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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Katanga Witnesses Testify, then Seek Asylum

By | Published June 6, 2011

Three witnesses who testified for the defense in the International Criminal Court (ICC) cases against Germain Katanga and Matthieu Ngdolo Chui sought asylum in The Netherlands after their testimony.

According to the Katanga trial website,  the witnesses testified that the government of the Democratic Republic of Congo (DRC) was responsible for the Bogoro attack, one of the allegations against the accused.  The case raises difficult questions for the ICC and its obligations to protect witnesses.   The three claim that by testifying against the government of the DRC they have put themselves at risk, and cannot safely return to the DRC.  They have asked the court to keep them in The Netherlands until Dutch authorities rule on the asylum requests.

The court has an obligation to protect witnesses, but cannot provide asylum.  Returning the witnesses to the DRC if they would be harmed would clearly not be in keeping with the court’s obligation to protect witnesses, but there is a limit to how long the court could hold them in custody, and it has no place to put them that is not custody.

The registry and its Victim and Witnesses Unit is trying to determine whether the safety of the witnesses can be adequately guaranteed with a return to the DRC.  The witnesses were in DRC custody when brought to The Hague.  The question to be resolved is whether or not returning them to DRC custody puts them at greater risk.

The case against Katanga and Chui is the second ICC case to go to trial.  Katanga and Chui are accused of war crimes and crimes against humanity. Katanga is alleged to have been the commander of the Patriotic Resistance Force of Ituri, (FRPI) and Chui is alleged to have been the leader of the Nationalist Front of Integrationists (FNI) both fighting against the government of the DRC.

The indictment alleges that Germain Katanga and Mathieu Ngudjolo Chui allegedly jointly committed through other persons, within the meaning of article 25(3)(a) of the Statute:

War crimes:

  1. using children under the age of fifteen to take active part in the hostilities, under article 8(2)(b)(xxvi) of the Statute;
  2. directing an attack against a civilian population as such or against individual civilians not taking direct part in hostilities under article 8(2)(b)(i) of the Statute;
  3. wilful killings under article 8(2)(a)(i) of the Statute;
  4. destruction of property under article 8(2)(b)(xiii) of the Statute;
  5. pillaging under article 8(2)(b)(xvi) of the Statute;
  6. sexual slavery under article 8(2)(b)(xxii) of the Statute.
  7. rape under article 8(2)(b)(xxii) of the Statute

Crimes against Humanity:

  1. murder under article 7(1)(a) of the Statute;
  2. rape under article 7(1)(g) of the Statute.
  3. sexual slavery under article 7(1)(g) of the Statute.

The trial began in November, 2009. The defense began presenting its case in April of 2011.

 

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Katanga and Chui Begin Defense Case

By | Published April 2, 2011

Germain Katanga and Matthieu Ngdolo Chui began presenting their defense last week.  Katanga and Chui are alleged to have committed war crimes and crimes against humanity as the leaders of the Patriotic Resistance Force in Ituri (FPRI) in the Democratic Republic of Congo.

Katanga and Chui are accused in an indictment of the following crimes:

War crimes:

  1. using children under the age of fifteen to take active part in the hostilities, under article 8(2)(b)(xxvi) of the Statute;
  2. directing an attack against a civilian population as such or against individual civilians not taking direct part in hostilities under article 8(2)(b)(i) of the Statute;
  3. wilful killings under article 8(2)(a)(i) of the Statute;
  4. destruction of property under article 8(2)(b)(xiii) of the Statute;
  5. pillaging under article 8(2)(b)(xvi) of the Statute;
  6. sexual slavery under article 8(2)(b)(xxii) of the Statute.
  7. rape under article 8(2)(b)(xxii) of the Statute

Crimes against Humanity:

  1. murder under article 7(1)(a) of the Statute;
  2. rape under article 7(1)(g) of the Statute.
  3. sexual slavery under article 7(1)(g) of the Statute.

Katanga and Chui were brought before the court in February of 2008, their trial began in November of 2009.  The Katanga team has estimated that it would take 122 hours to present its defense witnesses and Chui team estimates 200 hours of court time.  According to the Katanga trial website, if the prosecution takes an equivalent amount of time to cross-examine the witnesses, then the defense case will require 644 hours of court time or about 16 months given the court’s schedule, roughly equivalent to the time the prosecution needed to present its case.

Katanga and Chui were the second case to go to trial at the International Criminal Court (ICC) in The Hague, Netherlands, following the case of Thomas Lubanga Dyilo.  The third case, Jean-Pierre Bemba Gombo from the Central African Republic, started trial in November 2010, another case, against Abdallah Banda and Saleh Jerbo from Darfur has completed confirmation of charges and is now headed for trial.  The latest case, against Callixte Mbarushimana is scheduled for confirmation of charges in July.

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Pre-Trial Chamber Confirms Charge in Darfur Case

By | Published March 8, 2011

Pre-Trial Chamber I of the International Criminal Court (ICC) has issued a finding confirming the charges against Abdallah Banda and Saleh Jerbo.  The court statement said the court  found that Banda and Jerbo should stand trial for three war crimes:

  • violence to life and attempted violence to life;
  • intentionally directing attacks against personnel, installations, material, units and vehicles involved in a peacekeeping mission; and
  • pillaging.

The court included the following information supporting the charges:

These crimes were allegedly committed during an attack led by Abdallah Banda and Saleh Jerbo and other commanders and directed against the compound of the African Union Mission in Sudan at Haskanita on the evening of 29 September 2007. The Chamber found substantial grounds to believe that the attack was directed to personnel, installations, material, units and vehicles involved in a peacekeeping mission in accordance with the Charter of the United Nations which were entitled to the protection afforded to civilians and civilian objects.

Banda and Jerbo appeared voluntarily before the court, following the lead of Bahar Idriss Abu Garda who also appeared voluntarily, but won a dismissal at the confirmation of charges hearing.  The court has also issued indictments against the President of Sudan, Omar Al-Bashir, the Minister of Humanitarian Affairs, Ahmad Harun, and Janjaweed leader Ali Kushayab.  The situation in Darfur was the first case referred to the ICC by the United Nations Security Council.  The second, Libya, was referred last week.

To date, Sudan has refused to turn the indictees over to the court, so the only ones who have appeared are the three who have appeared voluntarily.

The seventy five page decision is available here. There are currently three cases in trial stage at the ICC, the case against Thomas Lubanga Dyilo, a joint case against Matthieu Ngdolo Chui and Germain Katanga, and the case against Jean Pierre Bemba Gombo.  Another accused, Callixte Mbarushimana has recently arrived in The Hague. In addition to the Sudan accused at large, there is one accused from the Democratic Republic of Congo still at large and three from Uganda who have not yet appeared before the court.

There may be other indictments that have not yet been made public.  Indictments in the post-election violence in Kenya case were also released today.

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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 Appeals Chamber Rejects Lubanga Stay, Trial to Resume

By | Published October 9, 2010

The Appeals Chamber of the International Criminal Court (ICC) in The Hague, yesterday announced its decision in the case of Thomas Lubanga Dyilo.  Lubanga’s case had been stayed and he was ordered released by the trial chamber because the prosecutor claimed that it could not follow a court order to reveal the identity of a prosecution intermediary who is alleged to have bribed witness.  The prosecution claimed that it had other obligation which prevented it from revealing the identity of that intermediary despite repeated orders to do so. The appeals chamber is available here.

The appeals chamber, while not adopting the remedy of the trial chamber found the prosecution’s actions violated court orders:

It is undisputed that the Prosecutor did not fulfil the terms of the First Order of Disclosure within that order’s specified time-limit. It is equally undisputed that the Prosecutor did not fulfil the terms of the Second Order of Disclosure within its time limit. The Prosecutor failed to comply with both orders and remained in noncompliance at the time of the Impugned Decision. The Prosecutor does not contend that his non-compliance was caused by any external factor. He was aware of the
orders and voluntarily chose to pursue other actions which he considered to be justified rather than to comply with the orders. The Prosecutor’s non-compliance was deliberate. The Appeals Chamber finds that such wilful non-compliance constituted a clear refusal to implement the orders of the Chamber. To characterise such wilful noncompliance
as anything other than refusal, as the Prosecutor does in his Document in Support of the Appeal, is, at best, disingenuous. At worst, it is an expression of what the Trial Chamber correctly described as “a more profound and enduring concern”,
namely that the Prosecutor may decide whether or not to implement the Trial Chamber’s orders depending on his interpretation of his obligations under the Statute.

The Appeals Chamber concluded that the whatever duties the prosecutor may have, he has an obligation to follow the orders of the trial chamber unless and until they are overturned on appeal.  The Appeals Chamber specifically found that the Office of the Prosecutor is not a co-equal branch of the court but in fact is subject to the orders of the court:

[The Appeals Chamber] finds that the Trial Chamber did not err when it found
that the Prosecutor refused to comply with the First and Second Orders of Disclosure.
The Appeals Chamber also finds that, irrespective of whatever duties the Prosecutor
may have, he is obliged to comply with the orders of the Trial Chamber.

The Appeals Chamber, though agreeing with the problem, determined that the Trial Chamber had not actually lost control over the proceedings and the stay was thus unnecessary. The Appeals Chamber determined that sanctions under Rule 71 will be sufficient for the Trial Chamber to regain control of the prosecutor.  The decision of course implicates the other trial currently before the court, that of Matthieu Ngdolo Chui and Germain Katanga, where the same intermediary’s actions are at issue.

Lubanga is the first person to face trial at the ICC.  He is charged with recruiting and using child soldiers while leader of the Union of Congolese Patriots in the Democratic Republic of Congo. Lubanga was brought to the court in 2o06, his trial commenced in January 2009, the defense case began in January 2010.  There have been many disruptions of the case.  The Open Society blog covering the trial published a timeline of the trial, and also covered the decision of the Appeals Chamber.  The New York Times report on this decision is available here.

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Trial Chamber I Orders the Release of Thomas Lubanga

By | Published July 15, 2010

Trial Chamber I of the International Criminal Court (ICC) has ordered the release of Thomas Lubanga Dyilo, based on the court’s order last week to stay the proceedings.  That order, blogged about here, found that the prosecutions refusal to obey court orders to disclose the identity of witnesses to the defense prevented a fair trial of Mr. Lubanga.  The International Criminal Law Bureau reported on the release order here. The court had previously admonished the prosecution for late disclosure as described here.

The order of release will not take effect until the 5-day appeal period expires, if the prosecution files its appeal within five days, the detention may continue pending the resolution of the appeal.  The ICC press release, available here, states: “According to the judges, an accused cannot be held in preventative custody on a speculative basis, namely that at some stage in the future the proceedings may be resurrected.”

Lubanga was the reputed leader of the Union of Congolese Patriots in the Democratic Republic of Congo.  He is charged with war crimes including the conscripting and using of child soldiers.  Lubanga was the first person to be brought before the court and made his first appearance in 2007.  His trial commenced in The Hague in January, 2009, and the defense began presenting its case in January, 2010. The Lubanga trial has previously been suspended several times, twice  for transcription errors, for the appeals chamber to consider adding additional charges, and for the prosecution to comply with disclosure orders.  It appears the court has no intention of lifting the current stay.

The other case currently in trial, Germain Katanga, and Matthieu Ngdolo,Chui also from the Democratic Republic of Congo has not been stayed.  It is not clear what effect the ruling will have on that case, or on the other case awaiting trial, Jean-Pierre Bemba Gombo from the Central African Republic.

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Prosecution Asks to Declare its Witness as Hostile in Katanga and Chui Trial

By | Published February 26, 2010

At the trial of Germain Katanga and Matthieu Ngdolo Chui for war crimes and crimes against humanity at the International Criminal Court in The Hague, the prosecution asked that its witness be declared hostile.  The prosecutor reportedly noticed “inconsistencies” and asked the court to declare the witness as hostile.  The court determined that the inconsistencies could be resolved without declaring the witness as hostile and allowed questioning to continue.  A detailed report on the testimony is available here.

Katanga and Chui are the second case to go to trial at the International Criminal Court in The Hague, Netherlands.  They are charged with war crimes and crimes against humanity in the Democratic Republic of Congo.  They are accused of attacking civilian targets, rape, pillaging, using child soldiers and sexual slavery among other charges.  Katanga and Chui had led rebel armies in the Democratic Republic of Congo, but had signed peace agreements with the government of the DRC and had joined the Congolese army at the time they were arrested and brought to The Hague.  Their trial began on November 9, 2009.

The situation in DRC was referred to the ICC by the Congolese government.

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Lubanga Trial Takes Two Week Break

By | Published February 21, 2010

The International Criminal Court trial of Thomas Lubanga Dyilo was suspended this week for a two week trip for the defense to the Democratic Republic of Congo for important “research,” presumably this means further investigation into the previous allegations that prosecution witnesses lied  or were paid to lie about being child soldiers.  The trial was earlier suspended on Tuesday because of noted differences in the official English and French transcripts.  The reporting from the Open Society Institute, available here, does not make clear whether or not the court had arrived at a resolution of the transcription problem.

The court also ruled that the Lubanga defense could share information on its investigation with the defense team of Germain Katanga, whose trial, along with co-defendant Matthieu Ngdolo Chui was the second trial to start at the ICC. The trial opened on November 26, 2009, and my summary of the case and its opening is available here. Lubanga is the first person to face a trial at the ICC.  Lubanga, Katanga, and Chui were rebel leaders in the Democratic Republic of Congo, and are charged with war crimes, and crimes against humanity.  There are four witnesses who are scheduled to testify for the prosecution in both cases, and the defenses wished to share the information they had collected in their investigations.  Judge Adrian Fulford ruled there was nothing to prevent such sharing between the teams.

Lubanga is accused of using child soldiers in his Union of Congolese Patriots, and Katanga and Chui are charged with  using child soldiers, attacking civilian targets, destruction of property, rape and sexual slavery as war crimes, they are also alleged to have committed crimes against humanity, including murder within the court’s jurisdiction, rape and sexual slavery. Another accused from the DRC, Bosco Ntaganda is still at large.

In the cases of the Sudan, one accused, Bahar Idriss Abu Garda voluntarily appeared at the court, and the charges against him were not confirmed.  A summary of that action is available here.  Three more accused from Sudan remain at large.  In the Uganda case there are four accused, all of whom are still at large.  In the case involving the Central African Republic, there is one accused, Jean-Pierre Gemba, whose trial is expected to begin April 27, 2010.

The International Criminal Court sits in The Hague, Netherlands and is intended to be a permanent court to hear cases of war crimes, crimes against humanity, and genocide when those cases are not resolved by national authorities.  Thomas Lubanga was the first person brought before the court, he was arrested in 2007, and his trial began in January 2009, the defense began presenting its case in January 2010.  There are also victims who have been given a limited right to participate in the case, and then to seek reparations if they can establish their right to do so.

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