Reparations Center for Victims of War Crimes

The ICC has posted a video of at least part of the opening statement of the Office of the Prosecutor in the Katanga and Chui case from November 26.  The opening statement was delivered by chief prosecutor Luis Moreno-Ocampo of Chile, his official bio is available here.

 Germain Katanga and Matthieu Ngdolo Chui are rebel leaders from the Democratic Republic of Congo.  They are accused of 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.

Katanga has been in court custody since February of 2008, Chui since October 2007.  The case started as a referral by the government of the Democratic Republic of the Congo.  Referral by a member state is one way for a case to begin.  The cases in Uganda and Central African Republic also began as referrals from their own governments.  The situation in Sudan was referred to the court by vote of the U.N. Security Council. in that case, the court has issued an indictment against and a warrant for the arrest of the President of Sudan, Omar Hassan Ahmad Al Bashir. 

Of the four current situations, the court’s term for the broader investigations, the two trials in progress are the Katanga/Chui case and the case against Thomas Lubanga all from the Democratic Republic of Congo.  The Lubanga case is currently on hold while the court reviews the prosecutor’s request to add charges.  One accused from Sudan, Bahr Idriss Abu Garda voluntarily surrendered to the court, and is awaiting the court’s decision on whether or not to confirm the charges and hold him over for trial.  None of the publicly indicted defendants from Uganda have appeared before the court. The case from the Central African Republic, Jean-Pierre Gombo is awaiting trial.   

The second trial of accused before the International Criminal Court is scheduled to open on Tuesday, November 24.  The case of Prosecutor v. Germain Katanga and Mathieu Ngdolo Chui is the result of an investigation which began with a referral by the government of the Democratic Republic of the Congo. Katanga and Chui are alleged to have committed war crimes, crimes against humanity including rape, sexual slavery and the recruitment of child soldiers.

 The court described the plan for proceedings for the first day in a press release:

Tuesday’s hearing will start with the reading, by a Court official, of the charges against Germain Katanga and Mathieu Ngudjolo Chui (duration, 30 minutes). Presiding Judge, Bruno Cotte will then satisfy himself, through the Defence Counsel, that the accused have understood the nature of the charges. He will further recall to the Defence that each of the accused has the opportunity to say at this stage whether he will plead guilty or not guilty, pursuant to 64 (8)(a) of the Rome Statute (duration, one hour). The Court’s Prosecutor, Luis Moreno-Ocampo, will then take the floor for the opening statement (duration, one hour). He will be followed by the Legal Representatives of the Victims Fidel Nsita Luvengika and Jean-Louis Gilissen (duration, 40 minutes). Finally, the Defence Counsel for each of the accused will also proceed with opening statements (duration, 1 hour and 15 minutes). The full press release is available here.

Katanga first appeared before the ICC on October 27, 2007, Chui on February 11, 2008.  Their cases were combined for the confirmation of charges hearing, and the court issued its order confirming the charges on September 26, 2008.

The first case to proceed to trial, Thomas Lubanga Dyilo, also from the DRC is currently on hold awaiting a decision on whether or not additional charges may be added after the commencement of the trial. 

The trials are broadcast on the ICC website, with a 30 minute delay.  

In preparation for the assembly of state’s party gathering in The Hague, Netherlands, this week, Human Rights Watch has issued its report on the court and its position on how to improve it.  The report is available here.

Human Rights Watch identifies some key areas of concern, complementarity, for instance.  Complementarity means the court functions only where national authorities cannot or will not act on crimes within the jurisdiction of the court.  This is a necessary bow to the sovereignty of the state parties, but also means there will always be political disputes about what should be prosecuted in the court and what should not be. 

In the situation in Uganda for example, the rebel generals have been negotiating a resolution with the government, but a key point of the negotiations is to dismiss the indictments against them in the ICC.  The Ugandan government does not have this authority, but can such an agreement bind the court?  Will the court act when a state party makes a deal with an indicted person to seek dismissal or to not cooperate?   What if Uganda set up a truth and reconciliation commission and agreed that would substitute for prosecution, would complementarity then prevent prosecution at the ICC?

The court of course will always be inherently political.  It exists at the sufferance of the states parties, if it exercises too much independence its budget will disappear as will its support, but if it does not prosecute the otherwise unpunished war crimes and crimes against humanity, there will be no public support and little international support.  At some point it will have to broaden the prosecutions beyond a single corner in Africa where four countries meet. 

In anticipation of the meeting of the states parties who are the 110 signatories to the treaty authorizing the International Criminal Court, the court has issued its report on the treatment of victims. 

The court laid out five objectives in dealing with victims:

Objective 1:
Ensure that the role of the Court and its judicial activities are clearly
communicated to all victims of a situation or case potentially falling within the
jurisdiction of the Court, including their right to petition the Court (i.e. the right to give
information to the Prosecutor to form the basis of a proprio motu investigation), to
participate in proceedings at the Court or to seek reparation.

 Objective 2:
To enable victims to interact with the Court without suffering further harm as a
result of this interaction, including by providing protective measures and security
arrangements at all stages.

Objective 3:
Provide support and assistance to victims in order to safeguard their
psychological and physical integrity and well-being, ensure respect for their dignity and
privacy, and prevent them from suffering further harm as a result of their interaction
with the Court.

Objective 4:
To ensure that victims are able to fully exercise their right to participate in ICC
proceedings, in a manner that is sensitive to their rights and interests and consistent
with the rights of the Defence and the need to ensure a fair trial.

Objective 5:
To ensure that as many victims as possible are able to exercise their rights as
regards reparation and to benefit from assistance.

Objective 6:
To ensure that victims obtain high-quality legal representation before the Court.

 The document as a whole is available here.

Of note under objective six is that participation with counsel will be by the counsel chosen by the victim in making their application.  If, however, the victim does not choose counsel, then representation will be by the Office of Public Counsel for Victims(OPCV).  This is despite the subheading under objective six which states the counsel should be in the same country as the victim.  Using the OPCV may reduce the cost to the court, but will the OPCV staff be able to provide information and advocacy to the many victims who will not be residing in The Netherlands, but still seek to participate?

There is a precarious balancing act between the rights of the accused, the rights of the victims and the witnesses, the ability to participate, the ability to seek reparations and the ability of the victims to have court-funded counsel.  Since the victims have the right to seek court-funded counsel, it would seem more fair to allow them the opportunity to chose between the OPCV and counsel on the list who office where the victims live.

 In the meantime, it would make sense for the victims who wish to participate to seek the assistance of counsel on the list to fill out the application and make sure they seek counsel who will be able to keep them updated on the process of their case. Victims who wish to participate and have counsel who are accessible to their current home should seek out those counsel rather than count on the court to assign counsel outside of the OPCV.

The 110 nations who have signed on to the Rome Treaty which established the International Criminal Court have begun meeting in The Hague, Netherlands this week to review operation and functioning of the court. 

 The various parts of the court, the Registry (Court Administration) the Presidency (the chief judge) and the Office of the Prosecutor will be delivering reports on their activities and plans for the future of the court. 

At the moment there is one case in trial, the Thomas Lubanga case from the Democratic Republic of Congo.  Mr. Lubanga is accused of using child soldiers in his rebel army. Mr. Lubanga made his first appearance before the court in March of 2006, his trial started January 26, 2009, and is currently in recess.   Mr. Lubanga was the first accused to appear before the ICC, and many of the new principles of ICC jurisprudence have been tested in his case, such as the participation of victims and their legal representatives as the case progresses.

Germain Katanga and Matthieu Chui are also rebel leaders from the Democratic Republic of the Congo.  Their joint trial is scheduled to begin on November 24, 2009, and they are accused of using child soldiers and a number of other war crimes including rape, murder, pillaging, directing attacks against civilian targets and sexual slavery.

Jean Pierre Gombo of the Central African Republic is awaiting trial and the only other accused who has appeared before the court, Bashir Idriss Abu Garda of Sudan is awaiting the court’s decision on whether or not it will confirm the charges against him and set the case for trial.

This week, the Office of the Prosecutor submitted a request to the court to open an investigation into the post-election violence in Kenya.  This action has been undertaken with the apparent support of the Kenyan government.  The ICC acts only when the government responsible cannot or will not act, and only when the actions involved constitute a crime against humanity or war crimes within the definitions of the Rome Statute.

The Office of the Prosecutor submitted its request and preliminary investigation on November 6, 2009.  The court has yet to issue its decision in response.

The first Sudan case has reached the confirmation of charges stage at the International Criminal Court(ICC).  This is a preliminary hearing where the judges decide whether there is enough evidence to head for a trial.  Read my article about this in the African News Journal, here. 

Bashir Idriss Abu Garda is one of four Sudanese to have public indictments issued, and the first to appear at the court.  Abu Garda was was the Chairman and General Coordinator of Military Operations for the United Resistance Front, he appeared voluntarily in The Hague in May.  Abu Garda is accused of three counts of war crimes, murder, attacking peacekeepers and pillaging as defined by the Rome Statute, which defines the functioning of the ICC.

 Hearings on the confirmation of charges were held October 26-October 30.  The judges will issue a ruling on whether or not they find sufficient evidence for a trial.  Because Abu Garda appeared voluntarily at the court, he is not in custody.

 The other three Sudanese defendants are the President of Sudan, Omar Al Bashir, Amad Harun, a former Interior Minister and Humanitarian Affairs Minister, and Ali Kushayb the leader of the Janjaweed militia.  None of them are in the custody of the court.

The African News Jounal posted an article about my attending the ICC conference in May.  Here is a link to that article.