Monday, March 25, 2013

AMICC Releases Two New Advocacy Documents on Victims' Participation at the ICC

By Karen Corrie

The International Criminal Court (ICC) is the first international criminal tribunal to allow victims to participate actively and independently in proceedings. It seeks to balance the rights of the Defense and the need for efficient proceedings with meaningful victims’ participation. While loosely defined in the ICC’s foundational texts, the victims’ participation scheme has been shaped, tested, and refined through the ICC’s first cases. The ICC’s judges have remained mindful of the balance victims’ participation must strike, but the ICC still struggles to process the thousands of applications victims submit seeking to participate. To fulfill its mandate, the ICC is testing new methods of processing applications to participate and new procedures for their participation in the proceedings.

This paper outlines how victims’ participation works at the ICC and provides information and advocacy points on issues relevant to it:

Victims' Participation at the ICC: Purpose, Early Developments and Lessons, by Karen Corrie (March 25, 2013)

+ companion Questions & Answers

US Secretary of State John Kerry's Statement Welcoming Transfer of Ntaganda to the ICC

The State Department issued this statement in anticipation of Bosco Ntaganda's transfer to the ICC:
The United States welcomes the removal of one of the most notorious and brutal rebels in the Democratic Republic of the Congo, Bosco Ntaganda, from Rwanda to the International Criminal Court in The Hague. This is an important moment for all who believe in justice and accountability. For nearly seven years, Ntaganda was a fugitive from justice, evading accountability for alleged violations of international humanitarian law and mass atrocities against innocent civilians, including rape, murder, and the forced recruitment of thousands of Congolese children as soldiers. Now there is hope that justice will be done.
Ultimately, peace and stability in the D.R.C. and the Great Lakes will require the restoration of civil order, justice, and accountability. Ntaganda’s expected appearance before the International Criminal Court in The Hague will contribute to that goal, and will also send a strong message to all perpetrators of atrocities that they will be held accountable for their crimes.
The United States is particularly grateful to the Rwandan, Dutch, and British Governments for their cooperation in facilitating the departure of Bosco Ntaganda from Rwanda and his expected surrender to The Hague.
Ntaganda is expected to make an initial appearance at the Court tomorrow, March 26 at 11am local time in The Hague. The hearing will be webcast.

Friday, March 22, 2013

Bosco Ntaganda Now in ICC Custody Following Voluntary Surrender, United States Cooperation

The ICC confirmed today that Bosco Ntaganda, an ICC suspect since 2006 and wanted for war crimes and crimes against humanity allegedly committed in the Democratic Republic of the Congo, is now in the Court's custody and is on his way to The Hague. The transfer follows Ntaganda's unexpected surrender to the US Embassy in Kigali, Rwanda, and US cooperation to honor the suspect's request.

Read the ICC Prosecutor's statement.

Monday, March 18, 2013

Bosco Ntaganda, Wanted by ICC Since 2006, Turns Himself in to US Embassy, Asks to be Sent to ICC

Bosco Ntaganda. Photo credit: STR New/Reuters

Bosco Ntaganda, wanted by the ICC since August 2006 for the war crime of enlisting and using child soldiers, and since July 2012 for seven additional counts of war crimes and crimes against humanity, including gender-based and sexual violence crimes, today handed himself into the US Embassy in Kigali, Rwanda, and asked to be transferred to the ICC. US State Department Spokesperson Victoria Nuland said:

I can confirm that this morning Bosco Ntaganda, and ICC indictee and leader of one of the M23 factions, walked into U.S. Embassy Kigali. He specifically asked to be transferred to the ICC in the Hague. We are currently consulting with a number of governments, including the Rwandan government, in order to facilitate his request.
We want to facilitate that request. As you know, we strongly support the work that the ICC is doing to investigate the atrocities committed in the Democratic Republic of the Congo, and we are going to continue to work with the ICC in this matter [emphasis added].
Despite US legislation that restricts US cooperation with the ICC, there is little to prevent the US from facilitating the transfer to Ntaganda to the ICC.

Monday, March 11, 2013

Losing Key Evidence in Kenya Case, ICC Prosecutor Withdraws Muthaura Charges

Today ICC Prosecutor Fatou Bensouda announced the withdrawal of all charges against Francis Kirimi Muthaura, former Head of the Public Service and Secretary to the Cabinet of the Republic of Kenya. He was charged with five crimes against humanity (murder, deportation or forcible transfer of population, rape, persecution and other inhumane acts) as a co-defendant in the same case as Uhuru Kenyatta, the former deputy prime minister recently elected as Kenya's president. According Prosecutor's statement and filing, there is insufficient evidence to prosecute the case against Muthaura due to lack of cooperation from Kenya authorities and the decision not to use a key witness who reportedly recanted his testimony. Following a postponement, the trial against Kenyatta is set to begin on July 9, 2013.

Friday, March 08, 2013

Pre-Trial Chamber I to Decide If Laurent Gbagbo, Former President of Cote d'Ivoire, to Face Trial

Pre-Trial Chamber I held a confirmation of charges hearing for Laurent Gbagbo, former president of Côte d'Ivoire. Photo: Michael Kooren/Reuters
By Maryne Rondot

Pre-Trial Chamber I of the ICC held a confirmation of charges hearing from February 19-28 to decide whether the case of Laurent Gbagbo, the former president of Côte d’Ivoire, should go to trial. Following this hearing, the three-judges panel will determine within 60 days of the final filings whether Gbagbo case to confirm the charges.

Gbagbo, who was president of Côte d’Ivoire from 2000 to 2011, is allegedly responsible as indirect co-perpetrator for four counts of crimes against humanity, allegedly committed in the context of post-electoral violence in the territory of Côte d’Ivoire between December 16, 2010 and April 12, 2011. The charges under examination by the Pre-Trial Chamber include murder; rape and other sexual violence; persecution; and other inhuman acts. Côte d’Ivoire was not a state party to the ICC at the time of the alleged crimes but accepted the jurisdiction of the Court on April 18, 2003 by a declaration made in accordance with the Rome Statute. It ratified the Rome Statute on February 15, 2013 and will become a State Party on May 1, 2013. Following a formal investigation in the Prosecutor’s own initiative, the Court issued a warrant of arrest for Laurent Gbagbo on October 25, 2011. He was transferred to the ICC detention center at The Hague by Ivorian authorities on November 23, 2011. He is the first head of state to face the ICC.

During this public hearing, the Prosecutor and the defense presented their arguments to the three judges of Pre-Trial Chamber I. Victims also had the opportunity to intervene and present their views through their legal representatives.

Defense Arguments

The defense called for charges to be dropped around three main points. First, it contested the admissibility of the case before the Court pointing out that Côte d’Ivoire has shown its willingness and capacity to investigate and prosecute Gbagbo itself. The defense argued that the principle of complementarity guaranteed by the Rome Statute "is not an option recognized to national courts but rather an obligation." The second part of the defense strategy was to question the quality of the Prosecutor's work. In this regard, they claimed that the investigation was not conducted properly since it only relies on a "construction of events that has been put together by others" - meaning NGOs. It also pointed out that the process of the Prosecutor was objectionable because she referred to actual events but she drew "hazardous interpretations" from them in order to prove a supposed intention of Gbagbo to stay in power. For example, the defense criticized the fact that the Prosecutor interpreted the slogan of Gbago’s election campaign "Gagner ou gagner" ("Win or win") as one element proving its intention to remain in power. The defense argued that it is simply a popular expression even used by the national football team. The defense finally questioned the partiality of the ICC since it is not prosecuting the “Ouattara side” - referring to current President Alassane Outtara - even though it had also been accused of committing serious crimes during the post-electoral violence.

In a brief statement at the end of the confirmation of charges hearing on February 28, Gbagbo defended himself especially concerning his presumed intention to stay in power undemocratically. He declared, “I am here because I respected the constitution.” He claimed that he has been a strong advocate for democracy for a very long time because he believes it is the only way for Africa to build its nations. In his view, democracy helps to overcome tensions between heterogeneous groups and gives each of them a voice. He also explained that he believed his case will not be addressed properly without considering what happened during the elections. He argued that “democracy is not only the vote but who tells the result of the vote." He finally argued that this is the ones who lost the election, Ouattara and his allies, who caused the turmoil.

Prosecution Arguments
In response, the prosecution complained about the defense's last-minute application challenging the admissibility of the case, considering it as a delaying tactic. In her opening statement, the Prosecutor declared that her office would demonstrate that Gbagbo "bears the greatest responsibility for some of the worst crimes committed in Côte d’Ivoire during the post-election crisis of 2010-2011." She considered that there is evidence that Gbabgo and his inner circle "adopted a policy and common plan" to stay in power by any means including force. According to the prosecution, Gbabgo was not only aware of what was happening but he "was the one calling the shots." This is supported by evidence gathered by the OTP, including Gbagbo's orders to use the army against demonstrators or the appointment of his supporters to key positions in government and in the security services.

The prosecution also emphasized the necessity of bringing justice for the victims of the crimes. The prosecution claims that Gbagbo is responsible for the "killing of at least 166 persons, the rape of at least 34 women and girls, the infliction of serious bodily injury and suffering on at least 94 persons and for committing the crime of persecution against at least 294 victims." Regarding the issue of partiality, the Prosecutor argued that a second warrant of arrest was issued for Simone Gbagbo (the wife of the ex-president) and that the investigations will continue. This means that other warrant arrest could be issued and other persons could be tried.

Views of Victims
Paolina Massidda, the Principal Counsel within the Office of Public Counsel for Victims called for the confirmation of all the charges against Gbagbo. She corroborated the arguments of the prosecution, especially concerning the intention of Gbagbo through "a common plan" to remain in power. She also stated that the alleged crimes presented by the prosecution were widespread and generalized and targeted not only the "rebels" but the civil population, independent of any political stance. Massidda underlined the suffering of the victims. She mentioned the traumatic impact of those crimes on the lives of the victims, the loss of their means to survive, their stigmatization within the Ivorian society and the fact that some of them were still living near the alleged perpetrators of crimes. She concluded that the victims have the right to impartial justice and truth about the events that occurred and reparations through individual and collective processes.

The parties have the opportunity to submit written arguments following the hearing. Judges should make the decision to either send the case to trial by the end of June.