Chui Released from ICC Custody

By | Published December 21, 2012

Matthieu Ngdolou Chui has been released from International Criminal Court (ICC) custody, following his acquittal by Trial Chamber II on Monday.  The prosecutor announced on Tuesday that they would appeal the acquittal and ask the appeals chamber to re-evaluate the evidence.  Both the trial chamber and the appeals chamber denied the prosecutor’s request to hold him in custody pending the appeal.

Chui had been tried along with Germain Katanga for war crimes alleged to have occurred in the Democratic Republic of Congo (DRC).  the trial  began in November 2009, and was the second ICC case to proceed to trial.  The defense began presenting its case in April 2011. Last month the court severed the cases and announced a verdict in Chui’s case would come this week.  The case against Katanga is not yet resolved.

 

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Chui Found Not Guilty

By | Published December 18, 2012

Matthieu Ngdolo Chui, alleged to have been a leader of militias in the Democratic Republic of  Congo (DRC), was found not guilty of war crimes and crimes against humanity today by Trial Chamber II of the International Criminal Court.  This is the second verdict issued by the ICC.  Thomas Lubanga was convicted earlier this year and sentenced to 14 years for the war crimes of  recruiting and enlisting child soldiers in the DRC.  That case is in its reparations phase.

Chui was indicted and initially tried as a co-defendant with Germain Katanga, but the case was severed November 21, 2012.  Judges are considering motions to change the case and mode of liability for Katanga. The defense began presenting its case in November 2011.  The  prosecution  began presenting its case in November 2009.

There were many issues with the case as it proceeded, including a motion from the prosecution to declare its own witnesses hostile.  Defense witnesses testified, then sought asylum in The Netherlands.  Ultimately, the court decided the witnesses who testified that Chui was the leader of the Lendu militia during an attack on the Bogoro village in the Ituri district of the Eastern DRC were not credible and that the prosecution had not proved its case beyond a reasonable doubt.

The Coalition for the ICC issued the following statement:

Today’s decision will undoubtedly be a disappointment to the all-too-many victims of the most terrible crimes in a part of the world that has reported, decade after decade, millions of lost lives and where the ICC has tried its best to prosecute war crimes and crimes against humanity in an ongoing conflict zone, nevertheless, the rule of law must be respected if peace and stability are our ultimate goals. The Coalition urges the ICC to explain today’s decision to victims and affected communities, as well as the reasons behind the delayed verdict against Germain Katanga. said William R. Pace, convenor of the Coalition for the International Criminal Court.

Either side can appeal the decision, a trait of Civil Code systems used in much of Europe, under Common Law, used in the U.K., the U.S. and other former British Colonies, an acquittal cannot be appealed.

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Court Establishes Reparations Process

By | Published August 13, 2012

Trial Chamber I of the International Criminal Court (ICC) has issued a 94 page decision describing the process for victims to collect reparations. The order, issued following the decision to sentence Thomas Lubanga Dyilo to 14 years imprisonment after having been found guilty of war crimes and crimes against humanity as leader of the Union of Congolese Patriots for conscripting and using child soldiers in his rebel army in the Democratic Republic of Congo.

The court ordered that most of the processing of claims be delegated to the Trust Fund for Victims which welcomed its new role in a statement. The trust fund reports that it has €1.2 million in its fund for reparations, and that 85 victims have made application for reparations in the Lubanga case and more than 8,000 victims overall.  All applications are to be turned over to the trust fund, though the court will maintain oversight and approve the details.  The court described “five step process:”

First, the TFV, the Registry, the OPCV and the experts, should establish which
localities ought to be involved in the reparations process in the present case
(focusing particularly on the places referred to in the Judgment and especially
where the crimes committed).  Although the Chamber referred in the Article
74 Decision to several particular localities, the reparations programme is not
limited to those that were mentioned. Second, there should be a process of
consultation in the localities that are identified. Third, an assessment of harm
should be carried out during this consultation phase by the team of experts.
Fourth, public debates should be held in each locality in order to explain the
reparations principles and procedures, and to address the victims’
expectations. The final step is the collection of proposals for collective
reparations that are to be developed in each locality, which are then to be
presented to the Chamber for its approval.

The American Non-Governmental Organizations Coalition for the International Criminal Court, (AMICC) reviewed and discussed the decision here, noting:

The Chamber noted that since Thomas Lubanga was found to be indigent, reparations will be financed by the Trust Fund for Victims, which tends towards collective reparation

Suggestions by victims and victims groups about the form reparations should take seemed to fall into three categories: reparations to empower victims economically and to stimulate local economic development, reparations to help heal the physical and mental health of victims, and symbolically (sic) reparations like a memorial.

The Trust Fund for Victims welcomed its substantial role in the reparations process and hailed the decision as “a historic milestone for victims of international crimes.” The Fund was set up by the ICC’s governing body, the Assembly of State’s Parties (ASP) in 2002 and currently has a total income of $5.5 million. $2.7 million has been set aside for grants in the DRC and Uganda.

Although the Chamber’s decision is not binding on future cases, the principles and procedures set out may be used by future Trial Chambers where they are practicable. It is possible that in a future case, where a defendant has means, a Trial Chamber may order individual reparations, or a combination of individual and collective reparations.

It appears from the decision that the direction of the court is to order collective rather than individual reparations. If the test is whether or not a convicted party has the means to make whole the victims of the kind of mass atrocities that would come before the court, then it is hard to imagine the defendant with the resources to make to make whole hundreds or thousands of victims after having spent some time in pre-trial detention, trial and appeal.

Lubanga was the first person to be tried, convicted and sentenced by the court, as previously described on this blog:

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

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

 

Court Video on the Reparations Decision (In French).

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Lubanga Sentenced to 14 Years

By | Published July 10, 2012

Schevingen Prison in The Hague, Netherlands, where prisoners spend pre-trial detention.

 

Thomas Lubanga Dyilo, the first accused brought to the International Criminal Court, has been sentenced to 14 years imprisonment for the war crimes of recruiting, conscripting and enlisting child soldiers in his rebel army in the Democratic Republic of Congo, the Union of Congolese Patriots.  The court announced the guilty verdict in March.

As previously blogged here:

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

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

As pointed out in the BBC report, Lubanga has been in the custody of the court for more than 6 years, and so would have something less than eight years to serve.   The prosecution and defense now have 30 days to appeal the verdict and the sentencing order.  It is not clear when the victim’s reparations process will begin, presumably after the resolution of any appeals.

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Appeals Chamber Dismisses Appeal in Mbarushimana Case

By | Published May 30, 2012

Building of the International Criminal Court in The Hague
An appeals chamber of the International Criminal Court has dismissed the prosecution’s appeal in the case against Callixte Mbarushimana.  Mbarushimana was charged with six counts of war crimes and five counts of crimes against humanity based on his position as Executive Secretary for the Democratic Forces for the Liberation of Rwanda, (FDLR).

The case was dismissed in December after the Confirmation of Charges hearing.  The details of the case were blogged about here.

 

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Lubanga Found Guilty

By | Published March 14, 2012

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

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


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

According to the Lubanga Trial blog:

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

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

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

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

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Mbarushimana Case Dismissed at Confirmation of Charges Hearing

By | Published December 17, 2011

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

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

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

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

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

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

Factual findings

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

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

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

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

Background

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

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

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

Investigations are ongoing with respect to the situation in the DRC

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

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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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Lubanga Trial Closes Evidence Phase

By | Published April 21, 2011

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.

 

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Lubanga Closing Scheduled

By | Published April 13, 2011

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.

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