Tag: Sudan (Darfur)

International Criminal Court: Status of Its Situations and Cases

International Criminal Court
International Criminal Court

 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]

1. Uganda

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.

2. Democratic Republic of the Congo

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 Katanga went 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.

3. Central African Republic

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.

4. Darfur/Sudan

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]

5. Kenya

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.

6. Libya

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.

7. Ivory Coast (Côte d’Ivoire)

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.

8, Mali

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 legal characterisation of facts may be subject to change, the Chamber shall give notice to the participants of such a possibility and having heard the evidence, shall, at an appropriate stage of the proceedings, give the participants the opportunity to make oral or written submissions. The Chamber may suspend the hearing to ensure that the participants have adequate time and facilities for effective preparation or, if necessary, it may order a hearing to consider all matters relevant 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 her defence [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.

Is the International Criminal Court Flawed?

A July 8th New York Times headline proclaims, “Arab Uprisings Point Up Flaw in Global Court.” It erroneously suggests that the people operating the International Criminal Court are stupid or cowardly or that the diplomats who in 1998 drafted the ICC’s governing treaty, the ICC’s Rome Statute, were similarly stupid or cowardly.

The article starts with the facts that the ICC has not initiated an investigation of human rights abuses in Yemen and Syria. That is lamentable, but it is not due to a flaw in the operations of the ICC or the Rome Statute.

It is due instead to the limitations on the Court’s jurisdiction that were intentionally established in the drafting of the Rome Statute because of opposition of states like the U.S. that did not want the Court commencing investigations or criminal prosecutions against their citizens if the state did not ratify that Statute.

That Statute’s Article 12 provides, in part, that the Court has jurisdiction if certain crimes (genocide, crimes against humanity or war crimes) are committed on the territory of a state that is a party to the Rome Statute or by nationals of such a state. Neither Yemen nor Syria is such a party, as is true for all other states in the Mideast except Jordan. Thus, the Court does not have jurisdiction of such an investigation or prosecution under Article 12.

The Rome Statute’s Article 13(b) also provides jurisdiction for the Court if the U.N. Security Council, acting under Chapter VII of the U.N. Charter (Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression), refers a situation of suspected crimes of that nature to the ICC even if the state where the conduct occurred or whose nationals are involved had not ratified the Rome Statute. In fact, as the New York Times article points out, the Security Council has twice done so: Sudan (Darfur) and Libya.

However, as most people know, the U.N. Charter that was drafted in 1945 at the end of World War II grants in Article 27(3)  a veto on any action by the Council to each of its five permanent members: the U.S., the United Kingdom, France, the Union of Soviet Socialist Republics [now Russia] and the Republic of China. The failure of the ICC to undertake any investigation of the Yemen situation is due to a threatened veto by the U.S. of such a referral.

With respect to Syria, the U.S. in June 2011 reportedly was seeking Russian and Chinese support for a Council referral of the situation to the Court, but that was obviously unsuccessful because no such proposal was actually advanced in the Council. In November 2011 four U.S. Senators (Dick Durbin, Benjamin Cardin, Robert Menendez and Barbara Boxer) sent a letter to the U.S. Ambassador to the U.N. (Susan Rice) asking for such a Security Council referral. They said, “The people of Syria deserve to know that the people of the United States understand their plight, stand behind them, and will work to bring justice to the country.” Security Council referral of Syria to the ICC also has been endorsed by the New York Times.

The next month (December 2011) the U.N. High Commissioner for Human Rights urged the Security Council to make such a referral. But nothing happened, again because of threatened vetoes by Russia and China.

If there is any “flaw” in this structure with respect to Yemen and Syria it is the veto right of the five permanent members of the Security Council. Although many, if not most, of the U.N. members that are not permanent Council members dislike the superior status and veto rights of the permanent Council members and voice various suggestions for reform of the Security Council, expert observers of the U.N. do not think that is at all likely in the near future.

In the meantime, 121 of the 192 U.N. members are now parties to the Rome Statute, and the Court’s governing body (its Assembly of States Parties) is working towards its goal of universal ratification of the Rome Statute. If and when that happened, the Court could initiate investigations and prosecutions with respect to all such parties without Security Council action.

Over the last 60-plus years the peoples of the world through their nation-state governments have been struggling to climb out of the pits of depravity of World War II by creating or codifying international norms or human rights and by constructing mechanisms to protect individuals that are beyond the control of their own national governments while such governments still have sovereignty over most aspects of their lives. The creation and operation of the International Criminal Court and other so-called ad hoc international criminal tribunals are important pieces of this effort. This is an inherently difficult process, and many compromises are necessary in order to make any progress. But the story is not finished. Further development, I am confident, will occur.

International Criminal Court: Recent Developments

International Criminal Court

There have been significant recent developments at the International Criminal Court (ICC) with respect to Libya, the Democratic Republic of the Congo, Kenya, Sudan/Darfur, the Office of the Prosecutor, the campaign to add more States Parties to the Court’s Rome Statute and commentary on one of the Statute’s provisions.

Libya

ICC Report to Security Council. On May 16th the ICC Chief Prosecutor, Luis Moreno-Ocampo, made his semi-annual and last report on the situation in Libya to the U.N. Security Council. This was discussed in a prior post.

Postponement of Surrender of Saif Al-Islam Gaddafi. On June 1st the ICC’s Pre-Trial Chamber decided that Libya may postpones its execution of the Court’s request for the surrender of Saif Al-Islam Gaddafi , pending the Court’s final determination of Libya’s challenge to the admissibility of the case.

Libyan Detention of ICC Personnel. On June 6th four ICC staff members arrived in Libya to meet with Mr. Gaddafi to discuss his legal representation before the ICC. They were Melinda Taylor, an attorney who works in the ICC’s office of public defense and who was appointed to act as one of two interim lawyers for Mr. Qaddafi; an interpreter, Helene Assaf, from Lebanon; and Alexander Khodakov, a former Russian diplomat, and Esteban Losilla, a Spanish lawyer, who were sent to find out whether Mr. Qaddafi wanted counsel of his own choosing. Their visit had been agreed to by Libya.

The next day (June 7th), however, the four people were detained by Libyan authorities. The ICC protested their detention and demanded their immediate release.

However, as of June14th they were still being detained. They are accused of bringing a camera disguised as a pen and suspicious documents–letters for Gaddafi from allegedly dangerous people who are supporters of the old regime and a page with drawings that looked like codes. They also had three blank pages that were signed by Mr. Gaddafi. The Libyan authorities say they will not be released until Ms. Taylor answers questions about her dealings with Mr. Gaddafi.

In addition, as of June 14th the Libyan attorney general had said he had decided that Ms. Taylor and Ms. Assaf could be held for up to 45 days awaiting the results of his inquiry into possible “threats to national security.” The other two could leave Libya, but had chosen to stay to support their colleagues. The National Transitional Council has said that it was powerless to release the four individuals or influence the investigation

On June 15th the ICC issued a press release announcing that on the 12th (with the cooperation of Libyan officials) representatives of the ICC had met with the four individuals, who said they were in good health and had been well treated. The press release also made conciliatory comments that the ICC welcomed  the Libyan assistance, that the ICC was “very keen to address any regrettable misunderstandings on either side about the delegation’s mandate and activities during its mission in Libya” and that the ICC hoped “the release of the four detained persons will take place with no delay, in the spirit of the cooperation that has existed between the Court and the Libyan authorities.”

Democratic Republic of the Congo

Thomas Lubanga. On June 13th the ICC’s Trial Chamber held its hearing on the sentencing of Mr. Lubanga, who had been found guilty of war crimes regarding child soldiers. The Prosecutor asked for a sentence of 30 years imprisonment because of the seriousness of the crimes and the presence of these aggravating factors: (1) Lubanga as the top leader bears the greatest responsibility for the actions of the UPC militia; (2) his recruitment of children included particularly cruel treatment; (3) girls were recruited as sex slaves and were daily victims of rape by commanders and soldiers; and (4) children needed to be protected against violence and injuries and for their right to education.

Germain Katanga and Mathieu Ngudjolo Chui. The trial of these two gentlemen recently concluded, and the Trial Chamber’s judgment will be issued in the next several months. An interesting analysis of one of the issues raised in this case has been provided by Jennifer Easterday, a Ph.D. Researcher for the Jus Post Bellum project at the Grotius Centre for International Legal Studies at the University of Leiden in the Netherlands. That issue is whether the Trial Chamber may re-classify a conflict from international to non-international armed conflict or visa versa.

Callixte Mbarushimana. On May 30th, the ICC’s Appeals Chamber unanimously dismissedthe Prosecution’s appeal of the Pre-Trial Chamber’s refusal to confirm charges against Callixte Mbarushimana. The Appeals Chamber found that the Pre-Trial Chamber may evaluate ambiguities, inconsistencies, contradictions or credibility doubts in the evidence in determining whether to confirm charges under article 61 of the Rome Statute. The Appeals Chamber emphasized that “the confirmation of charges hearing exists to ensure that cases and charges go to trial only when justified by sufficient evidence” and that article 61(7) of the Rome Statute requires the Pre-Trial Chamber to evaluate whether the evidence is sufficient to establish substantial grounds to believe the person committed each of the crimes charged.

The Appeals Chamber also rejected the Prosecutor’s contention that under article 25(3)(d) of the Rome Statute, the contribution of an accused individual must be “significant”, because the alleged error did not materially affect the decision of the Pre-Trial Chamber. One of the three appellate judges, however, stated that the Pre-Trial Chamber erred in finding that the contribution to the crimes must be significant under article 25(3)(d) of the Rome Statute.

An NGO has observed that the decisions in the Callixte case are indicative of a more significant problem regarding gender-based crimes. It asserts that “more than half of all charges for gender-based crimes which reach the confirmation stage are not being successfully confirmed[;] no other category of charges before the ICC faces this level of dismissal and contention.”

Sylvestre Mudacumura. On May 31st the ICC’s Pre-Trial Chamber unanimously dismissed, in limine (without examining the merits), the Prosecutor’s application for a warrant of arrest against Mr Sylvestre Mudacumura, considering that this application “fell short of the proper level of specificity” in describing the alleged crimes “for which the person’s arrest is sought”. The Chamber said the Prosecutor’s application did not provide “proper counts or any other kind of accompanying description of the specific facts underlying the crimes” and failed to “set out the specific references to the alleged crimes” as requested by the Rome Statute.

On June 13th the ICC Prosecutor submitted an amended application for an arrest warrant against Mr. Mucadumura, for five counts of crimes against humanity (murder, inhumane acts, rape, torture and persecution) and nine counts of war crimes (attack against a civilian population, murder, mutilation, cruel treatment, rape, torture, destruction of property, pillaging and outrage upon personal dignity). The Prosecution said it considers Mr. Mudacumura the Supreme Commander of the FDLR-FOCA, one of the most active militias in the Kivu Provinces of the DRC, and is allegedly responsible for a campaign of violence targeting civilians in these provinces.

Kenya

On May 24th, the ICC’s Appeals Chamber unanimously rejected challenges to the ICC’s jurisdiction in the two Kenyan cases. It said that the interpretation and existence of an ‘organizational policy’ for certain crimes against humanity under the Rome Statute relate to the substantive merits of these cases, not whether the Court has subject-matter jurisdiction. Therefore, the Chamber found that the ICC has subject-matter jurisdiction over the alleged crimes.

Sudan/Darfur

On June   the ICC Prosecutor reported on the situation in Sudan/Darfur to the U.N. Security Council. This was discussed in a prior post.

New Chief Prosecutor

ICC Prosecutor Basouda

On June 15th, Fatou Bousouda, the ICC’s new Chief Prosecutor, officially took office. In her acceptance of this position, she said she was “humbled” by her appointment, and promised to continue pursuing all cases that fall under the court’s jurisdiction. Other major  points in her speech were the following:

  • “The one thing which every one of you can rest assured of is that I will be the Prosecutor of all the 121 States Parties, acting in full independence and impartiality. Justice, real justice, is not a pick‐and‐choose system. To be effective, to be just and to be a real deterrent, the Office of the Prosecutor’s activities and decisions will continue to be based solely on the law and the evidence.”
  • “Thanks to the tireless efforts and the commitment of Luis Moreno‐Ocampo, [her predecessor, there is now] . . .  a well‐respected and sound functioning Office [of the Prosecutor], with almost 300 staff from 80 countries, 7 situations under investigation, 14 cases before the Chambers, 7 preliminary examinations and one verdict.”
  • “As I speak, massive crimes continue to be committed in Darfur (Sudan); Joseph Kony and the Lord’s Resistance Army’s acts of violence continue unabated in central Africa. . . . In total, 11 arrest warrants remain outstanding. Nothing short of arresting all those against whom warrants have been issued will ensure that justice is done for millions of victims of . . . [their] crimes. . . .”

The Chief Prosecutor of the International Criminal Tribunal for the Former Yugoslavia and a former ICC Deputy Prosecutor, Serge Brammertz, has emphasized the urgent need for the new ICC Chief Prosecutor to have the support of states in arresting the Court’s fugitives. He stressed the need for universal acceptance of the ICC as one way to combat the concern about its current exclusive concentration on African situations. Another of his suggestions for the new ICC Chief Prosecutor was doing more  to strengthen national court systems that are capable of handling the crimes that are within the ICC’s jurisdiction under the principle of complementarity.

Because the ICC cannot respond to atrocities the world over, Brammertz says, the U.N. should use the work of international fact-finding and investigatory commissions as bases “for choosing the right follow-up action, whether technical help to the affected country, setting up hybrid national/international structures, or referring the situation to the ICC.”  There also needs to be standard procedures for collecting and storing evidence or conducting interviews as well as a permanent operational infrastructure for such commissions.

A columnist for London’s Guardian newspaper suggested the following priorities for the new Prosecutor:

  1. Rebuild ICC relations with Africa. All of the Court’s active investigations and prosecutions come from Africa, and many Africans believe the Court is anti-African. Bensouda, herself an African, should consult more frequently with the African Union and work to restore confidence in the Court.
  2. Prosecute cases in other regions. She should continue pending preliminary _– into Columbia, Afghanistan, Georgia, Honduras and North Korea and seek permission to start an investigation of Syria. She also should work to increase the number of Arab nations that are States Parties.
  3. Restore transparency to the internal and external practices of the ICC. She should create clear and public processes for launching investigations and issuing arrest warrants, particularly in cases where she acts proprio motu – exercising her discretion to launch investigations of her own initiative.
  4. Improve witness protection and investigatory techniques.
  5. Improve investigatory techniques. The ICC needs to avoid over-reliance on NGOs that are not trained in interrogation and evidence gathering.

ICC States Parties

The ICC is engaged in a campaign for universal adoption of its Rome Statute to persuade the remaining 72 U.N. Members that are not States Parties to join the 121 that already have done so. This campaign, it has been suggested, could be strengthened by using the U.N. Human Rights Council’s Universal Periodic Review process to press those 72 members on the subject.

As previously noted, the U.S. in the Obama Administration is now a member of the U.N. Human Rights Council, and its participation is credited with helping to increase international scrutiny of human rights abusers.

Other

Under Article 53 of the Rome Statute,  the ICC’s Prosecutor may, in certain circumstances, decline to press charges “in the interests of justice,” and the Office of the Prosecutor (OTP) has issued a policy paper on this provision.

Linda M. Keller, Associate Professor at Thomas Jefferson School of Law in San Diego, recently has explored an ongoing debate over whether the OTP should adopt ex ante guidelines for prosecutorial discretion in order to increase transparency and legitimacy, especially with respect to the “interests of justice” provision. She compared this provision of the Rome Statute with a similar provision in New York and concluded that (1) “requiring a written rationale regarding exercise of discretion does not necessarily yield thorough or convincing explanations, undermining arguments that the legitimacy of the ICC will be enhanced by public explanations of prosecutorial discretion; ” (2)  “such explanations may backfire when the balancing of nebulous factors leads to apparently inconsistent or arbitrary reasoning and results, which may undercut the credibility of the decision-maker;” and (3) “the lack of a guiding theory to drive the interpretation of ambiguous criteria can lead to more confusion than clarity when there is no agreement on the theoretical justifications for prosecution.”

Dr. Kamari Maxine Clarke, Associate Professor of Anthropology at Yale University and a Research Associate at its Law School, also has written about the “interests of justice” provision in May 18 and 19 posts.

ICC Prosecutor Reports About Sudan/Darfur to the U.N. Security Council

U.N. Security Council

 

Prosecutor Moreno-Ocampo

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.

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: 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: Possible U.N. Security Council Referral of Syrian Human Rights Abuses to ICC

As previously mentioned, the International Criminal Court (ICC) has jurisdiction over the crime of genocide, crimes against humanity and war crimes, and one of the ways in which it can obtain jurisdiction over a specific situation is by referral from the U.N. Security Council. [1] The Council already has done so with respect to Sudan (Darfur) and Libya.[2]

Now the U.S. is considering asking the U.N. Security Council to refer possible Syrian human rights abuses to the ICC for investigation and possible prosecution. On June 17th U.S. officials said the possible referral was in reaction to the regime’s killing 1,100 civilians since March and another 20 on Friday.[3]

Russia and China, two other permanent Security Council members with veto power, have expressed opposition to pressuring Syria through the Council. But the U.S. now is pressing Russia to support a Council resolution on Syria.[4]

Earlier in June Syrian opposition and human-rights groups presented the ICC’s Prosecutor with information about alleged crimes against humanity by the Syrian regime. This information had details about attacks on civilians: over 1,100 killings, 3,000 injured and 900 forced disappearances. The report also alleged the regime’s use of torture, snipers, attack helicopters and tanks against civilians. [5]

In May U.S. Ambassador-at-Large for War Crimes, Stephen Rapp, reiterated U.S. support for the ICC. He  mentioned how the U.S. as a non-member was cooperating with the ICC: participating as an observer at meetings of the Court’s Assembly of States Parties, assisting the Court with information-sharing, witness relocation and protection and the arrest and transfer of ICC fugitives. The U.S. also supported the Security Council’s referral of the Libyan situation to the ICC.[6]

[1] See Post: The International Criminal Court: Introduction (April 28, 2011).

[2] See Post: The International Criminal Court: Investigations and Prosecutions (April 28, 2011); Post: The International Criminal Court: Libya Investigation Status (May 8, 2011); Post: The International Criminal Court: Three Libyan Arrest Warrants Sought (May 16, 2011).

[3]  Solomon, U.S. Pushes to Try Syria Regime, Wall S. J. (June 18, 2011); Shanker, War Crimes Charges Weighed as Crisis Continues in Syria, N.Y. Times (June 19, 2011); Reuters, Russia’s Medvedev Opposed to U.N. Vote on Syria: Report, N.Y. Times (June 19, 2011).

[4]  Id.

[5] Id.

[6] Rapp, Where Can the Victims of Atrocities Find Justice? (May 10, 2011), http://www.state.gov/s/wci/us_releases/remarks/165257.htm.

International Criminal Court: ICC Prosecutor Updates U.N. Security Council on Sudan (Darfur)

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).

[3]  U.N. Security Council, 6549th (closed) meeting (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).

The Ridiculous U.S. Designation of Cuba as a “State Sponsor of Terrorism”

The U.S. State Department, pursuant to legislative authority, annually identifies countries that have “repeatedly provided support for acts of international terrorism” and designates them as “state sponsors of terrorism.”[1] The U.S. currently designates the following four countries as “state sponsors of terrorism:” Cuba, Iran, Sudan and Syria.[2] Note that Libya and North Korea, which were previously on the list, are no longer present; these are two stories for others to pursue.

The following is the complete text of the State Department’s rationale for its most recent designation of Cuba:[3]

  • “The Cuban government and official media publicly condemned acts of terrorism by al-Qa’ida and affiliates, while at the same time remaining critical of the U.S. approach to combating international terrorism. Although Cuba no longer supports armed struggle in Latin America and other parts of the world, the Government of Cuba continued to provide physical safe haven and ideological support to members of three terrorist organizations that are designated as Foreign Terrorist Organizations by the United States.”
  • “The Government of Cuba has long assisted members of the Revolutionary Armed Forces of Colombia (FARC), the National Liberation Army of Colombia (ELN), and Spain’s Basque Homeland and Freedom Organization (ETA), some having arrived in Cuba in connection with peace negotiations with the governments of Colombia and Spain. There was no evidence of direct financial support for terrorist organizations by Cuba in 2009, though it continued to provide safe haven to members of the FARC, ELN, and ETA, providing them with living, logistical, and medical support.”
  • “Cuba cooperated with the United States on a limited number of law enforcement matters. However, the Cuban government continued to permit U.S. fugitives to live legally in Cuba. These U.S. fugitives include convicted murderers as well as numerous hijackers. Cuba permitted one such fugitive, hijacker Luis Armando Peña Soltren, to voluntarily depart Cuba; Peña Soltren was arrested upon his arrival in the United States in October.”
  • “Cuba’s Immigration Department refurbished the passenger inspection area at Jose Marti International Airport and provided new software and biometric readers to its Border Guards.”[4]

One of the factual predicates for the designation of Cuba as a “state sponsor of terrorism” is true: FARC, ELN and ETA have been designated “Foreign Terrorist Organizations” by the State Department, and such designations presumably are well founded. But what has Cuba done with respect to these three organizations? It has provided “physical safe haven and ideological support to [an unspecified number of their] members.” How many members? What were the particulars of the safe haven?  We are not told other than “living, logistical, and medical support.” And some of these members, the State Department concedes, were in Cuba to participate in peace negotiations with the governments of Columbia and Spain. Moreover, by the State Department’s own admission, there “was no evidence of direct financial support [by Cuba] for [these three] . . . organizations in 2009.”

Further qualifications to this basis for the designation were made in the State Department’s prior annual antiterrorism report, which said that “on July 6, 2008, former Cuban President Fidel Castro called on the FARC to release the hostages they were holding [in Colombia] without preconditions.”  Fidel  “also had condemned the FARC’s mistreatment of captives and of their abduction of civilian politicians [in Colombia] who had no role in the armed conflict.”[5]

The other factual predicate for the most recent designation, I submit, is outright insufficient. Cuba, the State Department says, has continued to permit an unspecified number of U.S. fugitives (“convicted murderers and numerous hijackers”) to live legally in Cuba. Even if true, it is difficult to see how this is support of terrorism. Moreover, we are not told how many such fugitives there are and the circumstances of their cases. The State Department does not even call them “terrorists.” Again, the State Department’s prior annual antiterrorism report on Cuba provides details further undermining this charge.  It stated, “The Cuban government continued to permit some U.S. fugitives—including members of U.S. militant groups such as the Boricua Popular, or Macheteros, and the Black Liberation Army to live legally in Cuba. In keeping with its public declaration, the [Cuban] government has not provided safe haven to any new U.S. fugitives wanted for terrorism since 2006.”[6]

The balance of the State Department’s most recent “rationale” is, in fact, complimentary of Cuba. “”The Cuban government and official media publicly condemned acts of terrorism by al-Qa’ida and affiliates.” “Cuba no longer supports armed struggle in Latin America and        other parts of the world.” “Cuba cooperated with the United States on a limited number of law enforcement matters.” “Cuba’s Immigration Department refurbished the passenger inspection area at Jose Marti International Airport and provided new software and biometric readers to its Border Guards.” Another complimentary comment was made in the prior annual report:  there is “no evidence of terrorist-related money laundering or terrorist financing activities in Cuba.”[7]

The designation of Cuba as a “state sponsor of terrorism” has been reviewed by the Congressional Research Service, which said in 2006: “Cuba was first designated a state sponsor of terrorism in 1982. Although it has ratified all 12      counterterrorism conventions, it has remained opposed  to the U.S. global war on terrorism. The CIA judged in August 2003 that ‘We have no credible evidence, however, that the Cuban     government has engaged in or directly supported international terrorist operations in the past decade, although our information is insufficient to say beyond a doubt that no collaboration has occurred.'”[8]

Some prior U.S. antiterrorism reports talked about Cuba’s alleged weapons of mass destruction program, but note that there is not any mention of such an alleged program in the most recent report. This canard was also rebutted by the Congressional Research Service: “The Administration’s assertions concerning Cuba’s WMD programs, which some observers dispute, focus on limited biological weapons research and development. Construction at the Juragua nuclear facility (two incomplete Russian nuclear power reactors) was indefinitely postponed in 1997.”[9]

The State Department’s best case for calling Cuba a “state sponsor of terrorism,” upon analysis, is ridiculous. The designation should be rescinded, and the U.S. and Cuba should get down to the real business of engaging in face-to-face, serious negotiations to resolve their many long-accumulated differences.

[1]  Countries determined by the Secretary of State to have repeatedly provided support for acts of international terrorism are designated pursuant to three laws: section 6(j) of the Export Administration Act, section 40 of the Arms Export Control Act, and section 620A of the Foreign Assistance Act. (U.S. State Dep’t, Country Reports on Terrorism 2009 (Aug. 5, 2010), http://www.state.gov/s/ct/rls/crt/2009/index.htm.) Such designation results in the following sanctions by the U.S.: (1) a ban on arms-related exports and sales; (2) controls over exports of dual-use items, requiring 30-day Congressional notification for goods or services that could significantly enhance the terrorist-list country’s military capability or ability to support terrorism; (3) prohibitions on economic assistance; and (4) imposition of miscellaneous financial and other restrictions.

[2]  Id.

[3]  Cuba is the oldest member of the list; it has been on this list since January 1, 1982. Id.

[4]  Id.

[5]  U.S. Dep’t of State, Country Reports on Terrorism 2008, ch. 3 (April 30, 2009), http://www.state.gov/s/ct/rls/crt/2008/122436.htm.

6]  Id.

[7]  Id.

[8] CRS, Globalizing Cooperative Threat Reduction: A Survey of Options (Oct. 5, 2006), http://fpc.state.gov/documents/organization/74901.pdf. See also CRS, Cuba and the State Sponsors of Terrorism List (May 13, 2005), http://www.fas.org/sgp/crs/terror/RL32251.pdf.

[9]  Id.