Oct
26

Human Rights Watch Asks Kenya to Bar Entry to Bashir

Human Rights Watch along with other NGOs have urged that Kenya refuse entry or arrest Sudanese President Omar Al-Bashir.  Bashir is the first sitting head of state indicted by an International Criminal Tribunal.

The International Criminal Court (ICC) in The Hague, Netherlands has indicted Bashir for war crimes and genocide in Darfur, and issued two warrants for his arrest. He traveled to Kenya earlier this year, but was not arrested.  Kenya is a signatory to the Rome Statute, the founding treaty of the ICC.  All state parties of the ICC have agreed to cooperate with the ICC and arrest the persons sought by the ICC.

Sudan is not a signatory to the ICC treaty and has refused to surrender its president or the other ICC accused from its territory.  The situation in Sudan was referred to the ICC by a vote of the U.N. Security Council.

Oct
11

Fourth DRC Suspect Arrested in France

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.

Oct
09

ICC Appeals Chamber Rejects Lubanga Stay, Trial to Resume

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.

Oct
01

International Criminal Court Rejects Prosecution’s Offer of Compromise in Lubanga Trial

The trial chamber in the Thomas Lubanga Dyilo case last week rejected the prosecutor’s offer to identify the contested intermediary and provisional resume testimony in the Lubanga case. The Lubanga trial was suspended in July over the prosecution’s failure to disclose the identity of a prosecution investigator who is alleged to have bribed witnesses to falsify testimony.  Among other claims, the investigator is alleged to have found witnesses to assume the identities of other people and falsely claim to have been child soldiers in Lubanga’s Union of Congolese Patriots (UPC). One defense witness testified that he was paid to claim to be a child soldier in the UPC when he was never in the armed forces.

The Office of the Prosecutor has been repeatedly admonished for late disclosures in the Lubanga case.  This eventually led to the showdown in which the court indefinitely suspended the proceedings declaring that Lubanga could not get a fair trial and ordered his release from custody. The prosecutor has appealed and made a motion to provisionally continue the trial pending resolution of the appeal.

The trial chamber has now rejected that offer, finding that:

[I]t is necessary to repeat and emphasise that justice can no longer be done in this case whilst the Prosecutor continues to reserve to himself the right not to implement the Chamber’s orders if he is of the view that they conflict with his interpretation of his other obligations: as a result, the judges will have lost control of a significant aspect of the trial proceedings. Indeed, the Chamber may not even be aware of instances when its Decisions are not being implemented if this approach is permitted. This serious infringement of the Rule of Law applies  equally to proceedings in which “provisional” evidence is received as it does to a resumed trial. The guarantees of a fair hearing would be absent in both situations. By Article 64 (2) of the Statute, the Chamber is enjoined to ensure that the trial of the accused is conducted with full respect for his rights. The Chamber is unable to discharge this obligation whilst the Prosecutor refuses to accept the authority of the Court. Compliance with judicial orders lies at the heart of the principle of the rule of law – it is an irremovable and fundamental ingredient of a fair criminal trial, absent which the proceedings are ipso facto
vitiated.

The court will not resume the trial it said, unless and until the prosecution accepts the authority of the court to direct the prosecution and that the prosecution must follow the court’s orders regardless of other claimed obligations.  The Open Society Institute blog detailed the decision here.  The court’s order is available here.

Thomas Lubanga Dyilo is the first person to face trial at the ICC.  He is charged with using child soldiers in his role as leader of the UPC in the Democratic Republic of Congo.  Lubanga was brought to the court in 2006, the trial started in January 2009, the defense began presenting its case in January 2010.  The case has been suspended since July, based on the described finding of the trial chamber that Lubanga can no longer be guaranteed a fair trial because of the prosecutor’s refusal to follow court orders.

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