Nov
25

ICC Announces New Preliminary Investigations

The Office of The Prosecutor (OTP) of the International Criminal Court (ICC) has announced two new preliminary investigations, in Honduras and Nigeria.  The OTP has previously said there are preliminary investigations in Afghanistan, Colombia, Ivory Coast, Guinea, Georgia, and, according to the Hague Justice Portal, Palestine. The court has jurisdiction over war crimes, crimes against humanity and acts of genocide committed in the territory of the 114 nations who have ratified the treaty, or by their citizens, which are not punished in national jurisdictions since July of 2002.

There are currently four situations where the court has issued indictments, Democratic Republic of Congo, Uganda, Central African Republic, and Darfur, Sudan.  The OTP sought and received approval from the court to open a formal investigation into the post-election violence in Kenya, and has said there will be indictments forthcoming soon.

The OTP has yet to issue an indictment, or even seek approval from the court to open a formal situation outside of Africa, which has led to significant criticism from African countries.

The idea of a situation in Afghanistan was previously explored here. The big question raised by the idea of an investigation in Afghanistan is who might be indicted?  The ISAF forces would likely be precluded by the principle of Complentarity.  The Taliban has not been in power during the jurisdictional period of the court.  Establishing command responsibility for atrocities by a member of the Taliban might well create significant difficulties for the OTP.

Nov
22

Q&A on the Bemba Trial

Human Rights watch has posted a Q & A section on the opening of the Bemba trial, the page is available here. Among the facts noted, more than 1200 victims have submitted applications to participate.  Of those the court has approved at least 135.  Curiously, the court has limited the legal representatives of the victims to two lawyers and two assistants, at least at the trial phase.  Whether this will provide effective representation remains to be seen.

Jean-Pierre Bemba Gombo was arrested in 2008, the trial began today at the International Criminal Court (ICC).  He is charged with war crimes and crimes against humanity including rape, murder and pillaging.  A representative of the Office of the Prosecutor has blogged about the trial here. The main allegation against Bemba is the failure as Commander of Chief of the Movement for the Liberation of Congo (MLC) to prevent his troops from engaging in a massive campaign of sex crimes. MLC was based in the Central African Republic, though Bemba is a citizen of Democratic Republic of Congo (DRC).

Victims in cases before the ICC have a unique opportunity to participate in cases as they go on.  They can examine witnesses, offer evidence and upon conviction seek an order for reparations.  The reparations process is unprecedented in international criminal justice. How it will be enacted and what the victims may receive is yet to be determined.  The first case, against Thomas Lubanga Dyilo, of the DRC has not finished testimony.  If there is a conviction, it would then move to the reparations stage.  Though appeals may have to be resolved first.

Nov
21

Bemba Trial to Open

The trial of Jean-Pierre Bemba Gombo is scheduled to begin at the International Criminal Court (ICC) tomorrow, November 22, 2010.  Bemba’s case will be the third trial at the ICC and he is the fourth accused to face a trial.  Bemba is also the first case from the Central African Republic, although he is a citizen of the Democratic Republic of Congo (DRC).  The two cases currently in trial arose in the DRC.

Bemba is accused of murder and rape as crimes against humanity and murder, rape and pillaging as war crimes. Bemba is alleged to have been the President and Commander in Chief of the Movement for the Liberation of the Congo (MLC).  As commander, he can be responsible for the actions of his subordinates if he knew, or had reason to know they were targeting civilians or committing war crimes or crimes against humanity and did not take steps to prevent or end the misconduct.

Bemba was arrested in Belgium in May of 2008 and transferred to The Hague in July of that year.  He had a confirmation of charges hearing in January 2009,in the decision from that hearing, in July of 2009, several counts of torture were dismissed as well as counts involving “outrages against personal dignity” as a war crime.

The court issued its finding on Mr. Bemba’s command responsibility:

Mr Jean Pierre-Bemba neither took the necessary nor the reasonable measures within his material ability to prevent or to repress thecrimes committed by his MLC subordinates throughout the five-month period of the intervention in the CAR. The evidence shows that a genuine will to take the necessary and reasonable measures to protect the civilian population by preventing crimes or even repressing their commission was lacking. Mr Jena-Pierre(sic)  Bemba’s failure to fulfil his duties to prevent crimes increased the risk of their commission by the MLC troops in the CAR at all times relevant to the Case. In reaching this finding the Chamber has given particular weight to Mr Jean-Pierre Bemba’s material ability
to prevent and repress crimes; the availability of a functional military judicial system within the MLC through which he could have punished crimes committed and prevented their future repetition during the period of intervention; the absence of any measures with respect to the crimes committed by MLC troops between November 2002 and January 2003 which increased the risk of their future occurrence; and the length of time taken to announce the troop withdrawal and to
issue an order to this effect, which led to the continuing commission of the crimes at least between mid January to mid February 2003.

Bemba faced short time from arrest to confirmation of charges to start of trial than the prior cases.  It appears the court intends to continue processing such cases rapidly.

Nov
17

ICC Rules on Disclosure Obligation of the Prosecution

Trial Chamber I of the International Criminal Court (ICC) has issued a ruling on the obligation of the prosecution to disclose information.  Trial Chamber I has been hearing the case against Thomas Lubanga Dyilo, the first ICC case to go to trial.  The Lubanga case has been stopped several times because of disputes over the disclosure of evidence in the possession of the prosecutor.   According to a post at the Open Society blog on the Lubanga trial, the issue came to light on March 5, 2010 when the defense noted to the court that the prosecution appeared to be cross-examining a defense witness based on undisclosed information.

It is clear in the Rome Statute, that the prosecution has a duty to disclose exculpatory information.  This ruling makes it clear the obligation is broader and the prosecution must disclose not just exculpatory information but information that may help explain the case, that may be used in cross examination and that “may otherwise be material to the preparation of the defence.”

While this clarification of the obligations may seem surprising to some in the Office of the Prosecutor, it is consistent with the spirit of the rules.  The obligation is based on the American Supreme Court case of Brady v. Maryland, which requires disclosure of exculpatory material or information that may lead to exculpatory material.  This obligation is ongoing.  Essentially, that appears to be the ruling of court.

The U.S. Department of Justice was involved in the drafting of the rules of the Rome Statute in the late 1990s.  Their input was to add an American style overlay to the system and require disclosure similar to that in U.S. federal court. The Office of the Prosecutor has adopted a more narrow approach, offering to disclose information they know to be exculpatory, or specifically requested by the defense.   The court seems to have broadened that understanding to include information that  “may significantly assist the accused in understanding the incriminating and exculpatory evidence, and the issues, in the case.”

This ruling makes the possibility of acquittal by the Trial Chamber seem more likely.  In June, the Trial Chamber suspended the proceedings finding that the prosecution’s failure to disclose the identity of a witness and the ongoing failure of the prosecution to disclose information as required meant that “a fair trial of the accused is no longer possible.”

If a fair trial was not possible because of the failure to meet disclosure obligations, and the prosecution has never met those obligations in the four years that Lubanga has been in The Hague, does this new ruling compel a finding of not guilty?

Lubanga was the leader of the Union of Congolese Patriots in the Democratic Republic of the Congo, he is accused of the war crimes of conscripting and enlisting child soldiers.  Lubanga was the first defendant in the custody of the court, arriving in 2006, his trial began in January 2009 and the defense began presenting its case in January 2010. The trial is expected to conclude this month.

Nov
14

U.S. State Department Official Describes “Positive Engagement” with the ICC

A U.S. State Department official has described the current administration‘s position on the International Criminal Court (ICC) as “positive engagement.”  The Bush administration had been openly hostile and sought agreements from other countries that no U.S. nationals would be transferred to the court and further threatened that it would use military force if any U.S. nationals were brought to the court.  Human Rights Watch described the law containing this threat,  the American Servicemembers Protection Act (ASPA) of 2002 as “The Hague Invasion Act” for its provision allowing such a use of force.

The Clinton administration had participated in the drafting of the Rome Treaty, but did not support the final version.  President Clinton signed the treaty on December 31, 2000, the final day to allow for continued participation in negotiating changes to the treaty.  President Clinton did not send the treaty to the Senate for ratification, and in a signing statement recommended that his predecessor not do so either,  because the ICC prosecutor was not “accountable” to the Security Council.  It appears that the main U.S. objection was that a member state, in particular the United States, could not veto or otherwise stop a prosecution.

In 2002, when the court’s jurisdiction began, the Bush administration sent a notice to the court withdrawing from the treaty.  A chronology of the U.S. attitude towards the court is offered by the American NGO Coalition for the International Criminal Court (AMICC). The Bush administration sought bi-lateral agreements with other nations promising not to transfer U.S. citizens to the ICC if indicted, apparently tying the signing of such an agreement to aid.  The Coalition for the International Criminal Court (ICCNOW) has offered a list of some of those agreements here.

There have been statements from U.N. Ambassador Susan Rice, signaling a change in policy towards the ICC, and Secretary of State Hilary Clinton has described it as “a great regret” that the U.S. is not a state’s party. It is clear that the U.S. is not as openly hostile to the ICC as the Bush administration. Though it seems unlikely the administration will expend any political effort or capital on seeking ratification of the treaty when it is clear that would not be 66 votes to ratify.  It is not clear how many Senators would support ratification, there are no public statements of support by any U.S. Senators that have been located in preparing this post.

The purpose of the ICC is to have a permanent international court to prosecute mass atrocity cases, those crimes against humanity, war crimes and acts of genocide that are not or cannot be effectively prosecuted by national authorities.  The principle of complementarity, preventing prosecution by the ICC when a national authority has jurisdiction has been sufficient for the 114 nations which have ratified the treaty.  The ICC is intended as a court of last resort, not to prosecute crimes generally.

The Rome Statute, founding document of the ICC, does not create new obligations, but rather creates an enforcement mechanism for violations of the Geneva Conventions of 1949, ratified by 194 countries, including the U.S.  The newest addition to the statute is a definition of the crime of aggression, or committing aggressive war.  The Nuremberg trials after World War II included a count of waging aggressive war and the U.N. charter includes an obligation of the member states, including the U.S. not to wage aggressive war.  The ability of an international court to enforce treaty obligations by prosecution appears to be the area of concern which prevent U.S. support for the ICC.

Nov
09

Judges Again Fault Office of the Prosecutor for Late Disclosure

Presiding Judge Adrian Fulford, hearing the case against Thomas Lubanga at the International Criminal Court, (ICC) has again raised concerns about the conduct of the prosecution in failing to identify a witness. The prosecution apparently had interviewed a witness, determined the testimony was not credible, but did not disclose the information to the defense.  The prosecutor has an affirmative duty to disclose exculpatory information to the defense.

The trial has previously been suspended for several months because of the non-disclosure to the defense. In giving the prosecution until Friday November  5 to make the disclosure, Judge Fulford said, “We will reflect on the approach taken by the OTP in relation to disclosure,”

Thomas Lubanga Dyilo is the first person to face trial at the ICC.  He was brought to the court in 2006. Lubanga was the leader of the Union of Congolese Patriots (UPC), and is the first person to face trial at the ICC in The Hague, Netherlands.  Lubanga is accused of the war crimes of  using and conscripting child soldiers. The trial began in January 2009, the defense began presenting its case in January 2010.  The case has been delayed several times,  and just resumed after a lengthy delay when the trial court suspended the case over concerns that Lubanga could not get a fair trial because of the repeated refusal of the Office of the Prosecutor to disclose the identity of a prosecution investigator accused of bribing witnesses.  The other delays are recounted here. The appeals chamber determined that  the case could continue, and that the court could impose sanctions on the Office of the Prosecutor to induce compliance with the court’s orders.

Testimony in the case is expected to conclude this month.  The defense is to complete its written argument requesting dismissal of the case because of prosecutorial misconduct for not properly disclosing witnesses or complying with its obligations.

Nov
04

Lubanga Trial Resumes, Expected to End This Month.

The first trial at the International Criminal Court (ICC) in The Hague, Netherlands, is expected to wrap up this month.  The trial has been beset by various delays, claims of prosecutors withholding evidence and claims that agents of the prosecution had fabricated evidence.  The Open Society Institute Blog on the trial reports that the final witnesses are expected to testify by November 25.

Thomas Lubanga Dyilo was a leader of the Union of Congolese Patriots (UPC in French) in the Democratic Republic of the Congo.  He is the first person brought to trial at the ICC.  Lubanga is standing trial for war crimes for conscripting and enlisting child soldiers in the UPC.  Lubanga was brought to the court in May of 2006, his trial began in January of 2009, the defense began presenting its case in January 2010.   A full timeline of the trial through August is available here.

Lubanga’s trial has been stopped at various times because of the unavailability of witnesses including because of the volcanic eruption in Iceland, because of an ongoing fight about the prosecution’s duty to identify a witness and its ongoing refusal to do so, and because of deficiencies in translation and transcription,

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