Aug
29

Will Muammar Qadafi Appear at the ICC?

When the United Nations referred the situation in Libya to the International Criminal Court (ICC) in February, there seemed to be a theory that it would reduce the violence with which the regime responded, and that it would deter others from responding to uprisings with force.  Neither has quite happened, and now there seems to be a growing movement to ignore the ICC indictment and let Libya determine the appropriate resolution for Qadafi.  Since rebels took control of Tripoli, it has been reported that a bounty of $2 million has been placed on the “arrest or death” of Qadafi, along with amnesty for the claimant.

In July, the ICC issued arrest warrants for Qadafi, his son Saif, and the country’s intelligence chief.  British Prime Minister David Cameron recently appeared to voice support for a Libyan process rather than the ICC process.  This led to at least one commentator to argue to the contrary.  According to lawyer Geoffrey Robertson:

It is too much to expect that Gaddafi can receive justice at the hands of those whom he has repressed for so long, in a corrupt judicial system that he controlled (and so could not be considered “judicial” in any real sense). It must now be reconstructed from scratch, with new judges independent of the National Transitional Council. That gimcrack organisation’s UN spokesman said that it wants to organise Gaddafi’s trial, but it is plainly unable to secure an unbiased legal process when he does fall into its hands. The bounty on his head seems to confirm the NTC’s preference for Gaddafi’s summary execution.

There is a more important reason of principle why the fate of the Gaddafis must not be left to the Libyans. The colonel is charged with crimes against humanity – the mass murder of civilians by perpetrating offences so barbaric that the very fact that a fellow human being can commit them demeans us all. Ordering the massacre of 1,200 captives in a prison compound, blowing 270 people out of the sky over Lockerbie, and almost as many in a UTA passenger jet over Chad a few months later – these are merely the most egregious examples of international crimes committed by the worst man left in the world. It is essential, therefore, that Gaddafi face real justice in The Hague and not revenge in Benghazi.

This is a bit of overstatement, given that the mandate from the U.N. Security Council was only to investigate crimes against humanity, war crimes occurring since February, 2011.  Other commentators have questioned whether the ICC has the tools and credibility to carry out the investigation and prosecution, with all the cases going on, the lead prosecutor leaving at the end of his term next year.

Whatever the resolution of the Libya cases, whether or not they wind up in The Hague will be a key test of the credibility of the ICC.  Can the ICC truly be an institution of international justice or will it be a threat rarely fulfilled?

Jul
18

Are Victims Getting Short Shrift at the ICC?

Radio Netherlands reports that an NGO, REDRESS, believes the court is not focusing enough resources on the needs of victims. The REDRESS statement is available here. According to REDRESS:

Registry officials at the ICC have warned judges that they can’t
process the paperwork to enable victims to take part in crucial Court hearings, because they
simply have too few staff.

Earlier this month (4th July), Trial Chamber I ruled that hundreds of pending applications
from victims wanting to participate in the Callixte Mbarushimana confirmation of charges
hearing would be left out, because the Registry could not meet the deadline to process the
applications that had been set by the Court.

This decision will deny 470 victims who potentially qualify to participate in the case, a voice
during the confirmation of charges hearing, due to take place on 17 August 2011. This is
significant for victims who often perceive the Court as a remote institution and see the
confirmation of charges hearing as the first opportunity for their lawyers to make a
statement on their behalf.

The statement also offers the following comment:

“Victims are paying the price for the failure to properly resource the Registry. Victim participation is one of the most innovative features of the ICC, designed to involve in the justice process those most affected by crimes. Now, victims are finally coming forward to engage with the Court but the Court is not ready or capable to deal with them. If this resource issue is not resolved, victim participation will become a meaningless paper promise,” says Carla Ferstman, REDRESS’ Director.

The statement continued:

Mbarushimana is not the only case affected. In the Ruto case (Kenya) the Registry indicated
that it would only be able to process 400 out of 1800 applications. In the Muthaura case
(Kenya), the Registry also stressed that it would not be able to process all of the applications
from victims. So far, almost 2,000 victims are affected but the problem is likely to worsen in
the resource issue is not addressed.
The Court is finalising its Budget for 2012 which will soon be discussed with States that are
party to the Rome Statute, who are expected to pay. Despite the fact that the Court is now
working on many new investigations, including from Libya, Cote D’Ivoire and Kenya, some
States have been insisting on a ‘zero-growth’ budget from the previous year.
“States have recognised the importance of the Court by continuing to refer it new cases, but
have not matched this with adequate financial support. While recognising the financial
constraints on many States, why create a Court then prevent it from fulfilling its mandate?
Excluding victims from being involved in Court hearings is just another way to say they don’t
matter. This is the wrong signal to send to victims and affected communities.”

This is not the first time the court’s commitment to victim’s issues has been questioned.  Previously, in the Jean-Pierre Bemba Gombo case, the court ordered that all recognized victims were to be represented by two lawyers.  Bemba has the largest number of participating victims,  1620 so far.  It is not clear how the two lawyers have an opportunity to establish a relationship with, or adequately represent, all the victims. Recently the Victims section has similarly solicited counsel to apply to be common legal representatives for all the victims in forthcoming Sudan and Kenya cases.

Victim participation in the proceedings is described in Article 68 (3) of the Rome Statute:

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 question raised by both the Bemba order and the REDRESS statement is how the court will meet those obligations.  Do the current measures and increasing consolidation of representation adequately safeguard the victim’s interests?  What procedures and funds are in place to allow the counsel to adequately represent hundreds or thousands of victims?  Can any one or two lawyers adequately perform that function?

Victims have a right to offer their observations and arguments on motions before the court, offer some evidence and question witnesses.  Victims may also seek reparations from the court if a conviction is entered.  The exact form of those reparations is not yet known.  The first case, against Thomas Lubanga began in 2009 and is not yet completed.

The International Criminal Court sits in The Hague, The Netherlands.  It is a permanent court intended to punish War Crimes, Crimes Against Humanity or Genocide occurring within the 115 nations that have ratified the Rome Statute, or situations referred to the court by the United Nations Security Council, as has happened in Darfur, Sudan, and Libya.  Ivory Coast has also accepted the jurisdiction of the court for crimes occurring in Post-Election violence, even though it is not a signatory to the treaty.

Jun
17

Office of the Prosecutor Announces Ivory Coast Investigation

The International Criminal Court (ICC), Office of the Prosecutor (OTP) announced today the opening of an investigation into post-election violence in Ivory Coast.  The ICC, located in The Hague, The Netherlands, has authority to prosecute war crimes, crimes against humanity, and genocide occurring in nations that have signed on to the treaty creating the court, or if referred by the Security Council of the United Nations, or when, as in Ivory Coast, the country has accepted jurisdiction, even though they are not a member state.

The notice states, in part:

By this notice, the Prosecutor of the International Criminal Court informs victims of alleged war crimes and crimes against humanity committed in Côte d’Ivoire by any party following the presidential election of 28 November 2010 that he will shortly request authorization from the Pre-Trial Chamber II to open an investigation into such alleged crimes.

The Prosecutor notifies victims of the post-election violence in Côte d’Ivoire that they can send their comments to the Judges of the Pre-Trial Chamber II on whether an investigation on such alleged crimes should be opened. The victims or their legal representatives have 30 days from this notice to make representations to the Pre-Trial Chamber.

Victims who wish to make observations and are seeking to do so are encouraged to contact the Reparations Center for assistance.  The Reparations Center and attorney John L. Fossum are interested in providing assistance to those seeking to participate, share their information or seek reparations.  There is no fee for this service.

Victims have an opportunity at the ICC to participate in ongoing cases by making arguments, presenting evidence, and ultimately seek reparations if there is a conviction.  Reparations and the process are funded by the 114 nations that have ratified the Treaty of Rome, now known as the Rome Statute, the founding document of the International Criminal Court.

 

Jun
06

Katanga Witnesses Testify, then Seek Asylum

Three witnesses who testified for the defense in the International Criminal Court (ICC) cases against Germain Katanga and Matthieu Ngdolo Chui sought asylum in The Netherlands after their testimony.

According to the Katanga trial website,  the witnesses testified that the government of the Democratic Republic of Congo (DRC) was responsible for the Bogoro attack, one of the allegations against the accused.  The case raises difficult questions for the ICC and its obligations to protect witnesses.   The three claim that by testifying against the government of the DRC they have put themselves at risk, and cannot safely return to the DRC.  They have asked the court to keep them in The Netherlands until Dutch authorities rule on the asylum requests.

The court has an obligation to protect witnesses, but cannot provide asylum.  Returning the witnesses to the DRC if they would be harmed would clearly not be in keeping with the court’s obligation to protect witnesses, but there is a limit to how long the court could hold them in custody, and it has no place to put them that is not custody.

The registry and its Victim and Witnesses Unit is trying to determine whether the safety of the witnesses can be adequately guaranteed with a return to the DRC.  The witnesses were in DRC custody when brought to The Hague.  The question to be resolved is whether or not returning them to DRC custody puts them at greater risk.

The case against Katanga and Chui is the second ICC case to go to trial.  Katanga and Chui are accused of war crimes and crimes against humanity. Katanga is alleged to have been the commander of the Patriotic Resistance Force of Ituri, (FRPI) and Chui is alleged to have been the leader of the Nationalist Front of Integrationists (FNI) both fighting against the government of the DRC.

The indictment alleges that Germain Katanga and Mathieu Ngudjolo Chui allegedly jointly committed through other persons, within the meaning of article 25(3)(a) of the Statute:

War crimes:

  1. using children under the age of fifteen to take active part in the hostilities, under article 8(2)(b)(xxvi) of the Statute;
  2. directing an attack against a civilian population as such or against individual civilians not taking direct part in hostilities under article 8(2)(b)(i) of the Statute;
  3. wilful killings under article 8(2)(a)(i) of the Statute;
  4. destruction of property under article 8(2)(b)(xiii) of the Statute;
  5. pillaging under article 8(2)(b)(xvi) of the Statute;
  6. sexual slavery under article 8(2)(b)(xxii) of the Statute.
  7. rape under article 8(2)(b)(xxii) of the Statute

Crimes against Humanity:

  1. murder under article 7(1)(a) of the Statute;
  2. rape under article 7(1)(g) of the Statute.
  3. sexual slavery under article 7(1)(g) of the Statute.

The trial began in November, 2009. The defense began presenting its case in April of 2011.

 

Jun
01

Kenya Cases Remain Admissible

The International Criminal Court (ICC) has overruled the objections of Kenya and found that the post-election violence cases remain admissible (within the jurisdiction of the court).  A detailed discussion of the ruling, and the case, is available here.  Kenya has announced that it plans to appeal.

The ruling is a significant test of the issue of complementarity. A founding principle of the court, complementarity means that the court can only pursue cases that are not capable of, or were not adequately pursued in national courts.  Kenya had initially cooperated with the investigation, but then argued the cases were now capable of being resolved in national courts.

The court found that the Government of Kenya had not shown that there were open cases involving the six officials detained by the court.  Rather the government argued that there had been reforms in its judicial system and the cases could proceed.  The court determined that in the absence of actual open prosecutions of the six accused:

… the Chamber considers that there remains a situation of inactivity. Consequently, the
Chamber cannot but determine that the case is admissible following a plain reading
of the first half of article 17(l)(a) of the Statute. It follows that there is no need to
delve into an examination of unwillingness or inability of the State, in accordance
with article 17(2) and (3) of the Statute.

The argument over inadmissibility will likely remain ongoing as the case proceeds.

May
27

ICC Opens Ivory Coast Probe

The International Criminal Court (ICC) announced this week that the prosecutor has opened an investigation into the recent post election violence in Ivory Coast.  Pre-Trial Chamber II has been assigned to oversee the investigation.  Although Ivory Coast has not ratified the Rome Statute and is not a state party, it  accepted the court’s jurisdiction in April of 2003, and again this year.

According to the press release, the prosecutor has determined that crimes within the jurisdiction of the court, meaning war crimes, crimes against humanity or acts of genocide, have occurred in Ivory Coast since November of 2010.  The decision is available here. The prosecution’s request to open a case is available here.

May
21

Grenada Ratifies Rome Treaty

The Caribbean Island of Grenada has joined the International Criminal Court by becoming the 115th nation to ratify the treaty and submit itself to court jurisdiction.

The court has jurisdiction over war crimes, crimes against humanity, and genocide which occur in, or are caused by the citizens of the 115 countries which have ratified the treaty, if there is no national investigation or prosecution.  The court may also be directed to investigate a situation by the U.N. Security Council as it was in Libya and Sudan.  The 115 state parties to the treaty direct the funding of the court and control its rules of procedure.  The countries meet as the Association of State Parties to review the progress and direction of the court.

Apr
21

Lubanga Trial Closes Evidence Phase

Trial Chamber I of the International Criminal Court (ICC) in The Hague, Netherlands, has declared a closed the evidentiary phase of the trial of Thomas Lubanga Dyilo. The court had previously announced the schedule for closing arguments, previously discussed here, which Judge Adrian Fulford announced will not be changed. “The clock has started ticking and nothing save an earthquake will stop it,” The Lubangatrial.org blog reports him as saying.

Thomas Lubanga Dyilo is the first person to face the International Criminal Court. He is accused of the war crimes of recruiting, using and conscripting child soldiers.  He was brought to the court in 2006, and his trial began in January of 2009.  The defense began presenting it’s case in January 2010.  The case stopped several times because of the prosecution cross examining witnesses with information that had not been disclosed to the defense.  At one point, the trial chamber issued a stay, finding that Lubanga could not get a fair trial, the appeals chamber reversed, but disclosure of evidence has continued to be an issue. The trial chamber again recently ruled on the disclosure problems and denied another defense request to end the trial because of the disclosure issues.

The questions raised by the ongoing disclosure issues were discussed in part, here.  Ultimately, the attitude and actions of the prosecutor in timely and properly disclosing evidence will determine whether or not an accused may get a fair trial at the court.  That, and the court’s reaction to the prosecution’s failure to comply with rules and court orders will determine the credibility of the court.  The court has been much in the news lately, which has added to American awareness of its existence.  It’s continued existence will require credibility in fair trials for the accused followed fair treatment of the victims in the reparations process when there is a conviction.

 

Apr
13

Lubanga Closing Scheduled

Although testimony is still being taken, Trial Chamber I of the International Criminal Court (ICC) has set out a timetable for the closing arguments in the trial of Thomas Lubanga Dyilo.  The order states that the prosecution and the victims should go first and must make their submissions by June 1, 2011. Although it is common to have simultaneous submissions, the court ordered the prosecution to submit its argument first:

In light of the legal and factual developments since the commencement of the trial, which led, inter alia, to the most recent defence application for a stay of the proceedings based on an abuse of the process by the prosecution, the Chamber is of the view that it is necessary for the Prosecutor to file his written closing statement first. The accused is entitled to know, once the evidence has closed, the legal and factual basis on which the Prosecutor maintains he is guilty. In this particular case, the lack of clearly identified bases could, potentially, result in the defence responding to evidence that is no longer relied on. In the circumstances, the logic underlying Rule 141(2) of the Rules that  establishes the right of the defence to examine witnesses last also applies to these final written submissions. The defence is therefore entitled to file
its closing submissions once the arguments of the prosecution and the legal representatives have been submitted.

The prosecution’s closing argument is to be no more than 250 pages long and the victim’s submissions to be no more than 50 pages long for each team.  The defense has until July 15, 2011 to file a response of up to 300 pages.  The prosecution than can file a response on August 1, the defense has until August 15 to file a rebuttal to the prosecutor argument.  On August 25 and 26 the court will hear oral arguments about the case from the prosecution and defense as well as the victim’s legal teams and the Office of Public Counsel for Victims.

The chamber directed the parties to address the following issues in their closings:

i) Whether there was an armed conflict in Ituri, Democratic Republic of
Congo, between 1 September 2002 and 13 August 2003?
ii) If there was an armed conflict for the purposes of i) above, is there a
nexus between the armed conflict and the alleged crimes?
iii) Was the armed conflict of an international character or not of an
international character, for the purposes of Article 8 of the Statute?

iv) If the Chamber concludes that it was not of an international character,
what factors should be taken into account if the Chamber considers
modifying the legal characterisation of the facts (under Regulation 55)
for the period of early September 2002 to 2 June 2003?
v) What does the prosecution need to establish in this case under Article
25(3)(a) of the Statute?
vi) What is the meaning of the terms “conscripting” or “enlisting”
children under the age of fifteen years into the national armed forces,
into armed forces or armed groups or “using them to actively
participate in hostilities”, for the purposes of Articles 8(2)(b)(xxvi) and
8(2)(e)(vii) and the corresponding Elements of the Crimes?
vii) What does the prosecution need to establish under Article 30 of the
Statute, bearing in mind Article 8(2)(b)(xxvi)(3) and Article
8(2)(e)(vii)(3) of the Elements of Crimes?

Apparent in the order is the concern that the court has not resolved for itself whether the discovery violations which were complained about recently, stopped the trial last summer, and have been at issue a number of times in the case, have deprived Lubanga of a fair trial.

Lubanga is the first person to face trial in the ICC.  He was brought to The Hague in 2006, his trial began in January 2009, the defense case began in January 2010.  He is accused of war crimes including conscripting and using child soldiers as leader of the Union of Congolese Patriots in the Democratic Republic of Congo.

At the ICC, victims are allowed to participate to a limited extent in the trial, including motions and commenting on evidence.  The victims may also seek an order for reparations from the court if there is a conviction.

Apr
09

Lubanga Aide Testifies that Lubanga Would Not Use Child Soldiers

Thomas Lubanga Dyilo’s personal secretary testified at the International Criminal Court (ICC) in The Hague, Netherlands,  this week that Lubanga would never have approved the use or recruitment of child soldiers.  The aide, Michel Angayika Baba, testified that he never saw minors in Lubanga’s bodyguard or entourage.  This is consistent with the testimony of an earlier witness for Lubanga.

Also this week the defense again complained about late disclosure of documents.  Failure to provide disclosures has been an ongoing issue in the case,  once stopping the trial, and the subject of repeated orders by the court. The prosecution offered three documents this week, which the defense argued should have been disclosed earlier.  The prosecution said one of the documents was simply a cleaner copy of an earlier document, two more “became relevant” because of the testimony of  a defense witness.  The prosecution’s determination of what is and what is not relevant and necessary to disclose had led the trial chamber to find last year that Lubanga could not get a fair trial, but that finding was reversed by the appeals chamber.

The prosecution’s position, that it must decide what material is relevant for disclosure has been troubling to some trial watchers and practitioners as well as to the trial chamber.  The prosecution takes the position that much of was it has cannot be disclosed to the defense, but only used a basis to find new evidence since the information has come through diplomatic channels and must be private.  This, of course, raises the question of whether or not the accused can be offered a fair trial if he cannot see the evidence against him or if potentially exculpatory evidence is being hidden, or ignored by the prosecution.

The question to be resolved is, do the rules provide an adequate protection of the accused?  Rule 77 says:
Inspection of material in possession or control of the Prosecutor
The Prosecutor shall, subject to the restrictions on disclosure as provided for in the Statute
and in rules 81 and 82, permit the defence to inspect any books, documents, photographs and
other tangible objects in the possession or control of the Prosecutor, which are material to
the preparation of the defence or are intended for use by the Prosecutor as evidence for the
purposes of the confirmation hearing or at trial, as the case may be, or were obtained from or
belonged to the person.

Part of the issue comes from the hybrid nature of the court.  The court is both a civil law (European) and a common law (U.K./U.S) system. In a traditional civil law system the prosecution has a duty to fully investigate the case, including any exculpatory evidence before presenting the case to the court.  In common law systems the adversarial nature of the process, with full disclosure for the parties is presumed to better serve the interests of justice.  In a hybrid system, does the prosecutor have a greater duty to justice and full and fair investigation, or to build a case against the accused with the defense having an opportunity to present its own case?  Can the defense adequately present its case without all the files available to the prosecution?

In the end, the answers to these question, provided, in part, by the Lubanga case will determine whether or not the ICC is credible.  If the accused cannot get a fair trial, then what is the point of the court?

Lubanga is the first person to face trial in the ICC.  He is alleged to have been using child soldiers in the Democratic Republic of Congo, (DRC).  He was brought to the court in 2006, his trial began in January 2009, and the defense began presenting its case in January 2010.

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