Tag Archives: ICC

The International Criminal Court, seated in The Hague, The Netherlands

Libya Cases not Going to ICC

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.

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.

Court Establishes Reparations Process

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).

Lubanga Found Guilty

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.