Thomas Lubanga Dyilo – dwkcommentaries

International Criminal Court: Status of Its Situations and Cases

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.

International Criminal Court: Recent Developments

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

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:

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.
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.
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.
Improve witness protection and investigatory techniques.
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.

International Criminal Court and Victims of Genocide, Crimes Against Humanity and War Crimes

The Rome Statute of the International Criminal Court (ICC) has several unique provisions for victims. First, victims may participate in cases before the Court. Second, victims are entitled to reparations from those convicted by the Court, and the Court has a fund and procedures for victims to obtain reparations from the Court itself.

Victims’ Participation in Proceedings

Under the Statute’s Article 68(3), the Court “shall permit [victims’] views and concerns to be presented and considered at [various] stages of the proceedings . . .and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.” In doing so, the Court, under Article 68(1), “shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses . . . [having] regard to all relevant factors, including age, gender . . . and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children.”

To carry out these provisions, the Court has created the Office of Public Counsel for Victims that seeks to ensure effective participation of victims in the proceedings before the Court by providing legal support and assistance to the legal representatives of victims and to victims. Members of the Office also may be appointed as legal representatives of victims, providing their services free of charge.

Victims’ Right to Reparations

Article 75(1)-(2) of the Rome Statute provides that the Court “shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation” and “may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation.”

Pursuant to that provision, the Court’s Assembly of States Parties has adopted Rules of Procedure and Evidence. Its Rule 97 (1) provides that the Court ” may award reparations on an individualized basis or, where it deems it appropriate, on a collective basis or both” in light of ” the scope and extent of any damage, loss or injury.” In addition, Rule 97(2) allows the Court to ” appoint appropriate experts to assist it in determining the scope, extent of any damage, loss and injury to, or in respect of victims and to suggest various options concerning the appropriate types and modalities of reparations.

To assist in the reparations effort, the Statute’s Article 79(1) directs the Court’s Assembly of States Parties to establish a Trust Fund “for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims.”

Such a trust fund (Trust Fund for Victims (TFV)) has been created, the first of its kind in the global movement to end impunity and promote justice. The TFV addresses and responds to the physical, psychological, or material needs of the most vulnerable victims. It raises public awareness and mobilizes people, ideas and resources. It funds innovative projects through intermediaries to relieve the suffering of the often forgotten survivors. The TFV, for example, is providing a broad range of support in northern Uganda and the Democratic Republic of Congo – including access to reproductive health services, vocational training, trauma-based counseling, reconciliation workshops, reconstructive surgery and more – to over 80,000 victims of crimes under the ICC’s jurisdiction.

In light of the conviction of Thomas Lubanga Dyilo, the TFV Board of Directors recently decided to increase the Fund to 1.2 million Euros. The Board also called upon the Court and States Parties to intensify efforts to identify and freeze assets of persons accused before the ICC, for the eventual purpose of financing Court-ordered reparations.

International Criminal Court: Other Recent Developments

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

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

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

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

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

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

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

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

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

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

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

The reaction to this decision in Kenya is reviewed elsewhere.

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

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

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

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

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

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

Conclusion

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

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

International Criminal Court’s First Conviction

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

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

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

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

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

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

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