U.N. Security Council Refers Libya to the ICC

By | Published February 28, 2011

The United Nations Security Council has referred the ongoing situation in Libya to the prosecutor of the International Criminal Court, (ICC) for investigation into crimes against humanity for the attacks against the civilian population.  This is only the second referral to the ICC from the Security Council, the first was the genocide in Darfur, which led to the first international criminal indictment for a sitting head of state, the indictment against Omar Al-Bashir, the President of Sudan, Bashir has now been indicted for war crimes, crimes against humanity, and genocide.

The Security Council decision though was not without its critics.  Part of the referral specifically exempts foreign mercenaries from countries which are not signatories to the ICC treaty from being prosecuted.  Since many of the reported attacks were carried out by foreign mercenaries from other African countries, it may effectively grant immunity to those players.  Individual soldier may not likely be prosecuted by the ICC anyway, it is the political and military leadership, not line soldiers, who are the intended targets of the court.

Below are the key paragraphs of the referral:

The Security Council,
….
Acting under Chapter VII of the Charter of the United Nations, and taking measures under its Article 41,
….
ICC referral
4. Decides to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court;
5. Decides that the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor;
6. Decides that nationals, current or former officials or personnel from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State;
7. Invites the Prosecutor to address the Security Council within two months of the adoption of this resolution and every six months thereafter on actions taken pursuant to this resolution;
8. Recognizes that none of the expenses incurred in connection with the referral, including expenses related to investigations or prosecutions in connection with that referral, shall be borne by the United Nations and that such costs shall be borne by the parties to the Rome Statute and those States that wish to contribute voluntarily;

At least one commentator has pointed out that, in the Security Council, non members of the ICC, UN Security Council permanent members China and the U.S. have been willing to leave the cost of the ICC prosecutions to the 118 state parties of the ICC. The open questions here include, when will the prosecutor act?  Who might be indicted other than Muammar Qadafi?  Will Qadafi or any other member of the Libyan government ever actually appear before the court? What credible information will the court be able to produce about the events in Libya, given the lack of access to the country?

It seems unlikely the referral will change the course of current events in Libya, but will it have the intended effect of deterring other crackdowns in the future, or assist in bringing this one to an end?  Will there be any public response to the excepting of foreigners?  There are a lot of questions that are raised by this referral, and only time can give the answers.

As one commentator pointed out, this referral is a test of the ICC and its ability to prosecute crimes against humanity.  He argues the prosecutor will need to respond quickly to be credible, though the prosecution would also need time to investigate and build its case.

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Mbarushimana Confirmation of Charges Hearing Set for July 4

By | Published February 3, 2011

The confirmation of charges hearing for Callixte Mbarushimana has been scheduled for July 4, 2011.  Mbarushimana was arrested October 11, 2010 in Paris and transferred to The Hague in January 25, 2011.  The press release from the International Criminal Court, (ICC) describes the case this way:

According to the warrant of arrest, Mr Mbarushimana is allegedly criminally responsible, under article 25(3)(d) of the Rome Statute of the ICC, for five counts of crimes against humanity (murder, torture, rape, inhumane acts and persecution) and six counts of war crimes (attacks against the civilian population, destruction of property, murder, torture, rape and inhuman treatment).

These crimes were allegedly committed in the context of an armed conflict which waged, in the Kivu Provinces of the Democratic Republic of the Congo (DRC), from 20 January to 25 February 2009, between the Forces Démocratiques pour la Libération du Rwanda – Forces Combattantes Abacunguzi (FDLR) and the Forces Armées de la République Démocratique du Congo (FARDC) together with the Rwandan Defence Forces, and from 2 March to 31 December 2009, between the FDLR and the FARDC, at times in conjunction with the United Nations Mission in the Democratic Republic of the Congo (MONUC). A series of attacks, both widespread and systematic, were allegedly carried out on a large scale by FDLR troops in the period between January and September 2009, against the civilian population of North and South Kivu.

Mr Mbarushimana is alleged to have been, since July 2007, the Executive Secretary of the FDLR. Pre-Trial Chamber I found that there are reasonable grounds to believe that the FDLR leadership decided to launch an offensive targeting the civilian population of the Kivus in order to ultimately obtain political concessions, and that an international campaign to extort concessions of political power for the FDLR was put in place, as part of the implementation of the common plan. The Chamber also found that there are reasonable grounds to believe that Mr Mbarushimana, as Executive Secretary of the FDLR “Steering Committee” (Comité Directeur), personally and intentionally contributed to the common plan, organising and conducting the above-mentioned international campaign by regularly using international and local media channels.

The situation in the DRC was referred to the Court by the Government of the DRC in April 2004. The Prosecutor opened an investigation in June 2004. Besides the case against Callixte Mbarushimana, three other cases are currently ongoing in the context of this situation: The Prosecutor v. Thomas Lubanga Dyilo, The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chuiand The Prosecutor v. Bosco Ntaganda. The Office of the Prosecutor is also conducting investigations in four other situations: Uganda; the Central African Republic; Darfur, Sudan; and Kenya.

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Mbarushimana Arrives in The Hague

By | Published January 26, 2011

Callixte Mbarushimana, accused of controlling troops in the Democratic Republic of Congo (DRC) from Paris has been transferred to the International Criminal Court (ICC) detention facility in The Hague, Netherlands. Mbarushimana is originally from Rwanda, and has lived in France for several years, but was the Executive Secretary for the Democratic Forces for the Liberation of Rwanda, (FDLR) and is accused of six counts of war crimes.  Mbarushimana was arrested October 11, in Paris, contested his deportation to The Hague and was transferred by France yesterday. This case was originally blogged about on this site at his arrest.

This case presents interesting issues in its assertion of command responsibility.  Mbarushimana is alleged to have directed the work of the FDLR from Paris, and is accused of war crimes including rape.  The FDLR operates in the Kivus region of Eastern Congo and is alleged to have committed atrocities, including rape.  The Office of the Prosecutor summarized the charges in a fact sheet at his arrest:

[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.

Mbarushimana will next have a preliminary or arraignment hearing, followed by a confirmation of charges hearing where the court will determine if there is sufficient evidence to support the charges.  Likely issues include the evidence of his control, knowledge and direction of the conduct of troops in Africa when he resided in France.

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Lubanga Disclosure Still an Issue

By | Published December 26, 2010

Trial Chamber I at the International Criminal Court (ICC) in The Hague has issued another decision in the ongoing battle over disclosures by the prosecution in the trial of  Thomas Lubanga Dyilo.  Lubanga’s trial commenced in January of 2009, the defense began its case in January 2010.  Testimony was to have been completed by now, but the chamber issued another decision on December 13, 2010 on disclosure.  The prosecution sought court approval for the names and evidence it has already withheld as “work product.”  The court did order the disclosure of some names and information previously withheld from the defense.

The prosecution had argued the notes of the investigators were not discoverable as they were work product.  The court previously issued a ruling evaluating the disclosure obligations of the Office of the Prosecutor in November, shortly after a ruling that prosecutor had violated its obligations.  In July, the trial chamber stayed the proceedings finding that a “fair trial … is no longer possible.” In October  the appeals chamber found that the trial chamber had not exhausted its power to sanction the prosecution for non-disclosure.  The fact that the prosecution did not disclose information it was ordered to disclose was not in dispute, the prosecution claimed it could not disclose the information because of its obligations to the governments and organizations that had provided the information.

The prosecution had been admonished by the trial chamber for failure to comply with disclosure orders in February 2010 for disclosures that should have been made “no later than December of 2009.”  The ongoing disclosure issues in this case highlight a conflict in the concept of the court and the obligations of the parties.  The Office of the Prosecutor is a semi-diplomatic office with obligations to the U.N. and nations which have provided information.  But in order to guarantee a fair trial it must also provide access to that information to the defense. The conflict has been that even when ordered by the court to disclose information, the prosecution argues that it’s diplomatic obligations prevent it from doing so.  Can the court offer fair trials without full disclosure?  The trial chamber has argued that it cannot but was overruled by the trial chamber with an eye towards greater sanctions on the prosecution.

Lubanga is the first case go to trial at the ICC.  He was brought before the court in 2006.  He is alleged to have been the leader of the Union of Congolese Patriots and is accused of conscripting and recruiting child soldiers in violation of the Geneva Conventions and the Rome Statute, the founding treaty of the ICC.  Lubanga is a citizen of the Democratic Republic of Congo.  The ICC has jurisdiction in the 114 nations that have ratified the Rome Treaty, or over their citizens who commit war crimes, crimes against humanity or genocide as defined by international law.

If there is a conviction in this case, the court could move on to the reparations phase where the victims of war crimes or crimes against humanity could seek orders of the court to make reparations from the funds of Lubanga, or from the trust fund for victims.  The ICC is the first international tribunal to offer a process for reparations and what form those reparations orders will take is still an open question.

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Updates on Kenya Cases at the ICC

By | Published December 11, 2010

The Voice of America (VOA) has posted an article about the International Criminal Court (ICC) indictments in the post-election violence in Kenya arguing the Office of the Prosecutor (OTP) will have problems delivering the indictments by December 17 as previously announced.  The VOA says that the OTP is having difficulty in getting the statements of security chiefs who are insisting they should give their statements to Kenyan judges not to OTP investigators.

The ICC has exercised jurisdiction over the 2008 post-election violence in Kenya with the approval of the Kenyan government.  The current difficulties indicate that there is at least some dissent in Kenya, and many think the prosecutions should occur in Kenya and not in The Hague.

The Episcopal Church in Kenya has urged cooperation with the ICC.  Reuters reports the OTP remains on schedule to issue indictments against at least six accused in the next week.

The ICC has jurisdiction to investigate and prosecute crimes against humanity, war crimes and genocide in the 114 countries that have ratified the ICC treaty, or committed by their nationals if those crimes can not or will not be prosecuted by national authorities.  Kenya has accepted that crimes within the jurisdiction of the court occurred in  Kenya in 2008 and invited the court’s investigation.  People who were harmed as victims in the post-election violence may be eligible to participate in the cases as victims and ultimately seek reparations from those convicted or from the Trust Fund for Victims.

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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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Trial Chamber III Restricts the Right of Victims to Select Counsel

By | Published December 4, 2010

Trial Chamber III of the International Criminal Court (ICC), currently hearing the case against Jean-Pierre Bemba Gombo (Bemba)  has ordered that all victims seeking to participate at trial will be represented by one of two lawyers designated by the court.  On November 18, the court ruled on the applications of the first 772 victims seeking to participate at trial and authorized 624 them to proceed to trial. An additional 653 victims have filed requests to participate in the trial, those applications are still pending.

In an order issued just prior to the beginning of trial, the chamber re-iterated the decision that the victims would be represented by two lawyers at trial, and determined that the 653 victims whose applications have not yet been decided would be represented by the Office of Public Counsel for Victims (OPCV):

On 10 November 2010, the Chamber issued it “Decision on common legal
representation of victims for the purpose of trial” whereby it, inter alia,
authorised the Registry to designate two common legal representatives from the
Central African Republic (“CAR”) to represent the totality of the victims allowed
to participate in the case and recalled that where it is appropriate, the OPCV may
appear before the Chamber in “respect of specific issues.”

Those two representatives, Marie-Edith Douzima Lawson and Assingambi Zarambaud are now the sole lawyers authorized to appear at trial on behalf of the 624 victims whose applications have been approved and of those whose applications are eventually approved.  This of course, raises the question, can two lawyers effectively represent more than a 1,000 victims in a single case during trial?

As noted by the court, the victims have a right to participate in the trial:

The Trial Chamber notes that, pursuant to Article 68(3) of the Rome Statute,
“the Court shall permit the victims to present their views and concerns 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.”

Can two lawyers, engaged full time in trial have time to consult with more than a thousand victims and then timely present their “views and concerns” to the court?

The court noted that many of the victims have not selected counsel, or have indicated a willingness to be represented by the OPCV or by one of the two lawyers selected to represent victims at trial.

the Chamber is of the view that, in the present circumstances and in
light of the time constraints, it is to the benefit of the Applicants to be represented
by the OPCV in court at the commencement of the trial until a decision on their
applications to participate in the trial proceedings is issued, at which point they
will be represented by one of the two common legal representatives designated
by the Registry.

The chamber does not specifically address the question of what happens if a victim selected their own counsel who is not the OPCV or one of the selected representatives, but presumably this order means that the victim’s selected counsel may not appear at the trial to present that victim’s “views and concerns.”

Has the court gone too far in restricting victim’s right to counsel?  It does appear that the court is concerned that victims slow down the process and is looking for ways to expedite the cases and limit victim participation.  Because the court and the process is new, the answers are not clear, but it seems unlikely that two lawyers, even with a small staff, engaged full time in a mass atrocity trial could effectively communicate with 1,000 or more clients and seek their input on the case.  Whether this case will be a model for future ICC cases or its approach will be scrapped remains to be seen.  The question for the chamber should be how seriously do we take the right of the victims to participate, and what steps should be taken to ensure adequate and direct representation of the victims? Following the trial the victims have an opportunity to seek reparations for the harms they have suffered, will they still be restricted to one of two lawyers at the reparations stage?

The ICC prosecutes cases of war crimes, crimes against humanity and genocide.  Are they focused on getting the cases tried and over with, on building a record of the alleged crimes, on a fair trial for the accused, or on justice for the victims?   Certainly speed of the trial should be last consideration, not the first.

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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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Q&A on the Bemba Trial

By | Published November 22, 2010

Human Rights watch has posted a Q & A section on the opening of the Bemba trial, the page is available here. Among the facts noted, more than 1200 victims have submitted applications to participate.  Of those the court has approved at least 135.  Curiously, the court has limited the legal representatives of the victims to two lawyers and two assistants, at least at the trial phase.  Whether this will provide effective representation remains to be seen.

Jean-Pierre Bemba Gombo was arrested in 2008, the trial began today at the International Criminal Court (ICC).  He is charged with war crimes and crimes against humanity including rape, murder and pillaging.  A representative of the Office of the Prosecutor has blogged about the trial here. The main allegation against Bemba is the failure as Commander of Chief of the Movement for the Liberation of Congo (MLC) to prevent his troops from engaging in a massive campaign of sex crimes. MLC was based in the Central African Republic, though Bemba is a citizen of Democratic Republic of Congo (DRC).

Victims in cases before the ICC have a unique opportunity to participate in cases as they go on.  They can examine witnesses, offer evidence and upon conviction seek an order for reparations.  The reparations process is unprecedented in international criminal justice. How it will be enacted and what the victims may receive is yet to be determined.  The first case, against Thomas Lubanga Dyilo, of the DRC has not finished testimony.  If there is a conviction, it would then move to the reparations stage.  Though appeals may have to be resolved first.

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Bemba Trial to Open

By | Published November 21, 2010

The trial of Jean-Pierre Bemba Gombo is scheduled to begin at the International Criminal Court (ICC) tomorrow, November 22, 2010.  Bemba’s case will be the third trial at the ICC and he is the fourth accused to face a trial.  Bemba is also the first case from the Central African Republic, although he is a citizen of the Democratic Republic of Congo (DRC).  The two cases currently in trial arose in the DRC.

Bemba is accused of murder and rape as crimes against humanity and murder, rape and pillaging as war crimes. Bemba is alleged to have been the President and Commander in Chief of the Movement for the Liberation of the Congo (MLC).  As commander, he can be responsible for the actions of his subordinates if he knew, or had reason to know they were targeting civilians or committing war crimes or crimes against humanity and did not take steps to prevent or end the misconduct.

Bemba was arrested in Belgium in May of 2008 and transferred to The Hague in July of that year.  He had a confirmation of charges hearing in January 2009,in the decision from that hearing, in July of 2009, several counts of torture were dismissed as well as counts involving “outrages against personal dignity” as a war crime.

The court issued its finding on Mr. Bemba’s command responsibility:

Mr Jean Pierre-Bemba neither took the necessary nor the reasonable measures within his material ability to prevent or to repress thecrimes committed by his MLC subordinates throughout the five-month period of the intervention in the CAR. The evidence shows that a genuine will to take the necessary and reasonable measures to protect the civilian population by preventing crimes or even repressing their commission was lacking. Mr Jena-Pierre(sic)  Bemba’s failure to fulfil his duties to prevent crimes increased the risk of their commission by the MLC troops in the CAR at all times relevant to the Case. In reaching this finding the Chamber has given particular weight to Mr Jean-Pierre Bemba’s material ability
to prevent and repress crimes; the availability of a functional military judicial system within the MLC through which he could have punished crimes committed and prevented their future repetition during the period of intervention; the absence of any measures with respect to the crimes committed by MLC troops between November 2002 and January 2003 which increased the risk of their future occurrence; and the length of time taken to announce the troop withdrawal and to
issue an order to this effect, which led to the continuing commission of the crimes at least between mid January to mid February 2003.

Bemba faced short time from arrest to confirmation of charges to start of trial than the prior cases.  It appears the court intends to continue processing such cases rapidly.

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