ICC Announces New Preliminary Investigations

By | Published November 25, 2010

The Office of The Prosecutor (OTP) of the International Criminal Court (ICC) has announced two new preliminary investigations, in Honduras and Nigeria.  The OTP has previously said there are preliminary investigations in Afghanistan, Colombia, Ivory Coast, Guinea, Georgia, and, according to the Hague Justice Portal, Palestine. The court has jurisdiction over war crimes, crimes against humanity and acts of genocide committed in the territory of the 114 nations who have ratified the treaty, or by their citizens, which are not punished in national jurisdictions since July of 2002.

There are currently four situations where the court has issued indictments, Democratic Republic of Congo, Uganda, Central African Republic, and Darfur, Sudan.  The OTP sought and received approval from the court to open a formal investigation into the post-election violence in Kenya, and has said there will be indictments forthcoming soon.

The OTP has yet to issue an indictment, or even seek approval from the court to open a formal situation outside of Africa, which has led to significant criticism from African countries.

The idea of a situation in Afghanistan was previously explored here. The big question raised by the idea of an investigation in Afghanistan is who might be indicted?  The ISAF forces would likely be precluded by the principle of Complentarity.  The Taliban has not been in power during the jurisdictional period of the court.  Establishing command responsibility for atrocities by a member of the Taliban might well create significant difficulties for the OTP.

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Lubanga Defense Witness Testifies for Third Day at the ICC

By | Published February 11, 2010

Lubanga defense witness Claude Nyeki Django testified for the third day that Thomas Lubanga’s Union of Congolese Patriots (UPC) did not draft child soldiers.  The proceeding stopped for a time because Django broke down on the stand for a second time.  After meeting with a psychologist from the Victims and Witness Unit  (VWU) of the International Criminal Court (ICC), Django continued his testimony.  Curiously, Django said children voluntarily joined Lubanga’s army, which may not be a very good defense.  The public portions of Django’s testmony are recounted on Day One, Day Two and Day Three of his testimony.

Django’s testimony is essentially that he never served in the UPC, and was never in the armed forces at all, but was lured into a group who claimed that he had been a child soldier and he was portrayed as such by this group.

Thomas Lubanga Dyilo was the leader of the UPC in the Democratic Republic of the Congo.  He was brought before the court in 2007, and is the first person to face trial at the ICC.  Lubanga’s trial commenced in January of 2009 and the defense began presenting its case in January 2010.  Lubanga is accused of conscripting, enlisting, and using child soldiers, which is a war crime.  This witnesses testimony appears directed at the idea of cosncripting child soldiers, though he appears to admit there were child soldiers present to his knowledge, which would appear bad for Lubanga on the charges of enlisting and using child soldiers.

The court sits as a three judge panel, who will have to determine at the close of the case if the Office of the Prosecutor has proved its case beyond a reasonable doubt.  If they make a finding of guilt the trial will then move on to a reparations phase where the victims who have been granted leave to participate in the case will have an opportunity to seek reparations from the victims fund and from any assets of Lubanga’s.  The ICC is permanent court seated in The Hague, Netherlands to hear accusations of war crimes, crimes against humanity and genocide, where the crimes are not likely or capable of being prosecuted by national authorities.

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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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Second ICC trial resumes

By | Published January 26, 2010

The trial of Germain Katanga and Matthieu Ngdolo Chui resumed today at the International Criminal Court in The Hague.  This is the second ICC case to proceed to trial.  Katanga and Chui are charged with war crimes and crimes against humanity as part of the conflict in the Democratic Republic of Congo.  They are charged specifically with an attack on the Bagoro village.

War crimes include attacks by armed combatants on civilians, targeting civilians rather than other combatants is a focus of current war crimes prosecutions.  The Katanga and Chui trial was delayed in December when one of the three judges was injured in a car accident.  The court’s press release on the resumption is available here.

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Third Lubanga Victim Testifies Seeking Reparations

By | Published January 22, 2010

A third child soldier victim of Thomas Lubanga testified about the treatment of young soldiers at the direction of Lubanga.  The victim testified about his abduction and conscription into the Union of Congolese Patriots (UPC in French).  A detailed report on the day of testimony is available here.

The testimony is part of the court’s unique process allowing the victims to participate in the case as it goes on, and to seek reparations.  The reparations will be funded by the victims fund, persons convicted may be directed to contribute by paying fines as well as serving sentences, but the fund will also be supported the state’s parties.

Persons who have a potential claim before the court can seek victim’s status and appointed counsel to represent their interests.  A person who applies may choose their own lawyer at the time of the application, or they will be assigned to the Office of the Public Counsel for Victims, which will handle the case within their pool of cases.

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