Pre-Trial Chamber Confirms Charge in Darfur Case

By | Published March 8, 2011

Pre-Trial Chamber I of the International Criminal Court (ICC) has issued a finding confirming the charges against Abdallah Banda and Saleh Jerbo.  The court statement said the court  found that Banda and Jerbo should stand trial for three war crimes:

  • violence to life and attempted violence to life;
  • intentionally directing attacks against personnel, installations, material, units and vehicles involved in a peacekeeping mission; and
  • pillaging.

The court included the following information supporting the charges:

These crimes were allegedly committed during an attack led by Abdallah Banda and Saleh Jerbo and other commanders and directed against the compound of the African Union Mission in Sudan at Haskanita on the evening of 29 September 2007. The Chamber found substantial grounds to believe that the attack was directed to personnel, installations, material, units and vehicles involved in a peacekeeping mission in accordance with the Charter of the United Nations which were entitled to the protection afforded to civilians and civilian objects.

Banda and Jerbo appeared voluntarily before the court, following the lead of Bahar Idriss Abu Garda who also appeared voluntarily, but won a dismissal at the confirmation of charges hearing.  The court has also issued indictments against the President of Sudan, Omar Al-Bashir, the Minister of Humanitarian Affairs, Ahmad Harun, and Janjaweed leader Ali Kushayab.  The situation in Darfur was the first case referred to the ICC by the United Nations Security Council.  The second, Libya, was referred last week.

To date, Sudan has refused to turn the indictees over to the court, so the only ones who have appeared are the three who have appeared voluntarily.

The seventy five page decision is available here. There are currently three cases in trial stage at the ICC, the case against Thomas Lubanga Dyilo, a joint case against Matthieu Ngdolo Chui and Germain Katanga, and the case against Jean Pierre Bemba Gombo.  Another accused, Callixte Mbarushimana has recently arrived in The Hague. In addition to the Sudan accused at large, there is one accused from the Democratic Republic of Congo still at large and three from Uganda who have not yet appeared before the court.

There may be other indictments that have not yet been made public.  Indictments in the post-election violence in Kenya case were also released today.

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Darfur Case Starts Confirmation of Charges Without the Accused Attending

By | Published December 9, 2010

The second Darfur, Sudan case has begun the confirmation of charges hearing at the International Criminal Court (ICC), but without the presence of the accused. Abdallah Banda Abakaer Nourain (Banda) and Saleh Mohammed Jerbo Jamus (Jerbo) are accused of directing attacks on African Union peacekeepers in 2007.  Banda and Jerbo appeared voluntarily before the court and have been under court supervision, but not in custody.  The Confirmation of Charges hearing began on December 8th. Banda  and Jerbo have received the approval of the court to not attend the hearings, though their lawyers will be in attendance.

In a previous Darfur case, the accused, Bahr Idriss Abu Garda (Abu Garda), appeared voluntarily before the court and had his case dismissed at the Confirmation of Charges stage.   Abu Garda was also accused of directing attacks on peacekeeping forces and other war crimes.

The ICC has jurisdiction to prosecute war crimes, crimes against humanity, and genocide occurring since 2002 in the territories of the 114 nations that have ratified the ICC treaty, or by their nationals, or in the situations referred to the ICC by the United Nations Security Council.  The situation in Darfur is the first case to come to the court at the direction of the U.N. Security Council for the ongoing concerns of genocide, crimes against humanity and war crimes alleged to be ongoing in Darfur, though Sudan is not a signatory to the ICC treaty.

In addition to the three accused who have appeared voluntarily before the court, the court has publicly issued warrants for the arrest of the President of Sudan, Omar al-Bashir, the minister of Humanitarian Affairs of Sudan, Ahmad Harun, and the rebel leader Ali Kushayb.  The warrant for Bashir was the first public indictment of a sitting head of state by an International Tribunal.  The indictments against Banda, Jerbo and Abu Garda were not made public until they appeared before the court.  It is not known how many indictments have been issued under seal.

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Fourth DRC Suspect Arrested in France

By | Published October 11, 2010

The fourth person accused of war crimes and crimes against humanity in the Democratic Republic of Congo (DRC), Callixte Mbarushimana has been arrested in France.  Mbarushima is listed as the Executive Secretary of the Democratic Forces for the Liberation of Rwanda, (FDLR) and is accused of six counts of war crimes and was arrested outside his home in Paris to fact charges at the International Criminal Court, (ICC) in The Hague, Netherlands.

The warrant naming Mbarushimana was unsealed after his arrest, raising the question  of how many other sealed indictments and warrants await public disclosure.  The ICC press release on the arrest of Mbarushimana is available here. Bloomberg news covered the story here.

According to a fact sheet released by the ICC:

 In sealed documents submitted to the ICC
judges on 20 August 2010, the Office of the
Prosecutor (OTP) presented evidence against
Mr. Callixte MBARUSHIMANA, Executive
Secretary of the FDLR, charging him with 6
counts of war crimes and 5 counts of crimes
against humanity.
 The Court’s Pre‐Trial Chamber I issued a
sealed arrest warrant on 28 September 2010.
 On 11 October 2010, the French authorities
executed the arrest warrant and arrested Mr.
Callixte MBARUSHIMANA in Paris, France.

The fact sheet describes the allegations as follows:

 Mr. Callixte MBARUSHIMANA is accused
of being among the top FDLR leaders that, at
the end of 2008 and over the course of 2009,
agreed to conduct widespread and systematic
attacks against the civilian population in order
to create a humanitarian catastrophe. He is
also accused of agreeing to conduct and
personally conducting an international
campaign intended to persuade the DRC and
Rwanda Governments and the international
community that the FDLR could not be
defeated militarily and thereby to extort from
them concessions of political power for the
FDLR in Rwanda as a condition for the FDLR
to stop committing atrocities against civilians.
 The OTP accuses Mr. Callixte
MBARUSHIMANA, as part of the FDLR
leadership, of having used violence against
civilians as their main bargaining tool in their
international campaign to attempt to extort
from Rwanda and the international
community political power for the FDLR.
 The OTP accused Mr. Callixte
MBARUSHIMANA of being responsible for
the crimes committed by the FDLR in pursuit
of this goal as contributor to the commission
of crimes by the FDLR, a group acting with a
criminal common purpose.
 As such, the 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.

Mbarushmina is the first accused at the ICC to face charges for crimes alleged to have been committed in the Kivus provinces of the DRC.  The three accused from the DRC who are presently at the ICC are in trial.

Thomas Lubanga Dyilo former head of the Union of Congolese Patriots was brought to the court in 2006, his trial began in January 2009, with the defense case beginning in January 2010.  His trial was adjourned for failure by the prosecutor to disclose the identity of an investigator, but is expected to resume shortly.

Germain Katanga and Matthieu Ngdolo Chui are also from the DRC and are being tried together.  Their trial commenced on November 24, 2009.  Katanga and Chui are accused of war crimes and crimes against humanity including, using child soldiers, sexual slavery, attacking civilians, rape and pillaging.

Those are the only cases to come to trial in the history of the ICC.  A third trial, that of Jean-Pierre Bemba Gombo, of the Central African Republic accused of rape and murder as crimes against humanity and rape, murder and pillaging as war crimes is awaiting the end of the  Lubanga trial in order to start trial.

The ICC began in 2002 when the 60th nation ratified its treaty, as of November 1, there will 114 nations that have ratified the treaty and subjected their citizens to the jurisdiction of the ICC.

Three citizens of Sudan, which is not a state’s party to the ICC have appeared before the court voluntarily to face charges.  The first, Bahr Idriss Abu-Garda had his case dismissed at the confirmation of charges hearing.  Two others, Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jermus are awaiting the confirmation of charges hearing after appearing voluntarily in June of 2010.

There are outstanding warrants for the arrest of Omar Hassan Al-Bashir, the president of Sudan for genocide and war crimes, Ahmed Harun, minister of Humanitarian Affairs in Sudan and the leader of the Janjaweed Militia, Ali Kushayeb. The case against Al-Bashir is the most controversial, having raised concerns about the indictments of sitting heads of state. Al Bashir is the first sitting head of state to be indicted for war crimes or crimes against humanity by an international tribunal.

There have been public indictments issued from investigations in Uganda, and the prosecutor has announced the indictments will be published in the next few months in the investigations into post-election violence in Kenya.

The prosecutor of the ICC, Luis Moreno-Ocampo, has also said there may be investigations into crimes within the jurisdiction of the court in Afghanistan, Colombia,  Georgia, and  Guinea.  At the moment, the only publicly disclosed investigation are from five contiguous countries in Africa, DRC, Central African Republic, Kenya, Uganda and the Darfur region in Sudan.

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St. Lucia Ratifies ICC Treaty

By | Published August 21, 2010

This week the Caribbean Island nation of St. Lucia became the 113th nation to ratify the Treaty of Rome and become a member of International Criminal Court (ICC).  The ICC treaty became effective in 2002 when the 60th nation ratified the treaty.   In 1998, the treaty was signed by 120 countries and developed the framework for a court.

The court is intended to prosecute war crimes, crimes against humanity and acts of genocide.  The court has jurisdiction in the nations that have ratified the treaty and that jurisdiction extends to acts from the effective date, July 1, 20o2.

The court was in part a response to international tribunals which had been created to prosecute crimes in the former Yugoslavia, Rwanda and Sierra Leone.  Instead of creating a new tribunal for each set of atrocities, the idea was to create a permanent court to hear all such cases.

In order to have jurisdiction, the crimes must occur in one of the states which has ratified the treaty, or the case must be referred by the U.N. Security Council.  The ICC has indicted persons from Uganda, Democratic Republic of Congo, Central African Republic, and Darfur, Sudan.  The court has also approved an investigation into the post-election violence in Kenya, but no indictments have been made public.

The first ICC case to go to trial, Thomas Lubanga Dyilo of the Democratic Republic of Congo has been suspended because of the prosecution’s failure to comply with discovery orders by the court.  This case may provide a test of the lasting power of the court and its ability to function.  The court has ordered Lubanga released, but that order has been stayed pending appeal.

The court also has outstanding arrest warrants for the President of Sudan, Omar Al-Bashir.  The court has indicted Bashir for genocide, and war crimes in Sudan, but his government and many other countries have declined to arrest Bashir and present him to the court.

Another case that came to the court from Sudan, Bahar Idriss Abu Garda, won dismissal of the charges against him at the confirmation of charges hearing. Two more accused from Sudan have now voluntarily appeared before the ICC and are contesting the confirmation of charges.

A major criticism of the court so far has been that all the cases have come from Africa, in fact adjoining countries in Africa.  The ICC Prosecutor, Luis Moreno-Ocampo has said that more cases will be forthcoming and has said investigations are ongoing in Georgia, Guinea, Afghanistan, and Colombia.

The court cannot prosecute cases where a national authority has the jurisdiction and ability to prosecute.  Its mandate is to prosecute only those crimes that will otherwise go unpunished and those that are severe enough to qualify as war crimes or crimes against humanity.  The ICC sits in The Hague, Netherlands.

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International Criminal Court Issues Another Warrant for Sudanese President Bashir

By | Published July 12, 2010

The International Criminal Court (ICC) Pretrial Chamber I has issued another arrest warrant for the President of Sudan, Omar Al-Bashir.  This decision follows an earlier direction from the appeals chamber, detailed here, that determined that the Pre-Trial Chamber had used the wrong standard in failing to indict Bashir for genocide.

Bashir is the first sitting head of state to be indicted by an international tribunal and have a warrant issued for his arrest, he now also bears the distinction of being the first person to be indicted for genocide by the International Criminal Court and the first person for whom an arrest warrant for genocide was issued.  There are now two arrest warrants out for Bashir.  The ICC’ press release is available here.

The situation in Darfur was referred to the ICC by the U.N. Security Council. Sudan is not a signatory to the  ICC treaty.  Bashir and the minister of Humanitarian Affairs in Sudan, Ahmad Harun are the Sudanese government officials who have been indicted.  Ali Kushayab, reputed head of the Janjaweed militia has also been indicted.  None of those three have appeared before the court.  Three other accused from Sudan have appeared voluntarily before the court.  Of the three who have voluntarily appeared, one,  Bahar Idriss Abu Garda had his case dismissed at the confirmation of charges hearing.  The other two are awaiting their confirmation of charges hearings.

Sudan was referred to the ICC for investigation of crimes against humanity, war crimes and genocide.  Several victims have been granted the right to participate in these cases when they commence.  Persons who are victims of war crimes have a right to participate in the ICC cases and to seek reparations if there is a conviction.

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New Sudan Accused Appear Voluntarily Before the International Criminal Court

By | Published June 16, 2010

Two new suspects in the International Criminal Court (ICC) situation in Darfur have now voluntarily appeared before the court to answer charges of war crimes involving attacks on U.N. peacekeepers.  Abdallah Banda Abakaer Nourain (Banda) and Saleh Mohammed Jerbo Jamus (Jerbo) were issued summonses under seal in August of 2009.  Banda and Jerbo are scheduled to make their  appearances before the court on June 17, 2010.  A previous accused from Sudan, Bahar Idriss Abu Garda appeared voluntarily before the court and his case was dismissed at the confirmation of charges hearing.  That case was previously described here.

The court’s press release on the arrest of Banda and Jerbo is available here.  The International Criminal Law Bureau has blogged about the scheduled appearance here.

The President of Sudan, Omar Al Bashir remains under indictment for the crimes against humanity alleged in Darfur.  The Minister of Humanitarian Affairs of Sudan, Ahmad Harun and Ali Kushayb, the leader of the Janajaweed militia have also been indicted under public indictments.  None of those three have appeared before the court.  It is not known how many other indictments, summonses or warrants remain under seal.

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ICC Pre-Trial Chamber Notifies Security Council of Sudan’s Failure to Cooperate

By | Published May 31, 2010

Pre-Trial Chamber I of the International Criminal Court (ICC) in The Hague has issued a document titled “Decision informing the United Nation’s Security Council about the lack of cooperation by the Republic of Sudan.“  The decision gives notice to the Security Council that the one situation referred to the ICC by the Security Council has not been able to proceed, in large part because the indicted parties in the Sudanese government have not appeared before the court.

The President of Sudan, Omar Hassan Al-Bashir has been indicted by the court for crimes against humanity and war crimes, as have the Minister of State for Humanitarian Affairs, Omar Harun, and the leader of the Janjaweed Militia, Ali Kushayb.  Interestingly the decision does not mention President Bashir, only Harun and Kushayb.  A fourth leader from Sudan, Bahar Idriss Abu Garda appeared voluntarily before the court and the charges were dismissed at the confirmation of charges hearing.

At least one commentator has suggested the decision is of “lamentable quality” and poor timing, coming out just before the Association of States Parties are to meet in Kampala for a review of the progess of the court and the Rome Statute.  111 nations have ratified the Rome Treaty and joined the court.  Three notable holdouts have been Security Council members Russia, China and the United States.    Kofi Annan, who was U.N. Secretary General at the time of the creation the court has argued the need for universal ratification.

The Situation in Darfur was referred to the ICC by the Security Council because of the concerns of an ongoing genocide.  Bashir is the first sitting head of state to be indicted by an international tribunal.  Some governments have promised to arrest him if he enters their territory, others have allowed him safe passage.  When or whether he appears before the court is an open question.

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ICC Appeals Chamber Rejects Prosecution Appeal

By | Published April 30, 2010

The office of the prosecutor appealed the decision of the pre-trial chamber declining to confirm charges again Bahar Idriss Abu Garda.  The trial chamber decision, originally blogged here,  found that the office of the prosecutor had not produced enough evidence to continue the case for trial.   The standard of proof at the confirmation of charges hearing is “substantial grounds.” Abu Garda was charged with three war crimes, violence to life, directing attacks against peacekeeping forces, and pillaging.

The court issues indictments when the prosecutor establishes “reasonable grounds” for the charges.  If the pre-trial chamber finds “substantial grounds,” the case is continued for trial where the case must be established beyond a reasonable doubt.

The Abu Garda case is unique in a number of ways.  Abu Garda is the first defendant from the situation in Darfur to appear before the court, and the first accused in any situation to appear voluntarily before the court.  He is now the first to have his case dismissed at the confirmation of charges hearing and the first to have a dismissal affirmed by the appeals chamber.

The Hague Justice Portal blog on the appeals chamber decision is available here. The  appeals chamber decision was issued on April 23, 2010, the pre-trial chamber declined to confirm the charges on February 8, 2010.  The other three accused from the Darfur situation,  Omar Al Bashir, the President of Sudan, the country’s Minister of Humanitarian Affairs, and the leader of the Janjaweed militia all remain at large.  The Government of Sudan has not cooperated with the court and is not a signatory to the treaty.  The situation in Darfur was referred to the court by the U.N. Security Council.

The International Criminal Court sits in The Hague and is intended to be a permanent court to decide charges of war crimes, crimes against humanity and genocide that cannot or will not be prosecuted by national authorities.

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Lubanga Trial Takes Two Week Break

By | Published February 21, 2010

The International Criminal Court trial of Thomas Lubanga Dyilo was suspended this week for a two week trip for the defense to the Democratic Republic of Congo for important “research,” presumably this means further investigation into the previous allegations that prosecution witnesses lied  or were paid to lie about being child soldiers.  The trial was earlier suspended on Tuesday because of noted differences in the official English and French transcripts.  The reporting from the Open Society Institute, available here, does not make clear whether or not the court had arrived at a resolution of the transcription problem.

The court also ruled that the Lubanga defense could share information on its investigation with the defense team of Germain Katanga, whose trial, along with co-defendant Matthieu Ngdolo Chui was the second trial to start at the ICC. The trial opened on November 26, 2009, and my summary of the case and its opening is available here. Lubanga is the first person to face a trial at the ICC.  Lubanga, Katanga, and Chui were rebel leaders in the Democratic Republic of Congo, and are charged with war crimes, and crimes against humanity.  There are four witnesses who are scheduled to testify for the prosecution in both cases, and the defenses wished to share the information they had collected in their investigations.  Judge Adrian Fulford ruled there was nothing to prevent such sharing between the teams.

Lubanga is accused of using child soldiers in his Union of Congolese Patriots, and Katanga and Chui are charged with  using child soldiers, attacking civilian targets, destruction of property, rape and sexual slavery as war crimes, they are also alleged to have committed crimes against humanity, including murder within the court’s jurisdiction, rape and sexual slavery. Another accused from the DRC, Bosco Ntaganda is still at large.

In the cases of the Sudan, one accused, Bahar Idriss Abu Garda voluntarily appeared at the court, and the charges against him were not confirmed.  A summary of that action is available here.  Three more accused from Sudan remain at large.  In the Uganda case there are four accused, all of whom are still at large.  In the case involving the Central African Republic, there is one accused, Jean-Pierre Gemba, whose trial is expected to begin April 27, 2010.

The International Criminal Court sits in The Hague, Netherlands and is intended to be a permanent court to hear cases of war crimes, crimes against humanity, and genocide when those cases are not resolved by national authorities.  Thomas Lubanga was the first person brought before the court, he was arrested in 2007, and his trial began in January 2009, the defense began presenting its case in January 2010.  There are also victims who have been given a limited right to participate in the case, and then to seek reparations if they can establish their right to do so.

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International Criminal Court Finds For Abu Garda

By | Published February 8, 2010

The Interational Criminal Court, pre-trial chamber I today ruled that the Office of the Prosecutor had not provided sufficient evidence to continue the case against Bahar Idriss Abu Garda for trial.  Abu Garda was the first case from the Sudan to come before the court. He appeared voluntarily with counsel in May of 2009 and has been in The Hague, though not in custody since then.

Abu Garda was charged with three war crimes, violence to life, directing attacks against peacekeeping forces, and pillaging.  The court found there was not sufficient evidence presented at the confirmation of charges hearing to require a trial.

The International Criminal Court uses a three stage process, a warrant and indictment can issue if there are “reasonable grounds” to believe the person committed war crimes or crimes against humanity.  Once the accused is before the court, then there is a confirmation of charges hearing where the accused can participate and challenge the evidence, if after that hearing the court determines there is “substantial grounds” to believe the person is guilty of the crimes charged then a trial may be held where the prosecutor must prove the case beyond a reasonable doubt.

It was at this second stage where the court found for Abu Garda and essentially dismissed the charges.  This hearing, the equivalent of a probable cause hearing in an American court case may end the case against Abu Garda, although the prosecutor has the right to appeal the determination, and may ask to reopen if they can provide new evidence of Abu Garda’s involvement or command responsibility for the alleged war crimes.

The court’s press release regarding the decision is available here, the order itself is here, and the court’s fact sheet on the case is located here.  Abu Garda is the fifth person brought to the court to face charges of war crimes, and the first to win the confirmation of charges hearing.

The court has previously confirmed charges against Thomas Lubanga of the Democratic Republic of Congo and against Germain Katanga and Matthieu Ngdolo Chui also of the Democratic Republic of Congo.  Lubanga’s defense team is currently presenting its case, and Katanga and Chui are being tried together, their trial recently resumed.  The court has also confirmed the charges against Jean-Pierre Bemba Gombo of the Central African Republic who is awaiting the start of trial.

The president of Sudan, Omar Hassan Ahmad Al Bashir and a cabinet official, Ahmad Harun have also been indicted by the court for war crimes as has a rebel leader, Ali Kushayb.  None of them has yet appeared before the court to face the charges.

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