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.

Aug
21

St. Lucia Ratifies ICC Treaty

This week the Caribbean Island nation of St. Lucia became the 113th nation to ratify the Treaty of Rome and become a member of International Criminal Court (ICC).  The ICC treaty became effective in 2002 when the 60th nation ratified the treaty.   In 1998, the treaty was signed by 120 countries and developed the framework for a court.

The court is intended to prosecute war crimes, crimes against humanity and acts of genocide.  The court has jurisdiction in the nations that have ratified the treaty and that jurisdiction extends to acts from the effective date, July 1, 20o2.

The court was in part a response to international tribunals which had been created to prosecute crimes in the former Yugoslavia, Rwanda and Sierra Leone.  Instead of creating a new tribunal for each set of atrocities, the idea was to create a permanent court to hear all such cases.

In order to have jurisdiction, the crimes must occur in one of the states which has ratified the treaty, or the case must be referred by the U.N. Security Council.  The ICC has indicted persons from Uganda, Democratic Republic of Congo, Central African Republic, and Darfur, Sudan.  The court has also approved an investigation into the post-election violence in Kenya, but no indictments have been made public.

The first ICC case to go to trial, Thomas Lubanga Dyilo of the Democratic Republic of Congo has been suspended because of the prosecution’s failure to comply with discovery orders by the court.  This case may provide a test of the lasting power of the court and its ability to function.  The court has ordered Lubanga released, but that order has been stayed pending appeal.

The court also has outstanding arrest warrants for the President of Sudan, Omar Al-Bashir.  The court has indicted Bashir for genocide, and war crimes in Sudan, but his government and many other countries have declined to arrest Bashir and present him to the court.

Another case that came to the court from Sudan, Bahar Idriss Abu Garda, won dismissal of the charges against him at the confirmation of charges hearing. Two more accused from Sudan have now voluntarily appeared before the ICC and are contesting the confirmation of charges.

A major criticism of the court so far has been that all the cases have come from Africa, in fact adjoining countries in Africa.  The ICC Prosecutor, Luis Moreno-Ocampo has said that more cases will be forthcoming and has said investigations are ongoing in Georgia, Guinea, Afghanistan, and Colombia.

The court cannot prosecute cases where a national authority has the jurisdiction and ability to prosecute.  Its mandate is to prosecute only those crimes that will otherwise go unpunished and those that are severe enough to qualify as war crimes or crimes against humanity.  The ICC sits in The Hague, Netherlands.

Jul
12

International Criminal Court Issues Another Warrant for Sudanese President Bashir

The International Criminal Court (ICC) Pretrial Chamber I has issued another arrest warrant for the President of Sudan, Omar Al-Bashir.  This decision follows an earlier direction from the appeals chamber, detailed here, that determined that the Pre-Trial Chamber had used the wrong standard in failing to indict Bashir for genocide.

Bashir is the first sitting head of state to be indicted by an international tribunal and have a warrant issued for his arrest, he now also bears the distinction of being the first person to be indicted for genocide by the International Criminal Court and the first person for whom an arrest warrant for genocide was issued.  There are now two arrest warrants out for Bashir.  The ICC’ press release is available here.

The situation in Darfur was referred to the ICC by the U.N. Security Council. Sudan is not a signatory to the  ICC treaty.  Bashir and the minister of Humanitarian Affairs in Sudan, Ahmad Harun are the Sudanese government officials who have been indicted.  Ali Kushayab, reputed head of the Janjaweed militia has also been indicted.  None of those three have appeared before the court.  Three other accused from Sudan have appeared voluntarily before the court.  Of the three who have voluntarily appeared, one,  Bahar Idriss Abu Garda had his case dismissed at the confirmation of charges hearing.  The other two are awaiting their confirmation of charges hearings.

Sudan was referred to the ICC for investigation of crimes against humanity, war crimes and genocide.  Several victims have been granted the right to participate in these cases when they commence.  Persons who are victims of war crimes have a right to participate in the ICC cases and to seek reparations if there is a conviction.

Jun
16

New Sudan Accused Appear Voluntarily Before the International Criminal Court

Two new suspects in the International Criminal Court (ICC) situation in Darfur have now voluntarily appeared before the court to answer charges of war crimes involving attacks on U.N. peacekeepers.  Abdallah Banda Abakaer Nourain (Banda) and Saleh Mohammed Jerbo Jamus (Jerbo) were issued summonses under seal in August of 2009.  Banda and Jerbo are scheduled to make their  appearances before the court on June 17, 2010.  A previous accused from Sudan, Bahar Idriss Abu Garda appeared voluntarily before the court and his case was dismissed at the confirmation of charges hearing.  That case was previously described here.

The court’s press release on the arrest of Banda and Jerbo is available here.  The International Criminal Law Bureau has blogged about the scheduled appearance here.

The President of Sudan, Omar Al Bashir remains under indictment for the crimes against humanity alleged in Darfur.  The Minister of Humanitarian Affairs of Sudan, Ahmad Harun and Ali Kushayb, the leader of the Janajaweed militia have also been indicted under public indictments.  None of those three have appeared before the court.  It is not known how many other indictments, summonses or warrants remain under seal.

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
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.

Feb
08

International Criminal Court Finds For Abu Garda

The Interational Criminal Court, pre-trial chamber I today ruled that the Office of the Prosecutor had not provided sufficient evidence to continue the case against Bahar Idriss Abu Garda for trial.  Abu Garda was the first case from the Sudan to come before the court. He appeared voluntarily with counsel in May of 2009 and has been in The Hague, though not in custody since then.

Abu Garda was charged with three war crimes, violence to life, directing attacks against peacekeeping forces, and pillaging.  The court found there was not sufficient evidence presented at the confirmation of charges hearing to require a trial.

The International Criminal Court uses a three stage process, a warrant and indictment can issue if there are “reasonable grounds” to believe the person committed war crimes or crimes against humanity.  Once the accused is before the court, then there is a confirmation of charges hearing where the accused can participate and challenge the evidence, if after that hearing the court determines there is “substantial grounds” to believe the person is guilty of the crimes charged then a trial may be held where the prosecutor must prove the case beyond a reasonable doubt.

It was at this second stage where the court found for Abu Garda and essentially dismissed the charges.  This hearing, the equivalent of a probable cause hearing in an American court case may end the case against Abu Garda, although the prosecutor has the right to appeal the determination, and may ask to reopen if they can provide new evidence of Abu Garda’s involvement or command responsibility for the alleged war crimes.

The court’s press release regarding the decision is available here, the order itself is here, and the court’s fact sheet on the case is located here.  Abu Garda is the fifth person brought to the court to face charges of war crimes, and the first to win the confirmation of charges hearing.

The court has previously confirmed charges against Thomas Lubanga of the Democratic Republic of Congo and against Germain Katanga and Matthieu Ngdolo Chui also of the Democratic Republic of Congo.  Lubanga’s defense team is currently presenting its case, and Katanga and Chui are being tried together, their trial recently resumed.  The court has also confirmed the charges against Jean-Pierre Bemba Gombo of the Central African Republic who is awaiting the start of trial.

The president of Sudan, Omar Hassan Ahmad Al Bashir and a cabinet official, Ahmad Harun have also been indicted by the court for war crimes as has a rebel leader, Ali Kushayb.  None of them has yet appeared before the court to face the charges.

Feb
03

Appeals Chamber Reverses Pre-Trial Chamber in Bashir Warrant Decision.

The International Criminal Court made history in March of 2009 by issuing an arrest warrant for a sitting head of state, Omar Al Bashir, the President of Sudan. The warrant for his arrest was based on allegations of war crimes and crimes against humanity. The pre-trial chamber though declined to issue a warrant for the charge of genocide, finding at the time that the prosecutor had not established sufficient evidence of genocidal intent.

Today the appeals chamber of the ICC issued a decision, available here, determining that the pre-trial chamber erred by using the wrong standard for making its determination. The pre-trial chamber decided that since genocidal intent was only one of the reasonable inferences based on the evidence submitted and that a warrant should not issue for genocide. The appeals chamber reasoned that the pre-trial chamber read in too high a requirement when reading the statute’s requirement that a warrant of arrest required “reasonable grounds to believe” that a crime within the jurisdiction of the court occurred.

The appeals chamber said the pre-trial chamber’s determination effectively required the prosecutor to establish its case beyond a reasonable doubt and “disprove any other reasonable conclusions.”  The appeals chamber determined that this effectively required a trial standard of proof at the issuance of an arrest warrant and did not recognize the statute’s escalating standards of proof, “reasonable grounds to believe” at the warrant stage, “substantial grounds to believe” at the confirmation of charges stage and “beyond reasonable doubt” for a conviction at trial.

The appeals chamber did not issue a warrant based on charges of genocide but sent the matter back to the pre-trial chamber for a determination based on whether or not there are reasonable grounds to believe that Bashir and the Government of acted with genocidal intent in Darfur.  The court’s press release summary of the decision is available here.

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