Feb
11

Lubanga Defense Witness Testifies for Third Day at the ICC

Lubanga defense witness Claude Nyeki Django testified for the third day that Thomas Lubanga’s Union of Congolese Patriots (UPC) did not draft child soldiers.  The proceeding stopped for a time because Django broke down on the stand for a second time.  After meeting with a psychologist from the Victims and Witness Unit  (VWU) of the International Criminal Court (ICC), Django continued his testimony.  Curiously, Django said children voluntarily joined Lubanga’s army, which may not be a very good defense.  The public portions of Django’s testmony are recounted on Day One, Day Two and Day Three of his testimony.

Django’s testimony is essentially that he never served in the UPC, and was never in the armed forces at all, but was lured into a group who claimed that he had been a child soldier and he was portrayed as such by this group.

Thomas Lubanga Dyilo was the leader of the UPC in the Democratic Republic of the Congo.  He was brought before the court in 2007, and is the first person to face trial at the ICC.  Lubanga’s trial commenced in January of 2009 and the defense began presenting its case in January 2010.  Lubanga is accused of conscripting, enlisting, and using child soldiers, which is a war crime.  This witnesses testimony appears directed at the idea of cosncripting child soldiers, though he appears to admit there were child soldiers present to his knowledge, which would appear bad for Lubanga on the charges of enlisting and using child soldiers.

The court sits as a three judge panel, who will have to determine at the close of the case if the Office of the Prosecutor has proved its case beyond a reasonable doubt.  If they make a finding of guilt the trial will then move on to a reparations phase where the victims who have been granted leave to participate in the case will have an opportunity to seek reparations from the victims fund and from any assets of Lubanga’s.  The ICC is permanent court seated in The Hague, Netherlands to hear accusations of war crimes, crimes against humanity and genocide, where the crimes are not likely or capable of being prosecuted by national authorities.

Feb
08

International Criminal Court Finds For Abu Garda

The Interational Criminal Court, pre-trial chamber I today ruled that the Office of the Prosecutor had not provided sufficient evidence to continue the case against Bahar Idriss Abu Garda for trial.  Abu Garda was the first case from the Sudan to come before the court. He appeared voluntarily with counsel in May of 2009 and has been in The Hague, though not in custody since then.

Abu Garda was charged with three war crimes, violence to life, directing attacks against peacekeeping forces, and pillaging.  The court found there was not sufficient evidence presented at the confirmation of charges hearing to require a trial.

The International Criminal Court uses a three stage process, a warrant and indictment can issue if there are “reasonable grounds” to believe the person committed war crimes or crimes against humanity.  Once the accused is before the court, then there is a confirmation of charges hearing where the accused can participate and challenge the evidence, if after that hearing the court determines there is “substantial grounds” to believe the person is guilty of the crimes charged then a trial may be held where the prosecutor must prove the case beyond a reasonable doubt.

It was at this second stage where the court found for Abu Garda and essentially dismissed the charges.  This hearing, the equivalent of a probable cause hearing in an American court case may end the case against Abu Garda, although the prosecutor has the right to appeal the determination, and may ask to reopen if they can provide new evidence of Abu Garda’s involvement or command responsibility for the alleged war crimes.

The court’s press release regarding the decision is available here, the order itself is here, and the court’s fact sheet on the case is located here.  Abu Garda is the fifth person brought to the court to face charges of war crimes, and the first to win the confirmation of charges hearing.

The court has previously confirmed charges against Thomas Lubanga of the Democratic Republic of Congo and against Germain Katanga and Matthieu Ngdolo Chui also of the Democratic Republic of Congo.  Lubanga’s defense team is currently presenting its case, and Katanga and Chui are being tried together, their trial recently resumed.  The court has also confirmed the charges against Jean-Pierre Bemba Gombo of the Central African Republic who is awaiting the start of trial.

The president of Sudan, Omar Hassan Ahmad Al Bashir and a cabinet official, Ahmad Harun have also been indicted by the court for war crimes as has a rebel leader, Ali Kushayb.  None of them has yet appeared before the court to face the charges.

Feb
03

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

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

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

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

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

Jan
31

Nicholas Kristof on War Crimes in The Congo

Nicholas Kristof of the New York Times posted in his column today stories of the horrible war crimes being inflicted in the Democratic Republic of Congo.  The column, available here, describes the rape of young girls, their being abducted to serve as sex slaves for the rebel armies, and the terror the civilians live in because of the ongoing civil war.

Thomas Lubanga of the DRC is currently on trial at the International Criminal Court for using child soldiers in the conflict.  Charges of rape, abduction and child soldiers were considered, but the court determined the attempt to amend the case was too late and the prosecution was limited to the facts alleged at the confirmation of charges hearing.  Recently the trial resumed with the defense case, and some victims who are seeking reparations testified in support of their case.

The Germain Katanga and Matthieu Ngdolo Chui case from the DRC, the second ICC case to go to trial also arose from the Democratic Republic of the Congo.  Katanga and Chui are charged with directing attacks on civilian targets.

The girls attacked in these cases may be eligible to seek reparations from the warlords convicted at the ICC, and funded by the Association of State’s Parties.  Persons seeking reparations must make application to the court and have a right to legal counsel  at court expense to pursue their claims.

Jan
26

Victims Called back by Defense in Lubanga Case

The defense in the Thomas Lubanga case called two of the witnesses back to testify.  The victims had testified last week on their own behalf, as part of the court’s process allowing victims to seek reparations.  The victims had previously testified in closed session and were questioned again in closed session so it is not clear what the substance of the testimony was.

The court allows victims seeking reparations to participate anonymously and allows questioning in closed session to protect the identity of victims.  Some details of the day’s events are here.

Thomas Lubanga is the first case to go to trial at the International Criminal Court and these victims are the first to use the court’s process to seek reparations.  Thomas Lubanga is accused of using child soldiers in the Democratic Republic of Congo and was brought to the court in 2007 his trial started in January 2008.

Jan
22

Third Lubanga Victim Testifies Seeking Reparations

A third child soldier victim of Thomas Lubanga testified about the treatment of young soldiers at the direction of Lubanga.  The victim testified about his abduction and conscription into the Union of Congolese Patriots (UPC in French).  A detailed report on the day of testimony is available here.

The testimony is part of the court’s unique process allowing the victims to participate in the case as it goes on, and to seek reparations.  The reparations will be funded by the victims fund, persons convicted may be directed to contribute by paying fines as well as serving sentences, but the fund will also be supported the state’s parties.

Persons who have a potential claim before the court can seek victim’s status and appointed counsel to represent their interests.  A person who applies may choose their own lawyer at the time of the application, or they will be assigned to the Office of the Public Counsel for Victims, which will handle the case within their pool of cases.

Jan
21

Lubanga Victims Testify

The Lubanga trial entered an unprecedented phase last week as the victims who are seeking reparations from Lubanga and the court testified about the harm they suffered because of Lubanga.  The victims tesitfied about their experiences being abducted as child soldiers and of others being held in sexual slavery. A summary of the testimony of the  first week of victims seeking reparations is available here.

The ICC process is unique in the history of war crimes prosecutions.  Never before have the victims of war crimes had an opportunity to seek reparations and never have they had the opportunity to participate in the case as it is going on.  This creates a difficulty for the defense as they have to defend the case on multiple fronts.  Reparations will be funded not just by the parties convicted, but by a victims fund which the member states contribute to.

Victims may seek reparations, including psychological and physical rehabilitation services. To assist them in seeking reparations, victims may request appointed counsel of their choosing, if they do not select counsel, they will be represented by the Office of Public Counsel for Victims.   Appointed counsel will not be funded by the courts and not by the victims personally.

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