Dear Friends,
Welcome to the second issue of Legal Eye on the ICC, a monthly e-letter
from the Women's Initiatives for Gender Justice. In the Legal Eye you will find
summaries and gender analysis of judicial decisions and other legal
developments at the International Criminal Court (ICC), and discussion of
legal issues arising from victims' participation before the Court,
particularly as these issues relate to the prosecution of gender-based crimes
in each of the Situations under investigation by the ICC. The Court currently
has cases relating to the conflicts in Uganda, the Democratic Republic of the Congo (DRC), Darfur,
Sudan and the Central African Republic (CAR).
In addition
to the Legal Eye on the
ICC we also produce Women's
Voices, a monthly e-letter providing updates and analysis on
political developments, strategies for the pursuit of justice, the status of
peace talks, and reconciliation efforts from the perspective of women's
rights activists from the four conflict situations.
With both
online e-letters we will also update you about the programmes, legal and
political advocacy, campaigns, events, and publications of the Women's
Initiatives.
More
information about the work of Women's Initiatives for Gender Justice and
previous issues of Women's
Voices and the Legal
Eye can be found on our website at www.iccwomen.org.
DRC :: Lubanga trial update
Our March
issue reported on the commencement of the trial in the case of The Prosecutor v. Thomas Lubanga
Dyilo. Lubanga, President of the Union des patriots Congolais (UPC) and
Commander-in-Chief of the Forces
patriotiques pour la libération du Congo (FPLC), faces war crimes
charges arising out of the alleged UPC/FPLC practice of enlisting and
conscripting children under the age of 15 years and using them to participate
actively in the hostilities.
When the
Trial Chamber commenced a four-week spring recess on 8 April 2009, it had
heard evidence from a total of 18 Prosecution witnesses, among them eight
former child soldiers, including one girl. The Prosecution has stated that it
intends to call approximately 30 witnesses in its case. All of the witnesses
who gave testimony during the first two months of the trial proceedings had
direct, personal experience of the events to which they testified.
In late March
and early April 2009, the Chamber heard testimony from two expert witnesses.
Expert witnesses can be called pursuant to the 10 December 2007 order of the
Chamber allowing the parties to instruct experts to provide reports and
evidence. Under Regulation 44 of the Regulations of the Court, the Chamber itself
also has broad latitude to instruct experts.
Gerard
Prunier is an expert in the history and politics of the Great Lakes Region of
Africa. In May 2008, he was requested by the Office of the Prosecutor to
provide a report on the history, characteristics and features of the conflict
in the Ituri region of the North-Eastern DRC. In June of 2008, his report was
completed and filed as evidence in the Lubanga case. Mr Prunier appeared
before the Chamber on 26 and 27 March 2009 to answer questions arising from
his report. Cross-examination highlighted the inter-state nature of the
conflict in Ituri and the role played by neighbouring states — in particular Uganda and Rwanda — in backing the various militia groups fighting for
control of Ituri. Mr Prunier's evidence also highlighted the frequent shifts
between the militia groups, as well as between the groups and their
foreign-state backers.
Elisabeth
Schauer is a Clinical Psychologist with a focus on trauma treatment in crisis
regions and specialising in the fields of psychotraumatology, women's and
children's health, and violence and human rights. Her expert report on the
psychological impact of child soldiering was completed and filed as evidence
in the Lubanga case in February 2009 at the request of the Chamber.
Dr Schauer
took the witness stand on 7 April 2009 to answer questions arising from her
report. Responding to questions from the Prosecution, Dr Schauer told the
Chamber that, in most populations worldwide, girls show higher overall rates
of Post-Traumatic Stress Disorder (PTSD) than boys, and that this is because
girls are exposed earlier and more frequently to the types of traumatic
experiences most likely to trigger PTSD. She also testified that, in contrast
to boys who develop PTSD, girls are more likely to internalise their
suffering, leading to co-morbid depressive symptoms. Responding to questions
from the Office of the Public Counsel for Victims, Dr Schauer spoke of the
difficulties experienced by child soldiers attempting to reintegrate into
their communities post-conflict, stressing the particular difficulties of
former girl soldiers returning to their communities with babies born as a
result of forced 'marriages'.
Dr Schauer's
report noted that almost 40% of child soldiers worldwide were girls. In
response to questions put by Lubanga's lawyer, she conceded that this figure
was quoted from a specific source and that she did not know whether it was
accurate for militia groups operating in the Eastern DRC during the relevant period. Dr Schauer told the
Chamber that girls who have been raped show very high rates of PTSD and that
rape is among the most predictive events causing PTSD in girls. She confirmed
that, in her opinion, a girl who is abducted by a militia group, and becomes
a commander's 'wife' but never takes part in combat, can still by definition
be considered a child soldier. Finally, she noted the lack of availability of
appropriate PTSD therapy anywhere in Eastern DRC.
All the
former child soldiers who have testified to date, along with a number of
other witnesses, have given evidence concerning the sexual violence routinely
perpetrated upon the girl recruits by their commanders. With roughly 60% of
the Prosecution's witnesses having now testified, it is possible to recognise
commonalities across the evidence of these witnesses concerning this sexual
violence. All witnesses who have testified to date told the Chamber that the
young recruits all received the same training, were outfitted in the same
uniforms and issued with the same weapons, and were sent into the battlefield
to fight with no distinction made on the basis of either age or gender.
However, all
witnesses also testified that, in addition to their duties as soldiers, the
girls were expected to cook for their commanders and to provide them with
‘sexual services’. Some of the witnesses referred to this latter role
as ‘sleeping with’ the commander or being his ‘wife’ while others used the
term ‘rape’ to describe what the young girls experienced. All witnesses
made it clear that the girls involved had no choice in the matter and could
have been killed for refusing. One former child soldier testified to the
remorse he felt after having, on his commander’s orders, killed a young girl
who had refused to provide the commander with sexual services. Another former
child soldier testified to having watched a young girl die trying to abort
after becoming pregnant as a result of rape in a UPC training camp. This
witness testified that a female recruit who was discovered to be pregnant
would be chased out of the camp on the commander’s orders and that young
girls in this position would often try to abort the pregnancy to avoid this
fate.
Since 2006,
the Women's Initiatives has advocated with the Office of the Prosecutor for
the investigation and prosecution of gender-based crimes committed by the
UPC, including against girl soldiers within their own ranks. Based on our
documentation and analysis, we have long advocated the position that rape and
other forms of sexual violence were an integral part of the process of
enlistment and conscription for girls, particularly during the initial
abduction phase and period of military training by the UPC, and that
perpetrating sexual violence upon girl soldiers was an inherent feature of
the UPC's enlistment and conscription practices.
Trial
transcripts for The
Prosecutor v. Thomas Lubanga Dyilo can be found at
http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/Situations/
Situation+ICC+0104/Related+Cases/ICC+0104+0106/Transcripts/Trial+Chamber+I/
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DRC :: Developments in the case
against Katanga
and Ngudjolo
The second
case arising out of the investigation into crimes committed in the Democratic
Republic of Congo (DRC), the Prosecutor
v. Germain Katanga and Mathieu Ngudjolo Chui, has now been
scheduled for trial commencing 24 September 2009. In a decision issued on
27 March 2009, Trial Chamber II ruled that a tentatively-scheduled June
or July start was no longer feasible in light of a number of factors. These
include the time required
a.
for the Defence to conduct investigations on the ground in Eastern DRC;
2. for
the Prosecutor to complete his disclosure obligations;
3. for
the Chamber to consider and rule on — and then possibly await the outcome of
an appeal concerning — an application brought by Katanga challenging the admissibility of the case against him;
and finally
4. for
the Registry to process and the Chamber to rule on 150 further victim
applications for participation in the proceedings.
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CAR :: Adjournment of Bemba
confirmation hearing proceedings
As reported
in the March Legal Eye on
the ICC, the confirmation of charges hearing for the Prosecutor v. Jean-Pierre Bemba
Gombo took place before Pre-Trial Chamber III on 12-15 January
2009. It was anticipated that the Chamber would issue a decision on the
confirmation of charges within the 60-day period required by Regulation 33 of
the Regulations of the Court. However, on 3 March 2009, without either confirming
or declining to confirm the charges against Bemba, the Chamber issued a
decision adjourning the confirmation hearing proceedings pursuant to Article
61(7)(c)(ii), and inviting the Prosecutor to consider amending the document
containing the charges, specifically with respect to the mode of liability
under which Bemba is charged. The Chamber noted that it was 'of the view that
the evidence submitted appears to establish a different crime within the
jurisdiction of the Court [than the crime Bemba was charged with]'. The
Chamber decided to adjourn the hearing 'in order to overcome deficiencies
concerning the legal characterisation of the facts' and noted that it would
only be 'in a position to make its final determination on the merits of the
case' after the Prosecutor's submission of the requested changes.
This decision
does not concern the substantive crimes with which Bemba has been charged,
but rather the appropriate mode of liability under which Bemba should be
charged for those crimes. The question is whether Bemba should face charges
under Article 25 of the Statute, which deals with 'individual criminal
responsibility', or whether, alternatively, he should face charges under
Article 28, which deals with 'the responsibility of commanders and other superiors'.
While both
modes of liability were raised and treated as potential outcomes by the
parties during the confirmation hearing proceedings, the Arrest Warrant
application filed by the Prosecutor in May 2008, along with the document
containing the charges filed subsequent to Bemba's arrest and transfer to The Hague, contemplates Bemba's liability only under Article
25. In this decision the Chamber has made it clear that it doesn't at this
point see Article 25 liability as being supported by the evidence submitted
in the confirmation hearing. The Chamber acknowledged that the Prosecutor had
explicitly noted in the charging document that he was not 'excluding any
other applicable mode of liability'. Nonetheless, the Chamber ruled that
'considerations of fairness' to the accused require that the document
containing the charges be formally amended to include Article 28 as a mode of
liability and that there must be an adjournment to allow time (1) for the
charging document to be amended and filed, and (2) for the Defence to respond
to the amended form of the document.
On 30 March
2009 the Prosecutor filed an amended charging document which includes Article
28 as an alternative
mode of liability, rather than in substitution for Article 25(3)(a), making
it clear that the Prosecutor continues to view Article 25(3)(a) as the
primary mode of liability. In a brief explanatory document filed with the
amended charging document, he submits that 'the charges should preserve the
choice for a future Trial Chamber by preserving its flexibility to render a
determinative ruling on the appropriate form of [liability] having heard in
full all of the evidence pertaining to the case'.
The legal
representatives for the victims participating in the case were given until 9
April to submit their observations on the amended charging document and the
Defence was given until 24 April to file its response. The Chamber has 60
days from the filing date of the last written submission to render its
decision on the confirmation of charges. On that basis, it is unlikely there
will be a decision until late June. The Women's Initiatives for Gender
Justice will continue to monitor these proceedings closely and will provide
updates as events in the Bemba case unfold.
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Uganda
:: Decision on admissibility in the case against
Kony et al
On 10 March
2009 Pre-Trial Chamber II issued a decision on the admissibility of the case against
Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen. This case,
the only one to date arising from the Prosecutor’s investigation into the
conflict in Northern Uganda, began in September 2005 with the issue of Warrants of
Arrest for these four suspects. (A fifth suspect in the case, Rasko
Lukwiyo, has since been confirmed dead and proceedings against him were
discontinued in July 2007.)
None of these
suspects has yet been apprehended and the Chamber's repeated Requests for
Cooperation to the Government of Uganda (GoU) — who initially referred the
situation to the Court — have resulted in little substantive response. In
October 2008, the Chamber initiated proceedings under Article 19(1) of the
Rome Statute to determine whether the Court continues to have jurisdiction
over the case against Kony et
al. The Chamber's action was taken in the context of developments
in Uganda involving the Agreement on Accountability and
Reconciliation and Annexure negotiated as part of the Peace Talks between the
GoU and the LRA. These developments include steps towards the establishment
of a Special Division of the High Court of Uganda designed to try individuals
alleged to have committed serious crimes during the conflict, and more recent
statements made by the Government of Uganda that it was now prepared to try
Kony and the others on Ugandan soil.
However, it
should be noted that, under provision 4.1 of the Agreement on Accountability
and Reconciliation, 'state actors shall be subjected to existing criminal
justice processes and not to special justice processes under this Agreement’.
This means that military personnel and possibly other
Government-related individuals alleged to have committed serious crimes
during the conflict would be dealt with either through the Ugandan military
tribunal or the existing justice procedures. As such, it should be
borne in mind that the Special Division of the High Court is essentially
intended as a Court to try the LRA only.
Prior to
making its determination of the admissibility of the case, the Chamber sought
and received submissions from the Government of Uganda, the Prosecutor and
the Office of Public Counsel for Victims (OPCV), as well as from a specially
appointed ad hoc
counsel for the suspects. It also accepted an amicus curiae brief from two organisations
working with victims in Northern Uganda.
In its
decision on admissibility, the Chamber concluded that it was both 'legitimate
and appropriate for [it] to exercise the power enshrined in Article 19(1) at
this particular stage'. The Chamber held that statements by the Government of
Uganda to the Court concerning the meaning and scope of the Agreement and the
Annexure were 'ambiguous … as to where and by whom the alleged perpetrators
of atrocities should be tried' and pointedly noted that such statements not
only demonstrated a lack of clarity on the part of Uganda but were internally
contradictory. The Chamber also noted that the Peace Agreement remained
unsigned and that the steps taken to implement the Annexure were only
'preliminary and partial'. The Chamber ruled that it would be 'premature and
therefore inappropriate' to assess the features envisaged for the new court
or to examine its legal framework and concluded that 'the purpose of the
[admissibility determination] proceedings remains limited to dispelling
uncertainty as to who has ultimate authority to determine the admissibility
of the Case: it is for the Court, and not for Uganda, to make such
determination'.
This
Pre-Trial Chamber decision has been appealed by the court-appointed Defence
counsel who is charged with preserving the rights of the accused in the
proceedings. The appeal documents have also been formally transmitted by the
Registry to the Government of Uganda.
From 1-4 June
2009, the Women's Initiatives for Gender Justice will conduct a workshop in
Soroti, Northern Uganda, with 40 women from different regions of the Greater
North. This workshop will include an overview of the Agreement and Annexure,
presentations and group work on formal accountability mechanisms and
alternative justice mechanisms, and the possible impact of both for women.
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Darfur ::
Update on Arrest Warrant proceedings
As reported
in our March issue, on 4 March 2009 Pre-Trial Chamber I issued a Warrant of
Arrest for Omar Hassan Ahmad Al'Bashir, the sitting President of Sudan, for
his alleged role in crimes committed in Darfur.
In this issue, we provide an analysis of the decision issued by the Chamber
along with the Arrest Warrant and information on steps taken by the Court and
the Prosecutor subsequently.
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Jurisdiction
The Chamber
ruled that the case against Al'Bashir fell within the jurisdiction of the
Court. It also ruled that Al'Bashir's 'position as current Head of a state
which is not a party to the Rome Statute' had no effect on the Court's
jurisdiction in a case against him. The Chamber noted that one of the core
goals of the Statute is to put an end to impunity for the perpetrators of the
most serious crimes of concern to the international community as a whole,
'which must not go unpunished'. The Chamber also noted that Article 27 of the
Statute explicitly provides that there is no immunity for Heads of State
before the ICC.
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War crimes
The factual
matrix behind the charges sought by the Prosecutor involves hundreds of
unlawful attacks on towns and villages throughout the Darfur region inhabited by members of the Fur, Masalit and
Zaghawa groups between 2003 and 2008. The Prosecutor submitted, and the
Chamber accepted, that these attacks took place in the context of 'a
protracted armed conflict not of an international character', as this is
defined in Article 8(2)(f) of the Statute. The Chamber ruled that the attacks
were a 'core component' of a counter-insurgency campaign pursued by the
Government of Sudan using the Sudanese Armed Forces and their allied
Janjaweed Militia, the Sudanese police forces, the National Intelligence and
Security Service (NISS) and the Humanitarian Aid Commission (HAC).
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Crimes against humanity
The
Prosecutor also submitted that the attacks were 'widespread and systematic'
and again the Chamber agreed. The Chamber ruled that the attacks were 'large
in scale', affecting 'hundreds of thousands of individuals', and took place
in 'large swathes of the territory of the Darfur region' for 'well over five years' and 'followed, to a
considerable extent, a similar pattern'. The Chamber ruled that there were
reasonable grounds to believe that thousands of civilians belonging primarily
to the Fur, Masalit and Zaghawa groups were murdered, and that some of the
murders amounted to 'acts of extermination' because of the large numbers of
civilians killed at one time. The Chamber also ruled that there were
reasonable grounds to believe that hundreds of thousands of civilians had
been subject to forcible transfer by Sudanese Government forces, that
civilians from the Fur, Masalit and Zaghawa groups had been subjected to acts
of torture in the aftermath of the attacks on the towns and villages, and
that 'thousands of civilian women belonging primarily to the [target] groups'
were raped by Sudanese Government forces and their allied Janjaweed Militia.
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Genocide
In the
application for the Arrest Warrant filed on 14 July 2008, the Prosecutor
requested that the Arrest Warrant also be issued in respect of the crime of
genocide, under Article 6 of the Statute. He argued that Al'Bashir should
bear criminal responsibility for three counts of genocide for (1) killing of
members of the Fur, Masalit and Zaghawa ethnic groups; (2) causing serious
bodily or mental harm to members of these groups, including by torture and
rape, and (3) deliberately inflicting on these groups 'conditions of life
calculated to bring about the groups' physical destruction'.
The Chamber
was unable to arrive at a unanimous decision in respect of this crime. The
majority was not satisfied that the evidence submitted by the Prosecutor was
sufficient to allow it to find reasonable grounds to believe that the
Government of Sudan, with Al'Bashir at its helm, acted with a specific
genocidal intent 'to destroy in whole or in part the Fur, Masalit and Zaghawa
groups'. However, in a separate and partly dissenting opinion, Judge Ušacka
noted that she was satisfied that there were reasonable grounds to believe
that Al'Bashir 'possessed genocidal intent and is criminally responsible for
genocide'. The essence of her divergence with the majority of the Chamber
concerns, first, what is the appropriate evidentiary burden on the Prosecutor
at the stage of an Arrest Warrant application and, second, the conclusions
which can be drawn from an analysis of the evidence presented by the
Prosecutor.
In the view
of Judge Ušacka, the majority of the Chamber had misinterpreted the
requirements of the Statute, holding the Prosecutor to a higher evidentiary
burden than was applicable at this preliminary stage of the proceedings.
Judge Ušacka concluded that, when analysed using the appropriate evidentiary
burden, the evidence presented by the Prosecutor was sufficient to support
findings that
a.
there were reasonable grounds to believe that the Fur, Masalit
and Zaghawa groups were targeted as the result of a perception of an
affiliation between these groups and the rebels;
2.
it was reasonable to infer that Al'Bashir possessed the intent
to destroy the Fur, Masalit and Zaghawa groups as such;
3.
none of the evidence submitted by the Prosecutor renders an
inference of genocidal intent unreasonable;
4.
there were reasonable grounds to believe that both mass
killings and murders took place in the context of a widespread and systematic
attack on the Fur, Masalit and Zaghawa groups as such;
5.
there were reasonable grounds to believe that acts of torture,
forcible transfer and rape occurred in the context of the widespread and
systematic attack on these groups; and
6.
there were reasonable grounds to believe that these groups
were subjected to conditions calculated to bring about the destruction of the
groups as such.
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Mode of liability
The Chamber
found that there were reasonable grounds to believe that 'a common plan to
carry out a counter-insurgency campaign against [Darfurian rebel groups] was
agreed upon at the highest level of the Government of Sudan, by Omar
Al'Bashir and other high-ranking Sudanese political and military leaders' and
that the unlawful attacks, forcible transfers and acts of murder,
extermination, rape, torture and pillage were all part of this 'common plan'.
Further, the Chamber found that there were reasonable grounds to believe that
Al'Bashir, as 'de jure
and de facto
President of the State of Sudan and Commander-in-Chief of the Sudanese Armed
Forces' at all relevant times, 'played an essential role in coordinating the
design and implementation of the common plan'. As such, the Chamber
concluded, there are reasonable grounds to believe that Al'Bashir is
criminally responsible under Article 25(3)(a) of the Statute as either an
indirect perpetrator or an indirect co-perpetrator of crimes against humanity
and war crimes. Furthermore and in the alternative, the Chamber held that
there were reasonable grounds to believe that Al'Bashir
a.
played a role that went beyond coordinating the implementation
of the common plan;
2. was in
full control of all branches of the 'apparatus' of the State of Sudan,
including the Sudanese Armed Forces and their allied Janjaweed Militia, the
Sudanese police forces, the NISS and the HAC; and
3. used
such control to secure the implementation of the common plan.
Necessity for an Arrest Warrant
The Chamber
ruled that Al'Bashir's arrest appeared to be necessary under Article 58(1)(b)
of the Statute to ensure that (1) he will appear before the Court to answer
the charges against him; (2) he will not obstruct or endanger the ongoing
investigation into the crimes for which he is alleged to be responsible; and
(3) he will not continue with the commission of the above-mentioned crimes'.
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Requests for cooperation
Subsequent to
the issue of the Arrest Warrant and on the instructions of the Chamber, the Registrar
prepared and transmitted three Requests for Cooperation in the arrest and
surrender of Al'Bashir. The first of these, dated 5 March 2009, is addressed
to the Republic of Sudan. In it, the Chamber recalls that the situation in
Darfur had originally been referred to the Court in 2005 as a result of a UN
Security Council resolution (Resolution 1593), paragraph 2 of which 'urges
all states … to cooperate fully' with the Court. The second request, dated 6
March 2009, addressed to 'All States Parties to the Rome Statute', reminds
States Parties of their statutory obligation to comply with all Requests for
Cooperation. The third request, also dated 6 March 2009, is addressed to 'All
United Nations Security Council members who are not States Parties to the
Rome Statute' — a group which includes three of the five permanent members of
the Security Council (China, Russia and the United States) as well as three
of the ten current non-permanent members (Libya, Turkey and Vietnam). In the
request, these UN Security Council members are reminded of Resolution 1593
and, in particular, of paragraph 2 of the Resolution.
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The Prosecution's application for leave to
appeal
On 10 March
2009, the Prosecutor filed an application for leave to appeal the refusal of
Pre-Trial Chamber I to include charges for genocide on the Arrest Warrant.
Following the reasoning of Judge Ušacka in her dissent, the Prosecutor argues
that the majority decision of the Chamber 'imposes an evidentiary burden that
is inappropriate for this early procedural stage' and that the majority of
the Chamber had '(a) considered extraneous factors for the purposes of its
determination as to whether the evidence established reasonable grounds to
believe that [Al'Bashir] had committed genocide; and (b) failed to properly
consider, both separately and collectively, critical evidence adduced by the
Prosecution'. The Prosecutor submitted that the decision 'contains fundamental
errors that not only invalidate it, but will also unavoidably taint any
subsequent assessment of fresh evidence brought by the Prosecution, thus
affecting the fair and expeditious conduct of the proceedings'. A decision on
the Prosecutor's leave application is anticipated shortly.
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