Apr
30

ICC Appeals Chamber Rejects Prosecution Appeal

The office of the prosecutor appealed the decision of the pre-trial chamber declining to confirm charges again Bahar Idriss Abu Garda.  The trial chamber decision, originally blogged here,  found that the office of the prosecutor had not produced enough evidence to continue the case for trial.   The standard of proof at the confirmation of charges hearing is “substantial grounds.” Abu Garda was charged with three war crimes, violence to life, directing attacks against peacekeeping forces, and pillaging.

The court issues indictments when the prosecutor establishes “reasonable grounds” for the charges.  If the pre-trial chamber finds “substantial grounds,” the case is continued for trial where the case must be established beyond a reasonable doubt.

The Abu Garda case is unique in a number of ways.  Abu Garda is the first defendant from the situation in Darfur to appear before the court, and the first accused in any situation to appear voluntarily before the court.  He is now the first to have his case dismissed at the confirmation of charges hearing and the first to have a dismissal affirmed by the appeals chamber.

The Hague Justice Portal blog on the appeals chamber decision is available here. The  appeals chamber decision was issued on April 23, 2010, the pre-trial chamber declined to confirm the charges on February 8, 2010.  The other three accused from the Darfur situation,  Omar Al Bashir, the President of Sudan, the country’s Minister of Humanitarian Affairs, and the leader of the Janjaweed militia all remain at large.  The Government of Sudan has not cooperated with the court and is not a signatory to the treaty.  The situation in Darfur was referred to the court by the U.N. Security Council.

The International Criminal Court sits in The Hague and is intended to be a permanent court to decide charges of war crimes, crimes against humanity and genocide that cannot or will not be prosecuted by national authorities.

Apr
18

Lubanga Prosecutor Offers Evidence of the Age of Child Soldiers

The Office of the Prosecutor in the Thomas Lubanga Case has offered additional evidence that the witnesses who testified in the prosecution case were child soldiers.  The defense had offered evidence that at least some of the witnesses were not young enough to be considered child soldiers under international law, and that others were not in fact soldiers.  The submission, reported here by the Open Society Institute, was made during a recess in the trial.

Thomas Lubanga Dyilo was the first person brought to the International Criminal Court (ICC) to face indictment.  He arrived in The Hague in 2007, and the trial commenced in January 2009.  In January 2010, the defense began to present its case.  The case recessed in March, for further investigation by the defense and is scheduled to resume later this week.

Lubanga is charged with crimes in the civil war in the Democratic Republic of Congo (DRC).  Lubanga is alleged to have used child soldiers and to have conscripted child soldiers in his rebel army.  Child soldiers are defined by the Rome Statute, the founding document of the ICC, as those under 15 years of age.  The medical evidence the prosecutor is offering claims the witnesses may have been as young as 10 or 11 at the time they were drafted into Lubanga’s army,  the Union of Congolese Patriots, (UPC).

The prosecution is asking the court for leave to offer certificates as to the age of the contested witnesses.  These certificates are based on the testimony of prosecution witnesses who testified in May 2009.  It is being offered during the defense case, instead of as rebuttal, though it is not clear why they did not seek to admit the evidence in May, or why they would not wait and offer it as rebuttal evidence after the close of the defense case.

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