What is Left of the Victims Right to Select Counsel?

By | Published September 26, 2011

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.

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Philippines Ratifies the Rome Statute

By | Published August 31, 2011

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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Will Muammar Qadafi Appear at the ICC?

By | Published August 29, 2011

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?

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Are Victims Getting Short Shrift at the ICC?

By | Published July 18, 2011

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.

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Office of the Prosecutor Announces Ivory Coast Investigation

By | Published June 17, 2011

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.

 

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Katanga Witnesses Testify, then Seek Asylum

By | Published June 6, 2011

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.

 

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ICC Opens Ivory Coast Probe

By | Published May 27, 2011

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.

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Katanga and Chui Begin Defense Case

By | Published April 2, 2011

Germain Katanga and Matthieu Ngdolo Chui began presenting their defense last week.  Katanga and Chui are alleged to have committed war crimes and crimes against humanity as the leaders of the Patriotic Resistance Force in Ituri (FPRI) in the Democratic Republic of Congo.

Katanga and Chui are accused in an indictment of the following crimes:

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.

Katanga and Chui were brought before the court in February of 2008, their trial began in November of 2009.  The Katanga team has estimated that it would take 122 hours to present its defense witnesses and Chui team estimates 200 hours of court time.  According to the Katanga trial website, if the prosecution takes an equivalent amount of time to cross-examine the witnesses, then the defense case will require 644 hours of court time or about 16 months given the court’s schedule, roughly equivalent to the time the prosecution needed to present its case.

Katanga and Chui were the second case to go to trial at the International Criminal Court (ICC) in The Hague, Netherlands, following the case of Thomas Lubanga Dyilo.  The third case, Jean-Pierre Bemba Gombo from the Central African Republic, started trial in November 2010, another case, against Abdallah Banda and Saleh Jerbo from Darfur has completed confirmation of charges and is now headed for trial.  The latest case, against Callixte Mbarushimana is scheduled for confirmation of charges in July.

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International Criminal Court Announces Indictments in Kenya

By | Published March 8, 2011

Pre-Trial Chamber II of the International Criminal Court (ICC) today announced the indictments in the post-election violence in Kenya.  The court has combined the cases into two indictments with three accused each.

The court issued an indictment against William Samoei Ruto,  a suspended Minister of Higher Education, Science and technology of the Republic of Kenya; Henry Kiprono Kosgey,   Minister of Industrialization of the Republic of Kenya and the Chairman of the
Orange Democratic Movement; and Joshua Arap Sang,  head of operations at Kass FM in Nairobi.

The court found:

reasonable grounds to believe that Ruto and Kosgey are criminally responsible as indirect co-perpetrators (i.e., committing crimes through another person(s)) in accordance with article 25(3)(a) of the Rome Statute for the crimes against humanity of murder, forcible transfer and persecution.

The Pre-Trial Chamber II was satisfied that there were reasonable grounds to believe that Sang otherwise contributed to the commission of the crimes in accordance with article 25(3)(d) of the Rome Statute.

The court did not find reasonable cause to for an additional count requested by the prosecutor, Torture.  The court issued a summons for the three, requiring that they appear before the court on April 7.  The court’s order is available here.

An interesting addition to the discussion was the court’s determination that the prosecutor had claimed two modes of liability for the accused:

as co-perpetrators, or in the alternative” as
falling under article 25(3)(d) of the Statute. Later, under the section on modes of
liability, the Prosecutor alleged that the three persons’ criminal responsibility fits as
“indirect co-perpetrators, or in the alternative, as co-perpetrators” or as common
purpose liability under article 25(3)(d) of the Statute.
36. Although the Prosecutor may generally charge in the alternative, he should be
consistent throughout his Application about the actual mode(s) of liability that he
intends to present to the Chamber. Moreover, the possibility for the Prosecutor to
charge in the alternative does not necessarily mean that the Chamber has to respond
in the same manner. In particular, the Chamber is not persuaded that it is best
practice to make simultaneous findings on modes of liability presented \ in the
alternative. A person cannot be deemed concurrently as a principal and an accessory
to the same crime. Thus, it is the Chamber’s view that an initial decision has to be
made on the basis of the material provided, as to whether there are reasonablegrounds to believe that Ruto, Kosgey and Sang bear criminal responsibility for the
crimes against humanity that occurred in the specific locations in the Republic of
Kenya, as discussed in section II above, either as co-perpetrators, indirect coperpetrators,
or any other form of liability presented or that the Chamber finds
appropriate.

The court also issued a summons for the appearance of: Francis Kirimi Muthaura,  Head of the Public Service and Secretary to the Cabinet of the Republic of Kenya; Uhuru Muigai Kenyatta,  Deputy Prime Minister and Minister for Finance of the Republic of Kenya; and Mohammed Hussein Ali, Chief Executive of the Postal Corporation of Kenya.

The court found:

reasonable grounds to believe that Muthaura and Kenyatta are criminally responsible as indirect co-perpetrators in accordance with article 25(3)(a) of the Rome Statute for the crimes against humanity of murder, forcible transfer, rape, persecution and other inhumane acts.

The Chamber was satisfied that there were reasonable grounds to believe that Ali otherwise contributed to the commission of the crimes in accordance with article 25(3)(d) of the Rome Statute.

The decision in this case is available here.

In both cases, Judge Hans Peter Kaul dissented, though he has yet to issue a written position.

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Lubanga Trial to Re-Open

By | Published March 1, 2011

The trial of Thomas Lubanga Dyilo will re-open soon.  The trial was stopped for a few months while the trial court considered a defense motion to dismiss for the prosecution’s failure to provide disclosure as required.

Part of the issue has been the appearance of two witnesses for the defense who testified that two witnesses for the prosecution had stolen their identity and falsely claimed to have been child soldiers. This led to a fight about the identity of the prosecution investigator, or intermediary in the parlance of the court, who found those witnesses and a lengthy delay while the prosecution argued it could not disclose the intermediary’s identity.  The court has since issued a number of decisions clarifying the disclosure obligations of the prosecutor and whether the delay in meeting those obligations prejudiced the defense.

Lubanga was the first defendant in ICC custody, arrested in 2007, his trial began in January 2009.  The defense began presenting their case in January, 2010.  The case was halted over the summer because the trial court ruled that Lubanga could not get a fair trial because of the disclosure issues.  A timeline of the trial, through the halt in 2010, is available here.

The appeals chamber reversed the trial court’s finding that Lubanga could not get a fair trial, finding that the trial chamber had not explored sanctions sufficiently.  The trial restarted then stalled on a motion to dismiss from the defense. A resumption date for the trial has not been announced.

Lubanga is accused of recruiting, conscripting, and using child soldier as war crimes and crimes against humanity in the Democratic Republic of Congo. The fairness of the trial is an issue raised again and again in this case.  Failure to provide a full and fair process to the defense will make the court less credible.

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