May
31

ICC Pre-Trial Chamber Notifies Security Council of Sudan’s Failure to Cooperate

Pre-Trial Chamber I of the International Criminal Court (ICC) in The Hague has issued a document titled “Decision informing the United Nation’s Security Council about the lack of cooperation by the Republic of Sudan.“  The decision gives notice to the Security Council that the one situation referred to the ICC by the Security Council has not been able to proceed, in large part because the indicted parties in the Sudanese government have not appeared before the court.

The President of Sudan, Omar Hassan Al-Bashir has been indicted by the court for crimes against humanity and war crimes, as have the Minister of State for Humanitarian Affairs, Omar Harun, and the leader of the Janjaweed Militia, Ali Kushayb.  Interestingly the decision does not mention President Bashir, only Harun and Kushayb.  A fourth leader from Sudan, Bahar Idriss Abu Garda appeared voluntarily before the court and the charges were dismissed at the confirmation of charges hearing.

At least one commentator has suggested the decision is of “lamentable quality” and poor timing, coming out just before the Association of States Parties are to meet in Kampala for a review of the progess of the court and the Rome Statute.  111 nations have ratified the Rome Treaty and joined the court.  Three notable holdouts have been Security Council members Russia, China and the United States.    Kofi Annan, who was U.N. Secretary General at the time of the creation the court has argued the need for universal ratification.

The Situation in Darfur was referred to the ICC by the Security Council because of the concerns of an ongoing genocide.  Bashir is the first sitting head of state to be indicted by an international tribunal.  Some governments have promised to arrest him if he enters their territory, others have allowed him safe passage.  When or whether he appears before the court is an open question.

May
13

Lubanga Defense Witnesses Testify by Video Link

Two witnesses in the International Criminal Court (ICC) case against Thomas Lubanga testified by video link because they were unable to travel to The Hague.  The defense asserts they were unable to travel because prosecution witnesses, who are also participating as victims in the case, had stolen their identities and they could not obtain proper travel documents.

The Open Society institute reported the stolen identities issue here in its blog on the Lubanga trial.  The defense witnesses identified themselves as former Union of Congolese Patriots (UPC) soldiers and claim that prosecution witnesses, identified as Witness 225 and Witness 229 stole their identities and posed as child soldiers in the UPC.  The testimony of one witness who described himself as the father of a witness whose identity was stolen was previously described here and in the Lubanga Trial blog here.

A defense investigator reportedly uncovered the fraud when he arrived in a village and found that there was a person in the village named Dieudonné Tonyfwa Urochi which was the name used by one of the two prosecution witnesses.  The court has ordered that court officials fingerprint the two defense witnesses to see if their identities can be determined.

Thomas Lubanga Dyilo is the first person to be brought to the ICC for trial.  He was brought before the court in 2007 and his trial began in January 2009.  The defense began presenting its case in January 2010.  Lubanga was the head of the UPC in the Democratic Republic of Congo and is on trial for war crimes including the use of child soldiers.  Victims have been allowed the right to participate to a limited extent in the case because the court’s process allows the victims of war crimes to seek reparations from the victims fund or the perpetrators.   The presentation of persons masquerading as victims of course threatens the process and the ability of victims in future cases to seek reparations.

May
10

Lubanga Defense Claims Witnesses Stole Identities

The defense team for Thomas Lubanga at the International Criminal Court (ICC) has claimed that a witness testified under a false name.  The witness, who testified as Dieudonné Tonyfwa Urochi, and is participating in the case as both a witness for the prosecution and as a victim seeking reparations before the court.  The testimony, report by the Open Society Institute’s blog on the trial here, goes to the credibility of the prosecution’s case.

In attempting to call the prosecution’s witness, the defense offered the testimony of a witness who stated that he is the father of Dieudonné Tonyfwa Urochi who was not a soldier in the Union of Congolese Patriots, (UPC) and is not the person who testified before the court. The defense witness was cross-examined by the counsel for the victim, as well as by the office of the prosecutor.

The counsel for Dieudonné Tonyfwa Urochi showed the witness a picture of the person who testified under that name and the witness insisted that was not his son.  Much of the testimony was continued in close session.

Thomas Lubanga Dyilo is the first person to be brought to trial in the ICC, which is located in The Hague, The Netherlands.  Lubanga was brought before the court in 2007, the trial commenced in January 2009, the defense case began in January 2010.  Lubanga was the leader of the UPC in the Democratic Republic of Congo and is on trial for the war crime of recruiting and conscripting child soldiers.

May
09

Will the ICC Open an Investigation in Afghanistan?

There have be many reports that the Office of the Prosecutor at the International Criminal Court (ICC) is considering opening a situation, the ICC’s term for the larger investigation, in Afghanistan.  It has been reported by the Wall Street Journal,  by the AP, repeated here in the Huffington Post, and by The Guardian to name just a few of the sources.  At least one law professor has editorialized against it in The International Herald Tribune, repeated in The Huffington Post.

Because the details of the investigation have not been made public, there is significant speculation about who might be charged with war crimes, crimes against humanity or genocide in an ICC case in Afghanistan.  Afghanistan is a signatory to the ICC treaty, and so the court has jurisdiction of crimes committed in Afghanistan.  The majority of countries contributing troops to the International Security Assistance Force (ISAF) in Afghanistan are also signatories to the treaty, though the United States is not.

Speculation has centered on whether the prosecutor is looking at cases involving ISAF troops, the Taliban, or member of the Afghan government.  ISAF troops, even those from countries not a party to the court, such as the U.S. could be prosecuted, but it seems most likely the ICC is looking at the actions of Afghan actors, the Taliban and warlords, particularly those who have become part of the Afghan government or who have otherwise enjoyed the protection of the government.

Why might U.S. and other ISAF troops not expect prosecution?  Because the court is complementary to national justice systems.  The principle of “complementarity” is enshrined in the Treaty of Rome, and if a national jurisdiction has authority over and investigates cases, even if they do not prosecute, then the case may be inadmissible to the ICC.  The ISAF forces are unlikely to be prosecuted at the ICC if their actions are reviewed and evaluated for prosecution by the respective national authorities.

The ICC has jurisdiction only for cases occurring after July 1, 2002.  This would leave out the soccer stadium massacres of the Taliban regime.  The alleged executions by the forces of General Dostum of Taliban prisoners also fall outside the temporal jurisdiction of the court.

Who then will be charged?  There are incidents involving ISAF forces where civilians were either targeted or incidentally killed.  If there is no military prosecution, would the ICC attempt to prosecute?  The Taliban’s campaign of terror and attacks on civilian targets would be one possibility, but establishing command responsibility may be problematic.  For the time being, the ICC has five situations, all in Africa, all in nations contiguous to each other.  There has been great political pressure to bring a prosecution outside of Africa, and Afghanistan certainly meets that description.  Who though would be prosecuted, and would the Office of the Prosecutor bring cases which test the meaning of Complentarity by charging ISAF troops?

Guinea is likely to be the next situation added now that the post-election violence in Kenya has been approved by the court as an investigation.  Whether or not Afghanistan will be included and who might actually be prosecuted remains to be seen.

May
04

Lubanga Defense Again Raises Concerns About Translation Errors

Thomas Lubanga Dyilo’s defense team again raised concerns about the accuracy of the translations and transcripts of the proceedings.  Defense counsel Catherine Mabile reported to the chamber that the defense had found “extremely important discrepancies” in the testimony of some witnesses.  It is unclear what the discrepancies were.  The Open Society Institute blogged the report here. The trial was previously stopped because of reported errors in translation and transcription which was blogged here, and by the Open Society Institute blog here.

The official languages of the International Criminal Court are English and French and all proceedings are simultaneously translated and transcribed in both languages.  Both transcripts are intended to be authoritative records of the trial proceedings.  Witnesses often testify in a third language so the possibility for errors and for entirely different translations of the testimony effects the quality of the record.

Thomas Lubanga is the first accused to come to trial in the International Criminal Court (ICC).  Lubanga was brought to the court in 2007, his trial commenced in January 2009.  The defense began to present its case in January 2010.  Lubanga was the leader of the Union of Congolese Patriots (UPC in French) in the Democratic Republic of Congo (DRC) and is accused of the war crime of recruiting, conscripting and using child soldiers.  The defense has contested the evidence that soldiers were younger than 15 at the time they joined the UPC and have asserted that some of the witnesses were not in fact in the UPC.

The ICC was created by the Treaty of Rome, and became effective when 60 nations ratified that treaty in July 2002.  The ICC has jurisdiction over crimes occurring after that date within the countries that have ratified the treaty or by nationals of countries that have ratified the treaty. The ICC can assert jurisdiction over cases when national authorities cannot or will not prosecute.  The ICC has investigations open in the DRC, Uganda, the Central African Republic, and has opened an investigation into the post-election violence in Kenya.  In addition to those nations which have signed the treaty, the ICC has an active investigation and indictments against three persons regarding Darfur, Sudan.  The Darfur situation was referred to the court by the Security Council of the United Nations and is different from the other cases because Sudan is not a signatory to the Treaty of Rome.  The ICC is seated in The Hague, The Netherlands.

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