International Criminal Court CLE in Minneapolis, April 18, 2012

By | Published April 9, 2012

John L. Fossum, along with former U.S. Ambassdor Robert Flaten, United States District Court Judge John Tunheim, Assistant United States Attorney John Docherty and Professor Barbara Frey of the Human Rights Program at the Institute for Global Studies at the University of Minnesota.  Details of the program, registration information, and bios of the speakers are available here.

Topics include the genocide in Rwanda, the International Criminal Court, a History of International Criminal Law, the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda.  Speakers will also be addressing war crimes, crimes against humanity and genocide generally.

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Vanuatu Ratifies ICC Treaty

By | Published December 6, 2011
Green Countries Are the Member States of the International Criminal Court

Green are the State's Parties of the ICC, Gold represents the states that have signed the treaty but not ratified it.

Vanuatu has now ratified the International Criminal Court (ICC) Treaty, becoming the 120th nation to acceded to ICC jurisdiction. The ICC has jurisdiction to prosecute war crime, crimes against humanity and genocide which occurs within the territory of the nations which have ratified the treaty, or committed by nationals of those nations, or when referred to court by the United Nations Security Council.

The court has ongoing prosecutions in the Democratic Republic of Congo, the Central African Republic, the Darfur region of Sudan, Ivory Coast, and involving post election violence in Kenya.  There are also indictments from Uganda, though none of indictees, all members of the Lord’s Resistance Army have appeared before the court.  The court has also issued indictments from Libya, upon referral of the Security Council, though one of the indictees, Muammar Qadafi was killed, and the other two are currently in custody in Libya, and may not be transferred to the court.  The past president of Ivory Coast, Laurent Gbagbo has made his first appearance in the court this week, though Ivory Coast is not a signatory to the treaty, it has accepted ICC jurisdiction.

 

 

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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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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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U.S. State Department Official Describes “Positive Engagement” with the ICC

By | Published November 14, 2010

A U.S. State Department official has described the current administration‘s position on the International Criminal Court (ICC) as “positive engagement.”  The Bush administration had been openly hostile and sought agreements from other countries that no U.S. nationals would be transferred to the court and further threatened that it would use military force if any U.S. nationals were brought to the court.  Human Rights Watch described the law containing this threat,  the American Servicemembers Protection Act (ASPA) of 2002 as “The Hague Invasion Act” for its provision allowing such a use of force.

The Clinton administration had participated in the drafting of the Rome Treaty, but did not support the final version.  President Clinton signed the treaty on December 31, 2000, the final day to allow for continued participation in negotiating changes to the treaty.  President Clinton did not send the treaty to the Senate for ratification, and in a signing statement recommended that his predecessor not do so either,  because the ICC prosecutor was not “accountable” to the Security Council.  It appears that the main U.S. objection was that a member state, in particular the United States, could not veto or otherwise stop a prosecution.

In 2002, when the court’s jurisdiction began, the Bush administration sent a notice to the court withdrawing from the treaty.  A chronology of the U.S. attitude towards the court is offered by the American NGO Coalition for the International Criminal Court (AMICC). The Bush administration sought bi-lateral agreements with other nations promising not to transfer U.S. citizens to the ICC if indicted, apparently tying the signing of such an agreement to aid.  The Coalition for the International Criminal Court (ICCNOW) has offered a list of some of those agreements here.

There have been statements from U.N. Ambassador Susan Rice, signaling a change in policy towards the ICC, and Secretary of State Hilary Clinton has described it as “a great regret” that the U.S. is not a state’s party. It is clear that the U.S. is not as openly hostile to the ICC as the Bush administration. Though it seems unlikely the administration will expend any political effort or capital on seeking ratification of the treaty when it is clear that would not be 66 votes to ratify.  It is not clear how many Senators would support ratification, there are no public statements of support by any U.S. Senators that have been located in preparing this post.

The purpose of the ICC is to have a permanent international court to prosecute mass atrocity cases, those crimes against humanity, war crimes and acts of genocide that are not or cannot be effectively prosecuted by national authorities.  The principle of complementarity, preventing prosecution by the ICC when a national authority has jurisdiction has been sufficient for the 114 nations which have ratified the treaty.  The ICC is intended as a court of last resort, not to prosecute crimes generally.

The Rome Statute, founding document of the ICC, does not create new obligations, but rather creates an enforcement mechanism for violations of the Geneva Conventions of 1949, ratified by 194 countries, including the U.S.  The newest addition to the statute is a definition of the crime of aggression, or committing aggressive war.  The Nuremberg trials after World War II included a count of waging aggressive war and the U.N. charter includes an obligation of the member states, including the U.S. not to wage aggressive war.  The ability of an international court to enforce treaty obligations by prosecution appears to be the area of concern which prevent U.S. support for the ICC.

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Human Rights Watch Asks Kenya to Bar Entry to Bashir

By | Published October 26, 2010

Human Rights Watch along with other NGOs have urged that Kenya refuse entry or arrest Sudanese President Omar Al-Bashir.  Bashir is the first sitting head of state indicted by an International Criminal Tribunal.

The International Criminal Court (ICC) in The Hague, Netherlands has indicted Bashir for war crimes and genocide in Darfur, and issued two warrants for his arrest. He traveled to Kenya earlier this year, but was not arrested.  Kenya is a signatory to the Rome Statute, the founding treaty of the ICC.  All state parties of the ICC have agreed to cooperate with the ICC and arrest the persons sought by the ICC.

Sudan is not a signatory to the ICC treaty and has refused to surrender its president or the other ICC accused from its territory.  The situation in Sudan was referred to the ICC by a vote of the U.N. Security Council.

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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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ICC Prosecutor Tells Court Kenya Violence Directed by Officials

By | Published March 4, 2010

The Office of the Prosecutor of the International Criminal Court has told the pre-trial chamber that the post-election violence in Kenya is traceable to specific officials.  The prosecutor reported the violence was directed by specific “senior political and business leaders.”

Kenya may be the fifth situation for the ICC, the investigation is limited to the post election violence.  The ICC has jurisdiction over cases in countries which are signatories to the Rome Statute, the treaty which created the court, or where the case has been referred by the U.N. Security council.  The security council referred the situation in Sudan.  The situations in Uganda, Democratic Republic of Congo,  and Central African Republic were referred by the respective governments.  The government of Kenya has consented to this investigation.  The ICC has jurisdiction only when the cases cannot or will not be prosecuted by the national government.

The ICC’s press release is available here. The ICC has jurisdiction over war crimes, crimes against humanity, and genocide.

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Appeals Chamber Reverses Pre-Trial Chamber in Bashir Warrant Decision.

By | Published February 3, 2010

The International Criminal Court made history in March of 2009 by issuing an arrest warrant for a sitting head of state, Omar Al Bashir, the President of Sudan. The warrant for his arrest was based on allegations of war crimes and crimes against humanity. The pre-trial chamber though declined to issue a warrant for the charge of genocide, finding at the time that the prosecutor had not established sufficient evidence of genocidal intent.

Today the appeals chamber of the ICC issued a decision, available here, determining that the pre-trial chamber erred by using the wrong standard for making its determination. The pre-trial chamber decided that since genocidal intent was only one of the reasonable inferences based on the evidence submitted and that a warrant should not issue for genocide. The appeals chamber reasoned that the pre-trial chamber read in too high a requirement when reading the statute’s requirement that a warrant of arrest required “reasonable grounds to believe” that a crime within the jurisdiction of the court occurred.

The appeals chamber said the pre-trial chamber’s determination effectively required the prosecutor to establish its case beyond a reasonable doubt and “disprove any other reasonable conclusions.”  The appeals chamber determined that this effectively required a trial standard of proof at the issuance of an arrest warrant and did not recognize the statute’s escalating standards of proof, “reasonable grounds to believe” at the warrant stage, “substantial grounds to believe” at the confirmation of charges stage and “beyond reasonable doubt” for a conviction at trial.

The appeals chamber did not issue a warrant based on charges of genocide but sent the matter back to the pre-trial chamber for a determination based on whether or not there are reasonable grounds to believe that Bashir and the Government of acted with genocidal intent in Darfur.  The court’s press release summary of the decision is available here.

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