the information exposed by the [ICC] to stop the crimes in Darfur, to protect the civilians in Darfur. The [ICC] Prosecution, fulfilling its mandate, is willing to assist.”
After the submission of this report, the Council’s 15 members went into private session to discuss the report. They were joined by representatives of 37 other countries.[3]
Immediately after this Security Council meeting there were reports of a “growing sense of panic” in central Sudan with 60,000 displaced people, blocked relief convoys, ethnic clashes and many deaths. This week the Council was given an alarming report about current violence and threatened ethnic cleansing.[4] In short, the armed conflict in Darfur has not stopped. Nor has the illegal intentional practice of targeting civilians.
Sudanese President Bashir’s evasion of arrest to face ICC charges continues to make the news. On June 13th, Hillary Clinton, U.S. Secretary of State, addressed African leaders at a meeting of the African Union in Addis Ababa, Ethiopia and pressed them to abandon authoritarian rulers. President Bashir also was in Addis Ababa for the meeting, but left before Clinton arrived.[5] On June 14th Amnesty International urged Malaysia to withdraw an invitation to President Bashir to attend an upcoming economic forum and to arrest him if he came. On June 16th Amnesty International made a similar plea to China after its announcement that Bashir would be visiting that country next week supposedly to talk about seeking peace in his country.[6]
[1] See Post: International Criminal Justice: Introduction (April 26, 2011); Post: International Criminal Court: Introduction (April 28, 2011); Post: International Criminal Court: Investigations and Prosecutions (April 28, 2011).
[2] ICC Office of Prosecutor, Thirteenth Report of the [ICC] Prosecutor to the UN Security Council [on Sudan (Darfur)] (June 8, 2011); ICC Office of Prosecutor, Statement to the [U.N.] Security Council on the situation in Darfur, the Sudan (June 8, 2011); U.N. Security Council,6548th Meeting (June 8, 2011); U.N. Security Council, Press Release: President of Sudan Has Learned To Defy Security Council . . . . (June 8, 2011).
[4] Gettleman, U.N. Officials Warn of a Growing ‘Panic” in Central Sudan as Violence Spreads, N.Y. Times (June 15, 2011); Lynch, Obama expresses concern over Sudan violence, Wash. Post (June 16, 2011); Reeves, In Sudan, genocide anew?, Wash. Post (June 17, 2011); Totten, Is Omar Hassan al-Bashir Up to Genocide Again?, N.Y. Times (June 18, 2011).
[5] Myers, Clinton Presses Africans to Abandon Authoritarian Rulers, Singling Out Qaddafi, N.Y. Times (June 13, 2011).
[6] AP, Amnesty urges Malaysia to withdraw invitation to Sudan president or arrest him when he arrives, Wash. Post (June 14, 2011); AP, China Invites Sudan Leader Accused of War Crimes, N.Y. Times (June 16, 2011); AP, US Seeks China’s Help in Sudan as Alarm Grows, N.Y. Times (June 16, 2011); AP, Sudan leader al-Bashir to skip Malaysia forum amid calls to arrest him on war crime charges, Wash. Post (June 15, 2011).
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.
[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.
