Apr
09

International Criminal Court CLE in Minneapolis, April 18, 2012

John L. Fossum, along with former U.S. Ambassdor Robert Flaten, United States District Court Judge John Tunheim, Assistant United States Attorney John Docherty and Professor Barbara Frey of the Human Rights Program at the Institute for Global Studies at the University of Minnesota.  Details of the program, registration information, and bios of the speakers are available here.

Topics include the genocide in Rwanda, the International Criminal Court, a History of International Criminal Law, the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda.  Speakers will also be addressing war crimes, crimes against humanity and genocide generally.

Mar
14

Lubanga Found Guilty

By Jvhertum (Own work) [Public domain], via Wikimedia Commons

Schevenigen Prison in the Netherlands where ICC prisoners spend pretrial detention.


Trial Chamber I of the International Criminal Court (ICC) today announced a guilty verdict for Thomas Lubanga Dyillo in his war crimes trial in The Hague.  Lubanga was accused of recruiting and conscripting child soldiers as the leader of the Union of Congolese Patriots, (UPC) in the Democratic Republic of Congo (DRC).

According to the Lubanga Trial blog:

The ICC judges ruled that the prosecution proved beyond reasonable doubt that Lubanga is guilty of the crimes charged. Judge Adrian Fulford, Presiding Judge of the Trial Chamber, in delivering the verdict said that there was reasonable evidence to believe that Lubanga was involved in a recruitment drive for his UPC rebel group and that such drive included conscripting children and using them for combat purposes. The judges also found that Lubanga personally used children as his bodyguards.

Lubanga was the first accused brought into the custody of court. Lubanga was brought to the court in May of 2006, his trial began in January 2009.  The defense began presenting its case in January 2010.  The case was stopped in 2009 to consider the addition of charges at the request of victims, and for other reasons throughout the trial, failure to disclose evidence by the prosecution, transcription and translation errors, and other issues.  The case was submitted to the court after closing arguments in August 2011.

At one point, the trial chamber ordered Lubanga released, finding that he could not have a fair trial because of the failure of the prosecution to disclose evidence and comply with court orders.  That decision was overturned by the appeals chamber and the trial resumed.

The defense has a right to appeal the verdict to the appeals chamber.  Now that there is a verdict, the court may also begin the reparations phase and determine the appropriate amount and form of reparations to the victims recognized and allowed to participate in the case.

Jan
25

ICC Confirms Charges Against Four of the “Ocampo Six”

A pre-trial chamber of the International Criminal Court (ICC) announced it’s decision this week confirming the charges against four of the six persons indicted for crimes against humanity in post election violence in Kenya.

The case has had some unusual turns.  Kenya originally supported the investigation, but when government officials were indicted, argued the case should go back to Kenya for investigation and charges. The court decided that the cases should go forward, and that Kenya did not have the infrastructure or means to ensure fair trials.

At the confirmation of charges hearing, one accused, Uhuru Kenyatta, took the unusual step of testifying in his defense. His testimony apparently did not convince the judges to dismiss the charges, as his case was continued for trial.

The four whose charges were confirmed are: Deputy Prime Minister Uhuru Muigai Kenyatta; Head of Public Service Francis Kirimi Muthaura; former Cabinet Minister William Samoei Ruto; and radio journalist Joshua arap Sang.

Dismissed from the cases were: former police commissioner Maj. Gen. Mohammed Hussein Ali, and former Minister of Industrialization Henry Kiprono Kosgey.  In many African media outlets, the six indictees have been referred to as the “Ocampo Six” a reference to Luis Moreno-Ocampo, prosecutor of the ICC.

Judge Hans Peter Kaul dissented from the decision, arguing that the cases do not belong at the ICC and do not come under the jurisdiction of the statute.  He said this in the Ruto, Kosgey and Sang case:

I am unable to accept this decision of the Majority and the analysis that
underpins it. I continue to believe that the International Criminal Court (the
“ICC” or the “Court”) lacks jurisdiction ratione materiae in the situation in the
Republic of Kenya, including in the present case. Contrary to the Majority’s
findings, I am not satisfied that the crimes, for which Mr Ruto and Mr Sang are
held accountable pursuant to articles 25(3)(a) and 25(3)(d) of the Rome Statute
(the “Statute”) respectively, occurred pursuant to or in furtherance of a policy of
an organization within the meaning of article 7(2)(a) of the Statute. Thus, I am not
satisfied that the crimes charged constitute crimes against humanity as set out in
article 7 of the Statute.

…

That said, and while I do not question that abhorrent crimes, as described in
the amended document containing the charges, have been committed, my doubts
pertain to their correct qualification. Consequently, my principled disagreement
with the Majority centres on the question of whether the ICC is the right forum
before which to investigate and prosecute those crimes.

Judge Kaul made similar points in his dissent in the case against Keyatta, Muthaura and Ali, questioning not just admissibility, but whether or not the actions of “the Mungiki gang” constitute the actions of “an organization” within the meaning of the Statute.  Judge Kaul argues that finding such a gang responsible for crimes against humanity leaves the court open to the obligation of prosecuting organized crime world wide.

Judge Kaul’s dissents raise many interesting points, about the thoroughness of the review at a confirmation of charges hearing, the defense right to present a defense at such a hearing, the defense right to challenge admissibility, the prosecution’s duty to investigate exculpatory information, and the presumptions of the court in determining whether or not to confirm charges.  How the court addresses those criticisms may well shape it going forward.

The court uses an escalating standard of review, reasonable cause to indict, probable cause to confirm the charges, and proof beyond a reasonable doubt to convict at trial.

 

Dec
17

Mbarushimana Case Dismissed at Confirmation of Charges Hearing

The pre-trial chamber of the International Criminal Court (ICC) hearing the case against Callixte Mbarushimana has dismissed the charges, finding the prosecution did not establish probable cause to hold Mbarushimana for trial. The case against Mbarushimana, previously detailed here, claimed that he, as the Executive Secretary of the Democratic Forces for the Liberation of Rwanda, (FDLR) directed, and had command responsibility for six counts of war crimes and five counts of crimes against humanity in the Democratic Republic of Congo (DRC). At the time of his arrest, the Office of the Prosecutor (OTP) detailed the charges this way:

[T}he OTP alleges that Mr. Callixte
MBARUSHIMANA is responsible for the war
crimes of (1) attacks against the civilian
population; (2) destruction of property; (3)
murders or willful killings; (4) rape; (5)
inhuman treatment; and (6) torture, and the
crimes against humanity of (1) murders; (2)
torture; (3) rape; (4) inhumane acts; and (5)
persecution.

The court offered the following explanation in its press release on the order, the 215 page order is available here:

Today, 16 December 2011, Pre-Trial Chamber I of the International Criminal Court (ICC) decided by Majority, the Presiding Judge Sanji M. Monageng dissenting, to decline to confirm the charges in the case of The Prosecutor v. Callixte Mbarushimana and to release Mr Mbarushimana from the custody of the Court, on the completion of the necessary arrangements.

The Majority of the Chamber, comprising Judge Sylvia Steiner and Judge Cuno Tarfusser, found that there was not sufficient evidence to establish substantial grounds to believe that Callixte Mbarushimana could be held criminally responsible, under article 25(3)(d) of the Rome Statute, for the eight counts of war crimes and five counts of crimes against humanity brought against him by the Prosecutor.

This decision does not preclude the Prosecutor from subsequently requesting the confirmation of the charges against Callixte Mbarushimana if such request is supported by additional evidence. Both the Prosecutor and the Defense may also appeal the decision declining to confirm the charges and the order for the release of Mr Mbarushimana.

Factual findings

On the basis of the evidence presented, the Chamber found that there are substantial grounds to believe that, from at least 20 January 2009 until at least 31 December 2009, an armed conflict not of an international character took place in the North and South Kivus, in the Democratic Republic of Congo (DRC), between the forces of the Government of the DRC, supported at times by Rwandese forces (RDF) or the forces of the United Nations Mission in the Democratic Republic of Congo, on the one side, and at least one organised armed group, the Forces Démocratiques pour la Libération du Rwanda – Forces Combattantes Abacunguzi (FDLR), on the other.

The Chamber found substantial grounds to believe that FDLR troops committed several war crimes in different locations and at different times, particularly in Busurungi and surrounding villages in March 2009 (murder) as well as on or about 9 to 12 May 2009 (attacking civilians, murder, mutilation, rape, cruel treatment, destruction of property and pillaging); in Manje on or about 20 July 2009 (attacking civilians, murder, cruel treatment and destruction of property); in Malembe on or about 11 to 16 August 2009 (attacking civilians and destruction of property), and in Mianga on or about 12 April 2009 (attacking civilians, murder and destruction of property).

Although the Chamber found substantial grounds to believe that acts amounting to war crimes were perpetrated in five out of the twenty-five occasions identified by the Prosecutor, the Majority found that the evidence submitted was insufficient to be convinced of the existence of substantial grounds to believe that such acts were part of a course of conduct amounting to “an attack directed against the civilian population” pursuant to or in furtherance of an organisational policy to commit such attack, within the meaning of article 7 of the Rome Statute which defines crimes against humanity. Accordingly, the Majority found that there were not substantial grounds to believe that crimes against humanity were committed by the FDLR troops.

The Majority of the Chamber, with the Presiding Judge dissenting, further found that Callixte Mbarushimana did not provide any contribution to the commission of the alleged crimes, even less a “significant” one.

Background

The DRC ratified the Rome Statute, the founding instrument of the International Criminal Court, on 11 April 2002. On 3 March 2004, the Government of the DRC referred to the Court the situation (the events falling under the Court’s jurisdiction) in its territory since the entry into force of the Rome Statute on 1 July 2002. After a preliminary examination, the Prosecutor initiated an investigation on 21 June 2004.

On 28 September 2010, Pre-Trial Chamber I issued a warrant of arrest under seal for Mr Mbarushimana. The warrant was unsealed on 11 October 2010. On 25 January 2011, the French authorities surrendered Mr Mbarushumana to the Court. He was then transferred to the Court’s Detention Centre in The Hague. In the Document Containing the Charges, the Prosecutor charged Mr Mbarushimana with five counts of crimes against humanity (murder, inhumane acts, rape, torture, and persecution) and eight counts of war crimes (attacking civilians, murder, mutilation, cruel treatment, rape, torture, destruction of property and pillaging). The Confirmation of Charges hearing was held from 16 to21 September 2011.

Besides Callixte Mbarushimana, three persons have been transferred to the Court with respect to the situation in the DRC: Thomas Lubanga Dyilo, Germain Katanga and Mathieu Ngudjolo Chui. A warrant of arrest has also been issued against a forth (sic) person, Bosco Ntaganda, but has yet to be executed.

Investigations are ongoing with respect to the situation in the DRC

This is the second time a pre-trial chamber has declined to confirm the charges against an accused, the first was the case against Bahar Idriss Abu Garda, who had his case dismissed in February 2010.  The prosecution may appeal the court’s determination to not confirm the charges, and is expected to do so. The appeals chamber confirmed the dismissal in Abu Garda’s case.

Dec
06

Vanuatu Ratifies ICC Treaty

Green Countries Are the Member States of the International Criminal Court

Green are the State's Parties of the ICC, Gold represents the states that have signed the treaty but not ratified it.

Vanuatu has now ratified the International Criminal Court (ICC) Treaty, becoming the 120th nation to acceded to ICC jurisdiction. The ICC has jurisdiction to prosecute war crime, crimes against humanity and genocide which occurs within the territory of the nations which have ratified the treaty, or committed by nationals of those nations, or when referred to court by the United Nations Security Council.

The court has ongoing prosecutions in the Democratic Republic of Congo, the Central African Republic, the Darfur region of Sudan, Ivory Coast, and involving post election violence in Kenya.  There are also indictments from Uganda, though none of indictees, all members of the Lord’s Resistance Army have appeared before the court.  The court has also issued indictments from Libya, upon referral of the Security Council, though one of the indictees, Muammar Qadafi was killed, and the other two are currently in custody in Libya, and may not be transferred to the court.  The past president of Ivory Coast, Laurent Gbagbo has made his first appearance in the court this week, though Ivory Coast is not a signatory to the treaty, it has accepted ICC jurisdiction.

 

 

Oct
25

Cape Verde Becomes the 119th Nation to Ratify the ICC Treaty

Cape Verde became the 119th nation to ratify the Rome Statute, the founding document of the International Criminal Court (ICC).  The ICC is based in The Hague, Netherlands.  The nations that have ratified the treaty have allowed the ICC to investigate claims of war crimes, crimes against humanity or genocide occurring within their territory, or by their citizens when national authorities cannot or will not pursue charges.

The United Nations Security Council may also refer cases to the ICC, as it has in Darfur, Sudan, and in Libya. The President of Sudan, Omar Al-Bashir has been indicted by the ICC.  He was the first head of state to be indicted by an international tribunal.  Muammar Qadaffi, president of Libya was also indicted by the court, but was killed by rebels.

The nations who have signed on to the treaty, called the Association of State’s Parties, control the rules of procedure and fund the court. China, the United States, Sudan, and Russia, are among the nations which have not signed on to the treaty.

Oct
06

Kenyatta Testifies at Confirmation of Charges Hearing

Kenya’s Deputy Prime Minister, Uhuru Kenyatta,  testified in his defense in the Kenya case at the International Criminal Court (ICC) in The Hague.  Kenyatta is one of the six indicted by the ICC for crimes against humanity in the post-election violence of 2007.  They are known in Kenya as the Ocampo six, meaning the six indicted by the prosecutor of the ICC, Luis Moreno-Ocampo.

The case has had a bit of a history, first Kenya supported the idea of the ICC taking on the case, suggesting their institutions could not handle it, then arguing that with new laws, Kenya could take the cases and there was no need for the ICC to handle them.  So far, the court has determined that the cases remain admissible, meaning within the jurisdiction of the court.

This may become a case which clarifies the doctrine of Complementarity.  Complementarity is an important safeguard of sovereignty, and at least one one reason that 118 nations have now ratified the treaty.  The court may investigate and prosecute cases only if prosecution cannot or will not occur at a national level.

The Kenya case is at a confirmation of charges stage, similar to a probable cause hearing.  The court is to determine uses escalating standards of proof: “reasonable grounds to believe” at the warrant stage, “substantial grounds to believe” at the confirmation of charges stage and “beyond reasonable doubt” for a conviction at trial. The court must now determine if there are substantial grounds to believe the accused committed crimes within the jurisdiction of the court. It is unusual for an accused to testify at this stage, a summary of Kenyatta’s testimony is available here.  He is the first person to testify in his own defense at an ICC confirmation of charges hearing. Video of his testimony is available here.

The defense has also raised the question of admissibility, arguing the case does not belong at the ICC.

 

 

Sep
26

What is Left of the Victims Right to Select Counsel?

Trial Chamber IV of the International Criminal Court, ICC, recently ordered that in the Sudan case currently moving towards trial, two lawyers will be representing all victims at the court.  The case, against alleged rebel leaders Abdallah Banda Aadaker Nourain and Saleh Mohammed Jerbo Jamus, is proceeding to trial on the following charges:

  • violence to life, whether committed or attempted, within the meaning of article 8(2)(c)(i) of the Statute;
  • intentionally directing attacks against personnel, installations, material, units or vehicles involved in a peacekeeping mission within the meaning of article 8(2)(e)(iii) of the Statute; and
  • pillaging within the meaning of article 8(2)(e)(v) of the Statute.

The court had previously confirmed the charges, a proceeding roughly equivalent to a probable cause hearing.  The question now, is can two lawyers adequately represent the victims in the case?  A question previously pondered here.   The court in the Bemba case, which has by far the largest number of victims, over 1,600 so far, started the trend by ordering two lawyers from the Central African Republic should be appointed as counsel.

Article 75 of the Rome Statute gave victims a right to seek reparations:

Article 75
Reparations to victims
1. The Court shall establish principles relating to reparations to, or in respect of, victims,
including restitution, compensation and rehabilitation. On this basis, in its decision
the Court may, either upon request or on its own motion in exceptional circumstances,
determine the scope and extent of any damage, loss and injury to, or in respect of,
victims and will state the principles on which it is acting.
2. The Court may make an order directly against a convicted person specifying
appropriate reparations to, or in respect of, victims, including restitution,
compensation and rehabilitation.
Where appropriate, the Court may order that the award for reparations be made
through the Trust Fund provided for in article 79.
3. Before making an order under this article, the Court may invite and shall take account
of representations from or on behalf of the convicted person, victims, other interested
persons or interested States.
4. In exercising its power under this article, the Court may, after a person is convicted of
a crime within the jurisdiction of the Court, determine whether, in order to give effect
to an order which it may make under this article, it is necessary to seek measures
under article 93, paragraph 1.
5. A State Party shall give effect to a decision under this article as if the provisions of
article 109 were applicable to this article.
6. Nothing in this article shall be interpreted as prejudicing the rights of victims under
national or international law.

Article 68, Paragraph 3 gives the victims a right to participate and to counsel during the proceedings:

Where the personal interests of the victims are affected, the Court shall permit their
views and concerns to be presented and considered at stages of the proceedings
determined to be appropriate by the Court and in a manner which is not prejudicial to or
inconsistent with the rights of the accused and a fair and impartial trial. Such views and
concerns may be presented by the legal representatives of the victims where the Court
considers it appropriate, in accordance with the Rules of Procedure and Evidence.

The ongoing question to be resolved will be, does the court’s practice of appointing very few lawyers prejudice that right?  Will the lawyers who undertake the responsibility be given the resources and opportunities to maintain proper contact with their clients?

The ICC, based in The Hague, Netherlands, has jurisdiction in the 118 nations that have signed on to the Treaty of Rome, or over their citizens, or in case referred to it by the U.N. Security Council, so far Libya and Darfur.  The court investigates charges of war crimes, crimes against humanity, and genocide occurring within its jurisdiction since the founding of the court which was in 2002.

Sep
22

Maldives Ratifies the ICC Treaty

The Maldives this week became the 118th nation to ratify the Rome Statute.   The Rome Statute is the founding document of the International Criminal Court and the countries that have ratified it subject their citizens to potential prosecution at the court for war crimes, crimes against humanity, and genocide, if the acts are not capable of being prosecuted in national jurisdictions.

The International Criminal Court, based in The Hague, The Netherlands, is funded by the nations which have ratified the treaty, called the Assembly of State’s Parties.  Currently, all the situations before the court are in Africa.  The court is prosecuting cases in Kenya, the Darfur region of Sudan, Central African Republic, Uganda,  and The Democratic Republic of Congo.

Aug
31

Philippines Ratifies the Rome Statute

This week The Philippines became the 117th nation to ratify the Rome Statute and submit its citizens and politicians to the jurisdiction of the International Criminal Court (ICC). The nation offered the following official statement:

“The Philippines, a democracy that champions international law and the rule of law, views being party to the Rome Statute of the ICC as a vital part of the on-going global campaign to end impunity and violence against individuals and to further strengthen a rules-based international system, specifically in relation to international human rights law and humanitarian law,” Philippine Permanent Representative Ambassador Libran Cabactulan said.

“It is a clear signal of the importance with which the Philippines places to this treaty,” he added.

Ambassador Cabactulan further elaborated that, “The ICC also serves as a deterrent against genocide and other heinous crimes and ensures that all perpetrators of these serious crimes of concern are held accountable.

The ICC sits in The Hague, The Netherlands and has jurisdiction to investigate and prosecute war crimes, crimes against humanity and genocide within the territory of the 117 nations that have ratified the treaty, or by their citizens, or when the United Nations Security Council refers a situation to the ICC for investigation.  So far, the Security Council has referred the situation in Darfur, Sudan and in Libya.  In response the prosecutor has sought, and obtained, warrants for the arrest of two heads of state, Muammar Qadafi of Libya, and Omar Al Bashir, President of Sudan.

State’s Parties to the Rome Statute are, among other things charged with enforcing the court’s warrants.  Should those with outstanding warrants appear on their territory, those 117 nations are expected to effect the arrest.

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