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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Libya Cases not Going to ICC

By | Published September 26, 2012

Earlier this month, Mauritania returned Libya’s former head of intelligence, Abdullah al-Senussi, to Libya for prosecution. Saif Al-Qadafi, son of Muammar Qadafi was captured in Libya, and the current regime has declined to surrender him to the International Criminal Court. (ICC). In February of 2011, the UN Security Council referred the situation in Libya to the ICC, and the Qadafis and al-Senussi were indicted.

As previously described in this blog:

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.

Libya has recently announced a delay in Saif Qadafi’s trial, indicating that Qadafi and al-Senussi would be tried together.  Amnesty International and other groups have argued that the two should go to the ICC for trial.  Libya’s standoff with the ICC appears to have resulted in a win for the current government of Libya.  The ICC has apologized for the conduct of attorneys sent to meet with Saif Qadafi, resulting in their release. The arrest of ICC lawyers, and the refusal to surrender the accused, have led some to question whether Qadafi can have a fair trial in Libya.  Maybe the better question for Qadafi and al-Senussi will be whether or not the world will care whether or not they have a fair trial, or all are satisfied with a show trial for the two.

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Saif Qadafi to Stay in Libya

By | Published August 22, 2012

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.

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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 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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ICC Confirms Charges Against Four of the “Ocampo Six”

By | Published January 25, 2012

A pre-trial chamber of the International Criminal Court (ICC) announced it’s decision this week confirming the charges against four of the six persons indicted for crimes against humanity in post election violence in Kenya.

The case has had some unusual turns.  Kenya originally supported the investigation, but when government officials were indicted, argued the case should go back to Kenya for investigation and charges. The court decided that the cases should go forward, and that Kenya did not have the infrastructure or means to ensure fair trials.

At the confirmation of charges hearing, one accused, Uhuru Kenyatta, took the unusual step of testifying in his defense. His testimony apparently did not convince the judges to dismiss the charges, as his case was continued for trial.

The four whose charges were confirmed are: Deputy Prime Minister Uhuru Muigai Kenyatta; Head of Public Service Francis Kirimi Muthaura; former Cabinet Minister William Samoei Ruto; and radio journalist Joshua arap Sang.

Dismissed from the cases were: former police commissioner Maj. Gen. Mohammed Hussein Ali, and former Minister of Industrialization Henry Kiprono Kosgey.  In many African media outlets, the six indictees have been referred to as the “Ocampo Six” a reference to Luis Moreno-Ocampo, prosecutor of the ICC.

Judge Hans Peter Kaul dissented from the decision, arguing that the cases do not belong at the ICC and do not come under the jurisdiction of the statute.  He said this in the Ruto, Kosgey and Sang case:

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 made similar points in his dissent in the case against Keyatta, Muthaura and Ali, questioning not just admissibility, but whether or not the actions of “the Mungiki gang” constitute the actions of “an organization” within the meaning of the Statute.  Judge Kaul argues that finding such a gang responsible for crimes against humanity leaves the court open to the obligation of prosecuting organized crime world wide.

Judge Kaul’s dissents raise many interesting points, about the thoroughness of the review at a confirmation of charges hearing, the defense right to present a defense at such a hearing, the defense right to challenge admissibility, the prosecution’s duty to investigate exculpatory information, and the presumptions of the court in determining whether or not to confirm charges.  How the court addresses those criticisms may well shape it going forward.

The court uses an escalating standard of review, reasonable cause to indict, probable cause to confirm the charges, and proof beyond a reasonable doubt to convict at trial.

 

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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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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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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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