Tag Archives: crimes against humanity

Posts related to Crimes Against Humanity charges at the International Criminal Court in The Hague, Netherlands.

Ruto and Sang Trial Begins at the ICC

The trial of Kenya Deputy President William Ruto and Broadcaster Joshua Sang began at the International Criminal Court, (ICC) in The Hague, Netherlands this week.  Ruto and Sang were indicted for their alleged direction of post-election violence in Kenya in 2007-2008.  The case has a complex history.

In 2009, former United Nations Secretary General Kofi Annan provided a list of suspects provided to him in a sealed envelope:

The list of about a dozen people includes at least two senior cabinet ministers and will increase the pressure on Kenya’s coalition government to establish a special local tribunal. Annan, who brokered an end to the crisis last year, had pledged to hand over the names if the government failed to hold accountable those most responsible for orchestrating the violence.

From that list, the Office of the Prosecutor (OTP) at the ICC began its investigation into the post-election violence.  The OTP reported at the time that officials had been involved in the post-election violence, and delivered a list of 20 names to the chamber overseeing the investigation.

Eventually the court released the names of six Kenyan officials who had been indicted by the court. The  six, dubbed the “Ocampo Six” by the Kenyan media, included Ruto, Sang and Uhuru Kenyatta, who was elected president of Kenya in March. The name “Ocampo Six” was a reference to then ICC prosecutor, Luis Moreno-Ocampo. At the confirmation of charges hearing, a sort of probable cause hearing, two of the “Ocampo Six” were dismissed from the case as the court found there was not sufficient evidence to hold them for trial. A third defendant, the co-defendant of Kenyatta, Francis Kirimi Muathara had the charges against him withdrawn by the prosecutor, leaving Kenyatta as the sole defendant in his case, and Ruto and Sang.  Several witnesses have said they will not testify against Kenyatta, the ICC does not have the power to compel witnesses to testify.

Kenya’s government, before the election of Kenyatta and Ruto to their current positions, argued unsuccessfully to dismiss the indictments. Kenya’s parliament recently voted to withdraw from the court.

At the confirmation of charges hearing, Judge Hans Peter Kaul issued a dissent where he argued the cases were not admissible:

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, and the other pre-trial judges are not presiding at the trial.  The court’s press release announced the opening of the trial:

Mr Ruto and Mr Sang are accused of crimes against humanity (murder, deportation or forcible transfer of population and persecution) allegedly committed in Kenya in the context of the 2007-2008 post-election violence. The trial is held before Trial Chamber V(a) composed of Judge Chile Eboe-Osuji (presiding), Judge Olga Herrera Carbuccia and Judge Robert Fremr.

OTP Announces Appeal of Gbagbo Case

IC Gbagbo Motta eng 195The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) in The Hague, Netherlands, issued a press release today stating the prosecutor’s intention to appeal the Pre-Trial Chamber’s decision to adjourn the Confirmation of Charges Hearing in the case against Laurent Gbagbo and ask the OTP to provide more evidence to support the case.

Laurent Gbagbo is the former President of the Ivory Coast and is the first former head of state to face charges at the ICC.  His wife, Simone Gbagbo, remains in custody in Ivory Coast and has also been indicted by the ICC.

On 23 November 2011, Pre-Trial Chamber III issued a warrant of arrest for Laurent Gbagbo (“Mr Gbagbo”), having found reasonable grounds to believe that he was criminally responsible as an “indirect co-perpetrator” pursuant to article 25(3)(a) of the Statute for the crimes against humanity of murder, rape and other forms of sexual violence, other inhumane acts and persecution, committed in Côte d’Ivoire during the period between 16 December 2010 and 12 April 2011.  P.2 Decision to Adjourn.  Footnotes omitted. 

Two of the three judges in the pre-trial chamber noted these difficulties with the case:

During the Hearing, the Prosecutor made clear that besides the four charged incidents,  she is relying upon further 41 incidents to establish her allegation for the existence of an “attack directed against any civilian population” under article 7 of the Statute. Of these 45 incidents, the majority of them are proven solely with anonymous hearsay from NGO Reports, United Nations reports and press articles. As explained above, the Chamber is unable to attribute much probative value to these materials. Moreover, many of these incidents are described in very summary fashion, making it difficult for the Chamber to determine whether the perpetrators acted pursuant to or in furtherance of a policy to attack a civilian population as required by article 7(2)(a) of the Statute. The Chamber is also presented with an incomplete picture as to: (i) the structural connections between the so-called “pro-Gbagbo forces” acting across the incidents; and (ii) the presence and activities of the
armed forces opposing them. Ultimately, the Chamber is asked by the Prosecutor to draw numerous inferences from actions or conduct of Mr Gbagbo, his inner circle and the “pro-Gbagbo forces”, but the Chamber does not have enough information to determine whether these inferences are sufficiently supported by the evidence in order to meet the required threshold for confirmation.        Order Paragraph 36, Footnotes Omitted

Judges Kaul and Van den Wingert went on to explain the reason for adjourning rather than declining to confirm the charges:

Despite these difficulties in the evidentiary record of the Prosecutor, the
Chamber considers that this does not automatically have to lead to the immediate refusal to confirm the charges. Although the Chamber is not prepared to accept allegations proven solely through anonymous hearsay in documentary evidence, the Chamber notes that past jurisprudence, which predates the above-mentioned decisions of the Appeals Chamber, may have appeared more forgiving in this regard. Therefore, the Prosecutor in this case may not have deemed it necessary to present all her evidence or largely complete her investigation, following all relevant
incriminating and exonerating lines of investigation in order to establish the truth. The Chamber does not exclude that the Prosecutor might be able to present or collect further evidence and is therefore, out of fairness, prepared to give her a limited amount of additional time to do so. As the Appeals Chamber noted when discussing summary evidence, when the evidence is insufficient the “Pre-Trial Chamber need not reject the charges but may adjourn the hearing and request the Prosecutor to provide further evidence.   Order P. 37, Footnotes omitted.

Also this week, the pre-trial chamber denied the Defense’s challenge to admissibility, the argument that the court cannot hear the case because it should be tried in Ivory Coast rather than in the ICC.  The doctrine of Complementarity prevents the ICC from hearing cases that are or have been prosecuted by national authorities.  Gbagbo has been indicted for economic crimes in the Ivory Coast, but the court found that did not prohibit him from being charged with Crimes Against Humanity in the ICC.

The appeals chamber could overrule the pre-trial chamber and set the matter on for trial, or find that there was not sufficient evidence to confirm, and dismiss the case, or follow the pre-trial chamber’s lead and ask for more evidence or detail before setting the case on for trial.  The judges do seem to be showing little deference to the decision making or evidence interpretation of the OTP.

ICC Issues Arrest Warrant for Former First Lady of Ivory Coast

The International Criminal Court (ICC) in The Hague, Netherlands,  last week unsealed an arrest warrant for Simone Gbagbo, the former First Lady of the Ivory Coast.   The warrant, issued under seal in February, was unsealed and made public last week.

The warrant says that the prosecutor requested a warrant against:

Simone Gbagbo (“Ms Gbagbo”) for her individual criminal
responsibility as regards the crimes against humanity of murder, rape and
other forms of sexual violence, persecution and other inhumane acts
committed during the post-election crisis from 28 November 2010 onwards
by the Ivorian Defence and Security Forces (“FDS”), which were reinforced
by youth militias and mercenaries loyal to President Gbagbo (“pro-Gbagbo
forces”), in Abidjan, including around the Golf Hotel and elsewhere in the
country.

The court found reasonable cause to issue the warrant for the crimes against humanity of murder, rape, persecution and “other inhumane acts.” The court found Mrs. Gbagbo responsible as “an indirect co-perpetrator.”    Even so, the court found reasonable grounds that she participated by:

i) adopting the common plan; ii) being aware of its implementation and the
means other members of the inner circle had at their disposal to implement
the common plan; iii) meeting with members of Mr Gbagbo’s inner circle to
discuss and coordinate the implementation of the common plan; iv) playing a
key role in recruiting and instructing the galaxie patriotique, and integrating
them into the FDS; and v) being aware of the contribution of other members
of Mr Gbagbo’s inner circle to the implementation of the common plan.
Furthermore, the Chamber is of the view that Ms Gbagbo was fully conscious
of the factual circumstances that enabled her and other members of
Mr Gbagbo’s inner circle to exercise joint control over the crimes.

Mrs. Gabagbo is the first woman to be charged publicly by the court. Her husband,  former president Laurent Gbagbo, is currently in ICC custody awaiting his confirmation of charges hearing, (similar to probable cause to proceed to trial).  Ivory Coast is not an ICC state party, but acceded to the authority of the court to investigate the post-election violence.  Mrs. Gbagbo is in custody in Ivory Coast, and may face trial there.  As apparently the two remaining indictees in Libya may stay in Libya for trials.  Libya has made clear it does not wish to send Saif Qadafi to the ICC, but wants to proceed with a trial in Libya.

 

Saif Qadafi to Stay in Libya

The Libyan authorities have announced that Saif Al-Islam Qadafi will stay in Libya for trial.  His trial will begin next month. Saif Qadafi, the son of Muammar Qadafi is one of three person indicted by the International Criminal Court (ICC) in The Hague, Netherlands.  Muammar Qadafi was also indicted but did not survive the fall of Tripoli.

The United Nations Security Council referred the situation in Libya to the ICC in February 2011.  The court indicted Muammar Qadafi, Saif Al-Islam Qadafi and the country’s intelligence chief.  Even while Muammar Qadafi was alive some suggested he should face a Libyan rather than an International process.

There has been an ongoing battle between the ICC and Libya for the handover of Qadafi, and Libya has now refused.  Qadafi would not face a death penalty at the ICC and would have access to lawyers to present a defense to the charges.  During the fight, Libya arrested lawyers sent by the ICC to prepare Qadafi’s defense.

The court has no authority or force to enforce its warrants for arrest and instead relies on the international community and the 121 state parties to the Rome Statute to enforce warrants and arrest those charged by the court.  The court has jurisdiction over crimes against humanity, war crimes and genocide occurring in the borders of those countries, or by nationals of those countries, or if the situation has been referred to the court by the U.N. Security Council, as has been the case in Darfur, Sudan, and Libya, which are not signatories to the treaty. The ICC is intended to provide a fair process where a national court cannot, or will not, or if the court does not have the means to provide a fair process.

Muammar Qadafi, and Omar Al-Bashir of Sudan are the first sitting heads of state to be indicted by international criminal tribunals, neither has yet appeared to face charges.