In early June the International Criminal Court appeals chamber acquitted Jean-Pierre Bemba in a 3-2 ruling. Two years ago Bemba was sentenced to 18 years’ for his role, as military commander, for atrocities committed in Central African Republic (CAR).
The decision astounded observers. The unexpected, narrowly decided acquittal, brought scads of criticism. This was because Bemba’s 2016 conviction was considered hugely significant. It assigned criminal responsibility to a senior military official physically removed from the violence. It also made sexual violence a centrepiece of the charges.
Sexual violence, a staple of war, has long been absent from international criminal law’s charge sheets. By assigning Bemba responsibility for the rapes committed by fighters under his command, the 2016 judgment was seen as an important doctrinal advance for international criminal law.
Bemba’s acquittal has wide implications. This is true both for Bemba as well as the ICC and international criminal law. Bemba, who will shortly be released, is rumoured to be returning to Democratic Republic of the Congo (DRC) to pursue political goals. There are reports that his party, the Movement for the Liberation of Congo, known as the MLC, has nominated him as its candidate for the presidential race.
The prosecutor of the international criminal court has asked it to rule on whether it has jurisdiction over the deportations of Rohingya people from Myanmar to Bangladesh, a possible crime against humanity.
A ruling affirming jurisdiction could pave the way for an investigation into the deportation of many thousands of Rohingya, though Myanmar is unlikely to cooperate.
In a filing published on Monday, the court prosecutor, Fatou Bensouda, listed the well-documented mistreatment of Rohingya and cited the UN special envoy for human rights who described it as bearing the “hallmarks of genocide”.
She argued that although Myanmar was not a member of the court, the fact that part of the alleged crime took place on the territory of Bangladesh, which is a member, meant the court could seek powers of jurisdiction.
“The prosecution seeks ... to verify that the court has territorial jurisdiction when persons are deported from the territory of a state which is not a party to the statute directly into the territory of a state which is a party to the Statute,” the filing says.
“This is not an abstract question but a concrete one, affecting whether the court may exercise jurisdiction ... to investigate and, if necessary, prosecute.”
Bensouda argued that, given the cross-border nature of the crime of deportation, a ruling in favour of ICC jurisdiction would be in line with established legal principles.
But she acknowledged uncertainty around the definition of the crime of deportation and limits of the court’s jurisdiction.
Her request is the first of its kind filed at the court. She asked the court to call a hearing so that her arguments could be considered, as well as those of other interested parties.
The magistrate assigned to consider the request, Congolese judge Antoine Kesia-Mbe Mindua, will have considerable leeway in determining how to proceed.
According to the United Nations, some 700,000 mostly Muslim Rohingya fled their homes into Bangladesh after militant attacks in August last year triggered a military crackdown that the United Nations has said constitutes ethnic cleansing.
Myanmar, which has a majority Buddhist population and government, rejects that charge, saying its forces have been waging a legitimate campaign against Rohingya who attacked government forces. Many in Myanmar regard the Rohingya as illegal immigrants from Bangladesh.
Published on The Guardian on April 10, 2018
By FELIPE VILLAMOR
The International Criminal Court said on Thursday that it was opening a preliminary investigation into accusations that President Rodrigo Duterte and other Philippine officials had committed crimes against humanity in the course of the government’s deadly crackdown on drugs.
Fatou Bensouda, a prosecutor for the international court, said in a statement that the inquiry would gauge whether there was enough evidence to build a case. She said she would be looking at events since July 1, 2016, “in the context of the ‘war on drugs’ campaign.”
“My office undertakes this work with full independence and impartiality,” Ms. Bensouda said. “As we do, we hope to count on the full engagement of the relevant national authorities in the Philippines.”
Harry Roque, a spokesman for the Philippine president, said that the government’s crackdown was a “legitimate police operation” and that the president welcomed The Hague-based tribunal’s decision.
“He is sick and tired of being accused of the commission of crimes against humanity,” Mr. Roque told reporters in Manila.
In a 77-page complaint filed to the tribunal in April, a Filipino lawyer accused Mr. Duterte and 11 other officials of mass murder and crimes against humanity. He called Mr. Duterte the “mastermind” of a campaign of extrajudicial killings that dated to the late 1980s, when he became mayor of the southern city of Davao, and that greatly escalated after he became president.
The lawyer, Jude Josue Sabio, represented two men who said they had been assassins for Mr. Duterte in Davao.
“I am elated and vindicated,” Mr. Sabio said, adding that he was “confident we will hurdle this first big step, and hopefully a warrant of arrest will be issued by the I.C.C. against Duterte and his cohorts.”
Mr. Duterte, who has bragged about personally killing criminals as mayor of Davao, won the presidency promising to fill Manila Bay with the bodies of drug addicts. After taking office, he urged the police to kill drug suspects and promised to protect officers from prosecution. Thousands of Filipinos have been killed by the police, in what the authorities said were shootouts, or by unidentified gunmen.
Last year, after an outcry over the killings of three teenagers by police officers, Mr. Duterte suspended the police operations and put the antidrug campaign in the hands of the Philippine Drug Enforcement Agency. But he put the police back in charge in December. Last week, the police said that 46 people suspected of using or selling drugs had been killed by the policesince then.
That brought the police’s official death toll from the campaign to over 4,000, a number much lower than the estimated 12,000 deaths reported by various international and local rights groups.
Senator Antonio Trillanes, a prominent political foe of Mr. Duterte, said the news of a preliminary inquiry “should jolt Duterte into realizing that he is not above the law. More important, this is the first step for the victims’ families quest for justice.”
Mr. Roque, the presidential spokesman, played down the significance of the inquiry, saying that the tribunal prosecutor was “merely exercising his mandate to determine whether there is reasonable basis to proceed.”
The tribunal can take cases only if a country’s own judicial system is unable or unwilling to pursue them, a condition that Mr. Roque said did not apply to the Philippines. “We view, of course, this decision of the prosecutor as a waste of the court’s time and resources,” he said.
Published on The New York Times on February 8, 2018
On 15 December 2017, Trial Chamber II of the International Criminal Court (ICC) issued a decision setting the amount of Thomas Lubanga Dyilo's liability for collective reparations at USD 10,000,000. The decision completes the Order for Reparations of 3 March 2015 in the case of The Prosecutor v. Thomas Lubanga Dyilo, which awarded collective reparations to the victims of the war crimes committed by Mr Lubanga, namely: conscripting and enlisting children under the age of 15 into an armed group (Union des patriotes congolais/Forces patriotiques pour la libération du Congo) and using them to participate actively in hostilities.
The Chamber examined a sample of 473 applications representative of all of the victims potentially eligible for reparations and concluded that 425 of them were most likely direct or indirect victims of the crimes of which Mr Lubanga was convicted. The Chamber stated, however, that further evidence established the existence of hundreds or even thousands of additional victims affected by Mr Lubanga's crimes. The Chamber also stated in this respect that some potential victims were no longer willing or able to take part in the reparations process for safety reasons.
The Chamber recalled that the scope of a convicted person's liability is proportionate to the harm caused and, among other things, his or her participation in the commission of the crimes for which he or she has been found guilty, in the specific circumstances of the case. The Chamber further recalled that only collective reparations were awarded in this case. The Chamber assessed the harm suffered by the aforementioned 425 persons recognized as victims of Mr Lubanga at USD 3,400,000, and equitably assessed Mr Lubanga's liability exclusive of the harm suffered by those persons at USD 6,600,000 – bringing the total amount of Mr Lubanga's liability for collective reparations to USD 10,000,000.
In view of Mr Lubanga's indigence, the Chamber invited the Board of Directors of the Trust Fund for Victims to examine the possibility of earmarking an additional amount for the implementation of collective reparations in this case and/or continuing its efforts to raise additional funds. The Chamber also instructed the Trust Fund to make contact with the Government of the Democratic Republic of the Congo (DRC) to explore how the Government might contribute to the reparations process.
On 21 October 2016, the Chamber had approved the implementation of symbolic collective reparations and, on 6 April 2017, it had approved the first stage of the implementation of service-based collective reparations, directing the Trust Fund to begin the selection of implementing partners (after which the Chamber may approve the second stage of the implementation process). The Chamber will decide in due course on the next steps in the implementation of collective reparations.
The members of the Trial Chamber II Bench are Judge Marc Perrin de Brichambaut (Presiding Judge), Judge Olga Herrera Carbuccia and Judge Péter Kovács. The Chamber issued its decision publicly in a hearing at the seat of the ICC in The Hague, Netherlands. The Legal Representatives of both groups of victims, the Office of Public Counsel for Victims, the Defence and the Trust Fund were in attendance.
Published on the ICC on December 15, 2017
By Eric Oteng
Two Africans have been elected as judges of the International Criminal Court in the Hague, the Netherlands during the Assembly of State Parties meeting in New York on Wednesday.
The election procedure required a two/thirds majority of eighty votes for one to be elected as a judge of the International Court which adjudicates on cases of genocide, war crimes and crimes against humanity..
After four rounds of voting, Justice Reine Alapini-Gansou from Benin and Justice Solomy Bossa of Uganda got elected with a total of eighty three (83) and eighty one (81) votes respectively.
Ghana’s Henrietta Mensa-Bonsu failed in her bid to join the court as she ended with a total of sixty votes which fell short of the votes required.
Elected judge of the ICC, Reine Alapini Gansou is a Lawyer to the Bar of Benin since 1986 and Law lecturer at the University of Abomey-Calavi (Benin) since 2000.
Justice Alapini Gansou is the Chairperson of the African Commission on Human and People’s Rights since 2009.
She has been a member of the Commission since 2005 and was formerly the Special Rapporteur on Rights of Human Rights Defenders in Africa (2005-2009).
She served as a member of the UN Permanent Court of Arbitration since July 19, 2011, and Laureate of the Prize of Human Rights for the Fiftieth year of African Countries independence in 2010.
Her good works saw her selected as a member of the United Nations International Commission of Inquiry on post-electoral violence in Cote d’Ivoire (May-June 2011)
She holds two High Level University degrees, in Common Law at the University of Lyon in 2007 and in Environmental Law and Politic at the University of Lome, Maastricht and Bhutan in 1999.
She is also an author and co-author of research papers in Human rights and Law.
Justice Solomy Balungi Bossa on the other hand is a national of the Republic of Uganda who was elected Judge of the African Court on Human and Peoples’ Rights in June 2014, for a term of six years.
She has served as Judge with the High Court or Uganda for sixteen years (1997-2013).
She also served the East African Court of Justice for five years (2001-2006), the United Nations International Criminal Tribunal for Rwanda (UNICTR) for nine and half years (2003-2013) and currently serves as Judge on the Court of Appeal/Constitutional Court for Uganda.
She was once a Lecturer/Law Reporter at the Law Development Centre of Uganda for seventeen years (1981-1997).
She is a member of the International Commission of Jurists, the international Association of Women Judges, the African Centre for Democracy and Human Rights and the East African Judges and Magistrate’s Association, among others.
At national level, she is a member of International Federation of Women Lawyers (FIDA) Uganda Chapter, the National Association of Women Judges, and the Uganda Association of Judges and Magistrates.
She also participated through the aegis of the International Commission for Jurists, in the initial stages of drafting of the Additional Protocol on Women to the African Charter.
She holds a Bachelor of Law Degree (LL.B) Honors from Makerere University.
She is a candidate for a Master of Law Degree (LL.M) from the University of London.
She has received various national, regional and inter-national awards in recognition of her distinguished services as a legal practitioner, judge and human rights activist.
The two African justices join four others from Japan, Canada, Peru and Italy to fill six slots available.
Published on Africa News on December 7, 2017
THE PROSECUTOR OF THE INTERNATIONAL CRIMINAL COURT, FATOU BENSOUDA, REQUESTS JUDICIAL AUTHORISATION TO COMMENCE AN INVESTIGATION INTO THE SITUATION IN THE ISLAMIC REPUBLIC OF AFGHANISTAN.
The Situation in Afghanistan has been under preliminary examination by the Office of the Prosecutor since 2006. After a comprehensive and careful scrutiny of the information available to the Office, applying the applicable Rome Statute legal criteria, the Prosecutor has determined that there is a reasonable basis to proceed with an investigation of the Situation in Afghanistan.
As required by the Statute, the Prosecutor has, therefore, requested authorisation from Pre-Trial Chamber III, for an investigation into alleged crimes committed on the territory of Afghanistan in the period from 1 May 2003, as well as other alleged crimes linked to the armed conflict in Afghanistan and committed on the territory of other States Parties to the Statute, since 1 July 2002. The Court does not have jurisdiction over alleged crimes committed in the context of the Situation in Afghanistan before these cut-off dates.
As a result of its examination, the Office of the Prosecutor has determined that there is a reasonable basis to believe that the following categories of crimes within the Court's jurisdiction have occurred:
The Office has carefully assessed available information on any relevant, genuine national proceedings in relation to the conduct of these identified groups. In light of the gravity of the acts committed - the details of which are outlined in the Request - and the absence of relevant national proceedings against those who appear to be most responsible for the most serious crimes within this Situation, the Prosecutor considers that the potential cases that she has identified and that would arise from an investigation in this Situation, would be admissible pursuant to article 53(1)(b) of the Statute.
Furthermore, the Office has determined that there are no substantial reasons to believe that the opening of an investigation would not serve the interests of justice, taking into account the gravity of the crimes and the interests of victims.
Today, as per the applicable rules, the Prosecutor also notified victims or their legal representatives, of her intention to request authorisation to initiate an investigation in the Situation in Afghanistan informing them that they have until 31 January 2018 to submit representations to the Judges of Pre-Trial Chamber III on her Request.
If the Pre-Trial Chamber authorises the Prosecutor to begin an investigation, as mandated by the Rome Statute, the Office's sole objective will be to independently, impartially and objectively investigate and prosecute alleged war crimes and crimes against humanity, committed in the context of the conflict in Afghanistan.
Based on the evidence collected by the Office during the course of an investigation, if authorised, the Prosecutor can request ICC Judges to issue either summons to appear or arrest warrants, against those, as a rule, believed to be most responsible, no matter who the perpetrator, for alleged atrocity crimes committed in connection with the Situation in Afghanistan.
Published on the ICC on November 20, 2017.
ICC prosecutor urges handover of Al-Saiqa brigade commander, others wanted for alleged crimes in Libya
The International Criminal Court has issued an arrest warrant for Major Mahmoud Mustafa Busayf al-Werfalli, a commander in the Al-Saiqa Brigade accused of murdering 33 people in the context of the ongoing conflict in Libya, ICC Prosecutor Fatou Bensouda told the United Nations Security Council.
Addressing the Council in New York, the Prosecutor also urged the international community to turn over Al-Tuhamy Mohamed Khaled, former head of the Libyan Internal Security Agency, and Saif Al-Islam Gaddafi.
Mr. Busayf Al-Werfalli, is a commander in the Benghazi-based Al-Saiqa Brigade, who, according to Ms. Bensouda, has been – and possibly still is – active in the Libyan National Army’s (LNA) ‘Operation National Dignity.’
In her remarks to the Council, the ICC Prosecutor appealed directly to General Khalifa Haftar, head of the Libyan National Army, “to demonstrate, by concrete actions, respect for international justice by ensuring Mr al-Werfalli’s immediate transfer to the Libyan authorities so that he may be surrendered to the court without delay.”
“My Office continues to request States Parties, non-States Parties and organizations to assist in securing the arrest of persons subject to an ICC warrant,” Ms. Bensouda told the Council.
The call for accountability comes amidst continued concern over the security situation in Libya, which has been in conflict since a disputed election in 2014 following the 2011 toppling of long-time leader Muammar Gaddafi.
In recent months, Ms. Bensouda said she noted “with grave concern” reports of unlawful killings, including the execution of detained persons; kidnappings and forced disappearances; torture; prolonged detentions without trial or other legal process; and arbitrary detention, torture, rape, and other ill-treatment of migrants in official and unofficial detention centres.
Reports have also emerged that 36 male corpses were found in the totem of al-Abyar, outside of Benghazi.
“This is also of grave concern,” she said. “The bodies were reportedly handcuffed, showed signs of torture, and displayed bullet wounds to the head.”
The prosecutor also echoed Ghassan Salamé in condemning recent airstrikes in a residential neighbourhood in Derna that appear to have resulted in the tragic deaths of civilians, including at least 12 children and women.
Published on UN News Centre on November 8, 2017.
Burundi has become the first country to withdraw its membership from the International Criminal Court (ICC).
It accused the ICC of deliberately targeting Africans for prosecution.
The government of Burundi is accused of committing crimes against humanity, including execution and torture. The UN Commission of Inquiry is urging the ICC to open a prosecution soon.
In theory its withdrawal from the ICC has no effect on the court's ongoing investigations on the country.
Fadi El-Abdallah, a spokesman for the ICC, told the BBC's Newsday programme that "article 127 states that withdrawal does not affect the jurisdiction of the ICC over the crimes that have been committed" while the country was a member.
But the case of Sudan's President Omar al-Bashir, one of the ICC's "most wanted", has highlighted the difficulty of getting a non-member to co-operate in surrendering suspects.
The withdrawal comes a year after Burundi lodged an official notice to quit the organisation, which has 122 member countries, 34 of which are African nations.
In 2015, Burundi saw major unrest and a crackdown by the security forces after President Pierre Nkurunzize decided to run for office for a third time, leading to protests from the opposition which deemed it unconstitutional.
The BBC's Anna Holligan in The Hague, where the ICC is based, says Burundi's decision to leave the ICC is unprecedented - a statement that if you don't like the focus of the prosecutor, you can simply leave.
She adds that the real impact - and whether or not it creates a domino effect - will be determined by what happens next.
Kenya and South Africa have made similar threats to withdraw their membership.
Published on BBC News on October 27, 2017.
By Marlise Simons
Sudan’s president, who is wanted on charges of genocide and war crimes in his country, could soon find it harder to travel abroad.
On Thursday, judges at the International Criminal Court strongly criticized South Africa for failing to arrest the president, Omar al-Bashir, when he visited Johannesburg for an African Union meeting in 2015.
The court explicitly rejected South Africa’s argument that al-Bashir enjoyed immunity, as a head of state, while leading Sudan’s delegation to the meeting.
Al-Bashir has evaded the reach of international law since the court first issued a warrant for his arrest in 2009. Just this week, it was announced that he had accepted an invitation to visit Moscow.
Watching who shuns and who invites al-Bashir has become something of an international parlor game.
But the underlying question could not be more grave: Will a sitting head of government, wanted for crimes against humanity over his government’s violence against civilians in the Darfur conflict, be held accountable under international law?
The court holds out hope that the answer will be yes.
There should have been no doubt about al-Bashir’s claim of immunity, a panel of three judges said, because on the eve of his arrival, South African diplomats had consulted with the court and were explicitly told that as a member of the court, South Africa was obliged to arrest and surrender him.
The judges declined to formally refer the matter to the United Nations Security Council, saying that doing so had not borne results in the past, and noting that South Africa’s own courts had criticized the government for violating its legal commitments.
In a noteworthy move, however, one of the judges, Marc Perrin de Brichambaut, argued that South Africa and Sudan were under an obligation to arrest al-Bashir, because they are both signatories to the UN genocide convention, which took effect in 1951. A total of 147 countries have ratified that treaty, more than the 124 that have joined the International Criminal Court.
By highlighting the significance of the genocide treaty — and not merely the International Criminal Court itself — the ruling could open new avenues for litigation by rights activists, and could raise the political cost for some countries to receive a fugitive from war crimes and genocide charges.
Al-Bashir has been charged — though not tried — for genocide involving three African tribes in Darfur.
Violence in the region of western Sudan erupted in 2003 between the Arab-dominated government and non-Arab rebel groups.
According to prosecutors, government militia gangs, backed by military and police helicopters, were unleashed from 2003 to 2008 to burn hundreds of villages, bomb schools and poison wells, and they also engaged systematically in looting and in the rape of women and girls.
The United Nations estimates that about 300,000 people died and more than 2 million were uprooted in years of fighting. In 2005, it asked the International Criminal Court, based in The Hague, to investigate.
The court issued an arrest warrant against al-Bashir in 2009 and ordered him to face charges of war crimes and crimes against humanity over attacks on civilians in Darfur. Judges later added three counts of genocide.
Published on the Boston Globe on July 6, 2017.
Culture of Impunity Must End for Justice to Prevail in Darfur, International Criminal Court Prosecutor Tells Security Council
FATOU BENSOUDA, Prosecutor of the International Criminal Court, presenting her twenty-fifth report on the situation in Darfur, said hope for justice was high. The evidence obtained from courageous witnesses had provided the basis for multiple arrest warrants, including for Omar Al-Bashir, Ahmad Harun, Abdel Raheem Hussein, Ali Kushayb and Abdallah Banda. “Let us not forget, these men stand accused of multiple charges for some of the world’s most serious crimes as foreseen under the Rome Statute,” she added. Despite budgetary constraints, her office was as determined as ever to pursue justice.
While progress had been made, serious problems persisted, she continued. There were reports that the Sudanese army, supported by the Rapid Support Forces, had clashed with armed opposition movements in North and East Darfur. Internally displaced persons continued to be subjected to multiple crimes, including alleged attacks against their camps and sexual and gender-based violence. There was a worrisome increase during the reporting period of arrests and prolonged detentions of human rights activists and political opponents of Sudan’s Government. Lasting peace in Darfur could only be achieved if the root causes of the conflict were addressed, she said. That included tackling the pervading toxic culture of impunity in Darfur for Rome Statute crimes. Calling on the Council to provide tangible support to her Office, she reiterated her request for the Council’s assistance in facilitating financial assistance by the United Nations.
Before the July judicial recess, a Pre-Trial Chamber of the Court would decide whether South Africa acted in non-compliance with the Rome Statute when it failed to arrest and surrender Mr. Al-Bashir in June 2015, Ms. Bensouda said. That decision would include whether to refer South Africa to the Assembly of States Parties to the Rome Statute. In terms of travel to States Parties, Mr. Al-Bashir had travelled to Jordan, which also had declined to arrest and surrender him. Inviting, facilitating or supporting the international travel of any person subject to an International Criminal Court arrest warrant was inconsistent with a commitment to international criminal justice. It was also an affront to the victims in Darfur. The Council had the power to influence States — whether or not they were parties to the Rome Statute — to assist in the efforts to arrest and surrender the Darfur suspects. That also applied to regional organizations.
At a minimum, the Council must demonstrate its support for the work of the Prosecutor’s Office by taking concrete action in response to decisions of non-compliance or non-cooperation referred to it by the Court, she continued. To date, there had been 13 such decisions, and yet not one had been acted upon by the Council. She urged the 15-member body to give serious consideration to the proposals to respond to such referrals by the Court. The Council must also invite the Government of Sudan to demonstrate its commitment to combating impunity. Noting the challenges in securing cooperation from several States, she urged the Council to renew its engagement in relation to the arrest and surrender of the Darfur suspects. “It is imperative that we work together to restore faith and renew hope that justice for the victims in Darfur will finally be realized,” she added.
Published on the UN website on June 8, 2017.