The past week has seen two important decisions by the International Criminal Court (ICC). On February 3rd, the Court’s Appeals Chamber reversed Pre-Trial Chamber I’s decision of March 2009 not to include the crime of genocide in the arrest warrant against President Al-Bashir of Sudan. The Appeals Chamber directed the Pre-Trial Chamber to decide anew whether the arrest warrant should be extended to cover the crime of genocide based on the correct standard of proof.

Convenor of the Coalition for the ICC, William R. Pace commented that “this ruling was hugely significant as it could lead to the inclusion of charges of genocide for a sitting head of state and for the first time in the history of the court” It is also a key decision for the people of Darfur. Niemat Ahmadi, of the Save Darfur Coalition, commented that “the pursuit of justice is extremely crucial for the survival of our hope as Darfuri people…The ICC’s commitment to justice has set a great example for the rest of the international community to follow.”

The 8th of February then saw the judges of Pre Trial Chamber I unanimously decline to confirm charges of war crimes against Darfur rebel leader Bahr Idriss Abu Garda, meaning that his case will not move forward to trial. The Prosecutor had submitted that Abu Garda commanded an attack on the African Union Mission in Sudan (AMIS) at the Haskanita base in Darfur, Sudan in September 2007 which killed twelve AMIS personnel and wounded eight others. Although judges insisted that the case was of sufficient gravity, they established that they lacked evidence that Abu Garda participated in the common plan to attack the base. The prosecution is likely to seek to appeal the decision. At a later stage, the prosecution could again request that the judges confirm the charges against Abu Garda if supported by additional evidence. Pace explained that “the decision showed that the ICC judges abide by the strictest standards of fair trial including high respect for the presumption of innocence and serious examination of the evidence before them”.

It is important to recall that a request for summons to appear or, alternatively, arrest warrants was also made by the ICC prosecutor in November 2008 for two other individuals who allegedly participated in the Haskanita attack. These requests are still being examined by judges.

The investigation into the Darfur situation in Sudan was officially opened by the ICC prosecutor in 2005 after being referred to the Court by the United Nations Security Council. Three public arrest warrants have been issued against Ahmad Harun, Ali Kushayb and Omar al-Bashir. None of the outstanding warrants have been executed as the Sudanese government has openly defied and consistently refused to cooperate with the Court and the international community. Pace has responded, urging “…the Sudanese government, ICC states parties, other governments and international organizations to do their utmost to ensure that these three suspects face justice without delay.”

The day the trial of Thomas Lubanga resumed at the International Criminal Court (ICC) on 7 January 2010 was marked by the testimony of Radhika Coomaraswamy, the UN secretary general’s special representative for children and armed conflict. During her testimony, Coomaraswamy reminded ICC judges that with regard to defining “child soldiers” it is important to not make a distinction between children who participated actively in hostilities and children who played an indirect role. As Coomaraswamy underscored: “Girls play multiple roles in conflict, including combat, portering, scouting but also [there is] sexual slavery and [they are] bush wives….we need to draw attention to the roles girls play and the need to protect them in every context.”

Child soldiering, one of the central elements in the Court’s first-ever trial is a very complex concept that reveals a gap between the practice of child soldering and the rules and regulations of the ICC and international justice norms more broadly.

The concept of “child soldiers” is not new; it dates back more than a century.

According to the principles of the Convention on the Rights of the Child, the definition of “child soldier” -a definition widely recognized by experts in the field-stipulates that “any person under 18 years of age who is part of any kind of regular or irregular armed force or armed group in any capacity, including but not limited to cooks, porters, messengers and anyone accompanying such groups, other than family members. The definition includes girls recruited for sexual purposes and for forced marriage. It does not, therefore, only refer to a child who is carrying or has carried arms.”

In addition, the concept of children associated with armed forces and groups aims to include not only child soldiers but all children directly or indirectly implicated in the activities of armed forces and armed groups. Yet this concept is not a part of the Rome Statute. In fact, although the use of child soldiers is recognized as a war crime under Article 8 of the Rome Statute, its definition does not indicate other categories of child soldiers that do not “actively participate in hostilities.”

It is true that children serve armed forces and armed groups in different ways: as foot soldiers, body guards, informants, witch-healers, cooks and so on. Some are trained to handle more than one task at a time (e.g. combatant and cook) while for a more limited number of children, their role is restricted to one of function (e.g. sexual slave). The recruitment of child soldiers thus takes on many forms, one of which is the sexual exploitation of girls.

This is why, in practice, the distinction between active participation and non-active participation in hostilities is exceptional and very rare. It is hard to find a child in an armed force or armed group that could not become a soldier.

Given the complexity of defining what we mean by “child soldiers,” any discussion ought to take place within the realm of practical not theoretical considerations.

Bukeni T. Waruzi is an expert on child soldiers with WITNESS where he is Program Coordinator for Africa and the Middle East.

Translation is informal and provided by CICC Secretariat.

The International Criminal Court (ICC) is by essence complementary to national criminal jurisdictions of States Parties. It is only seized if the State party is unwilling or unable genuinely to carry out the investigation or the prosecution (Art. 17(1) (a and b) of the Rome Statute).
The Democratic Republic of the Congo falls into the situation described in Article 17(1) (a and b), that of being unable genuinely to carry out investigations or prosecutions against alleged perpetrators of war crimes, crimes against humanity, or genocide. This is why the DRC referred its situation to the ICC Prosecutor after one or more crimes under the jurisdiction of the Court seemed to have been committed and had asked the Prosecutor to investigate this situation to determine whether one or more of the identified persons should be accused of having committed such crimes.
In this case, the ICC only tries military commanders and other superiors (Art. 28 (a and b)). In no way does this mean that those under their effective command and control who took part in the perpetration of war crimes, crimes against humanity and genocide as co-perpetrators or accomplices are thus considered innocent or should not be prosecuted and tried! This is where the responsibility of the State Party to the Rome Statute of the ICC is relevant. Indeed, the State must take every possible step so that the alleged perpetrators of the crimes are genuinely prosecuted while their superiors are tried by the ICC.

To date, the DRC is the country that has most benefitted from the action of the ICC (of all the cases before the ICC, three have been referred by the DRC, including The Prosecutor v. Thomas Lubanga Dyilo, The Prosecutor v. Bosco Ntaganda and The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui). However, the DRC has done little else to demonstrate its firm determination to fight impunity for serious crimes on its territory even though governmental authorities claim the DRC is the only African country to cooperate with the ICC. This is no favor for the Court.
The Congolese army, the national police and every other State-supported institution are full of military officials and civilians suspected of having committed international crimes-crimes committed alongside those being tried by the Court.

The case of Bosco Ntaganda, whom the Congolese government does not want to refer to the ICC in the name of “peace building” (despite an ICC warrant for his arrest) is a sign that casts doubt upon the determination of the DRC to fight against impunity for international crimes. Real and long-lasting peace can only result from justice and it thus has to be implied by a fight against impunity, which means punishing perpetrators of crimes and granting compensations to the victims. Thinking differently amounts to being wrong!

The process of harmonization between national law and the Rome Statute of the ICC confirms the principle of complementarity included in the Rome Statute. The inclusion of crimes under the jurisdiction of the Court in national law is really what makes the ICC a court of last resort while attesting the willingness of the State to genuinely prosecute on its territory the alleged perpetrators of crimes falling within the jurisdiction of the Court. As a reminder, the DRC has still not adopted nor promulgated the implementation bill for the Statute of the ICC which would guarantee that prosecutions are initiated to fight against such crimes at the national level.

The DRC should prosecute criminals under its jurisdiction- and in doing so-participate in the prevention of new crimes. The harmonization between national Congolese law and the Rome Statute of the International Criminal Court is a precondition.

Yet, the DRC will have to go even further in is stated “willingness” to fight against impunity for serious crimes by applying the principle of universal jurisdiction as other States parties, such as Belgium, Germany, Senegal and the United Kingdom already do. This would enable Congolese courts to prosecute the perpetrators of international crimes wherever the crimes was committed in the world.

Prince Albert Kumwanba N’Sapu is a researcher with the Congolese NGO Action Contre l’Impunité pour les Droits Humains (ACIDH/RDC).

Translation from French is informal and provided by CICC secretariat.

After the death of its President, Lansana Conté, in December 2008, Guinea experienced a coup d’état led by Moussa Dadis Camara, head of the Guinean junta. After taking power, Camara promised to refrain from running for office during the transitory period expected to end in January of 2010. In September 2009, however, Dadis Camara announced he would be candidate for the presidential elections.

On 28 September 2009-Independence Day-activists from the Guinean opposition reacted to this announcement by organizing a demonstration in a stadium of Conakry, the Guinean capital city. The demonstration was soon quelled by soldiers who allegedly shot at the crowd. According to Thierno Maadjou Sow, President of the Guinean Organization for Human Rights (OGDH), the military repression resulted in the “deaths of some157 people and left 1,253 wounded” while many women were raped.

The international community widely condemned Dadis Camara’s military junta for the alleged crimes. The Guinean Head of State dismissed allegations by saying Camara did not control the army.

On 14 October 2009, the Prosecutor of the International Criminal Court (ICC) said the situation in Guinea, including the repression of the demonstration of 28 September 2009, was under preliminary examination.

According to Fatou Bensouda, Deputy Prosecutor of the ICC, the Office of the Prosecutor has at its disposal elements indicating that rapes were committed: Women were abused or otherwise brutalized in Conakry’s stadium, apparently by men in uniform who used their arms, Bensouda said.
Aymeric Rogier, investigator at the ICC recalls that at this stage the examination of the situation in Guinea has not yet reached the investigation phase: “We are only in the midst of the preliminary phase, the one during which we gather, evaluate, and analyze pieces of information, especially to determine whether the abuses that were committed can fall within the jurisdiction of the ICC,” he explained.

Guinea is not the only situation to be under preliminary examination by the Office of the Prosecutor (OTP). Apart from the four situations under investigations by the ICC, the OTP is allegedly analyzing information about at least nine situations on four continents.

We all wait to see if the ICC will really try to prosecute the highest leaders of the alleged crimes and whether Guinea will be willing and able to prosecute the alleged perpetrators at the national level. According to the African Encounter for the Defense of Human Rights (RADDHO), an NGO member of the Coalition for the International Criminal Court (CICC), “In the face of the failure of the judicial system”, the ICC would be “the only jurisdiction to have the capacity to investigate and prosecute the perpetrators of the crimes against humanity that were consistently committed in Guinea.” In any case, it is crucial that those responsible be tried - whether before the ICC or not.

Adélaïde Blot is a fourth year student of translation at the ISIT (Institute of Intercultural Management and Communication) in Paris.

Translation from French is informal and provided by CICC secretariat.

The International Criminal Court (ICC) handed down an Appeal Judgment this afternoon that effectively excludes crimes of sexual slavery and inhuman treatment from the on-going trial of rebel leader Thomas Lubanga, from Ituri, Democratic Republic of Congo (DRC).

Thomas Lubanga is on trial in The Hague for recruiting and actively using children under 15 years as soldiers in his rebel group, the UPC, during the conflict in North Eastern DRC in 2002-3. However, it is widespread knowledge that girls were also recruited and used by rebel groups, including the UPC, as soldiers as well as sex slaves or “wives”. “They have the added burden of cooking, cleaning and sex service on top of soldiering,” clarified one witness during the on-going trial.

Girls as young as 11 were kidnapped brought to camps and allocated to commanders who systematically and brutally abused them. “Commanders would get them pregnant, and these girls had to leave the camp and go to the village” explained another witness. Girl victims have testified in closed sessions due to their extreme vulnerability.

Through the ICC’s innovative procedure, which has allowed 97 former child soldiers to be represented in the Court process, victims’ lawyers filed an application trying to have sexual slavery and inhuman treatment recognised as part of the case. This would begin to break the silence about the use of girls by rebel groups and it would also allow girls to benefit from reparation that the ICC and its pioneering Trust Fund for Victims might award if there is a conviction. If this trial is about the active use of children in hostilities, it must recognize the experience of girls. It is a shame the Prosecutor failed to include sexual violence charges from the outset. Nonetheless, there should be a mechanism to modify the scope of the prosecution if facts come to light during the trial, as they have here.

By Mariana Goetz
Program Adviser, REDRESS

On 2 December 2009, the Appeals Chamber of the International Criminal Court (ICC) delivered a summary of the judgment reversing the decision of Pre-Trial Chamber II that had granted the request of Jean-Pierre Bemba Gombo for interim release. It is worth recalling that Pre-Trial Chamber II had asserted that “changed circumstances” had warranted the modification of its previous ruling on detention.

Logic would have it that the conditions of setting any interim release are initially fixed before even ruling on such a possibility. One of these conditions included the will and the availability of a designated state party to receive the accused on its territory. However, the Appeals Chamber underscored the lack of cooperation on behalf of the states in question. With the conditions not met, the interim release could quite simply not be carried out.

News of this reversal spread quickly in Central African Republic and brought relief to scores of victims. As for human rights organizations on the ground, they had voiced their concern over Jean-Pierre Bemba ’s then-impending release. The concern was first and foremost about safety, not only the safety of victims themselves, but for all those assist ing them (legal representatives, intermediarie s, et cetera ).

The recent ICC decision has only reinforced victims ‘ hope to see justice . Victims now await for the opening of the Bemba trial scheduled for April 2010.

Sebastien Mboutou, Lead Central Africa Member of the Central African Coalition for CPI

Translation from the original French is informal and provided by the CICC Secretariat.

On 26 October 2009, the Nigerian Coalition for the ICC issued an open letter to the Nigerian government reacting to the invitation extended to Sudanese President Al Bashir to attend the Peace and Security Council (PSC) meeting of the African Union to be held in Abuja (Nigeria) from 29 October 2009. Below are some excerpts of the open letter.

“… Nigeria is a state party to the Rome Statute of the International Criminal Court (ICC) having signed and ratified the treaty in September 2001. …[T]he United Nations Security Council (UNSC) in resolution 1593 of March 2003 referred the Darfur conflict to the ICC. Nigeria’s membership of this body could be jeopardized and compromised if we do not abide by our commitments to international justice, particularly, in light of the recent election of Nigeria to that body as one of the 10 non-permanent members.

… The NCICC is surprised that Nigeria agreed to host president Al-Bashir as this will be the first time that a state party to the Rome treaty would agree to host an individual wanted for international crimes. South Africa and Uganda are examples of states parties to the Rome Statute that refused to allow the president of Sudan into their countries because of its legal and political implications and we therefore expect Nigeria to do same and not allow Al-Bashir to come to Nigeria.

… However, we believe that the Darfur issue calls for urgent and concerted action by the Nigeria government to ensure that we do not provide a safe haven for somebody wanted for crimes against citizens of our continent.

We therefore call on the Nigerian government to rescind the decision to invite Al-Bashir to Nigeria as this invitation is not in our best interest and negates our commitment to international justice and the promotion of rule of rule and the rights of the citizenry in the continent. Nigeria has the obligation to arrest him and hand him over to the International Criminal Court for prosecution in accordance with article 86 of the Rome Statute which encourages states parties the treaty to cooperate fully with the ICC in its investigation and prosecution of crimes within the jurisdiction of the Court.”

On 14 August 2009, Single Judge Ekaterina Trendafilova of the Pre-Trial Chamber of the International Criminal Court (ICC) decided that Jean-Pierre Bemba - who is charged with crimes against humanity and war crimes in Central African Republic - is to be released subject to conditions pending his trial which is expected to start in 2010. The decision has been appealed by the Office of the Prosecutor. However, if his release is affirmed by the Appeals Chamber, it is uncertain whether the ICC will be able to implement the decision promptly as the six states parties to the Rome Statute of the International Criminal Court (Rome Statute) that have been requested to accept him on their territories while he is released - Belgium, France, Germany, Italy, Portugal and South Africa - have all voiced “objections and concerns.”

The interim release of accused persons pending trial is fully consistent with the fair trial guarantees contained in the Rome Statute and international human rights law, in particular the right to the presumption of innocence. It is vital that, after applying the criteria set out in the Rome Statute and the Rules of Procedure and Evidence, the ICC can release suspects before and during trials to ensure that the institution meets the highest standards of fairness.

If the Pre-Trial Chamber’s decision to release Jean-Pierre Bemba conditionally is affirmed, then he should be released without delay to a state party that will cooperate fully with the ICC in supervising his release and ensuring that the conditions of release are respected. The apparent reluctance of the six requested states parties to cooperate with the ICC is, therefore, of serious concern.<

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To observers of the ICC, situations where states parties fail to cooperate with the ICC have been inevitable for some time. The fact that less than 40 of the 110 states parties to the Rome Statute have enacted national legislation providing for cooperation with the ICC demonstrates how unprepared many states parties are to fulfil their cooperation obligations. Moreover, many of those laws that have been enacted include flaws that could prevent cooperation in some circumstances. States parties have also failed to enter into important agreements to assist the ICC in relocating victims and witnesses at immediate risk and to enforce sentences of convicted persons in their national prison facilities. Reference must also be made to the declaration issued by the African Union in June not to cooperate with the arrest and surrender of President Omar al-Bashir, which Amnesty International called “an insult to victims of human rights violations in Darfur.” The Assembly of States Parties, which is the main oversight body of the ICC, has fallen well short of ensuring that states parties are ready and willing to cooperate with all requests of the ICC. Despite adopting a very detailed report in 2007, setting out 66 recommendations for states parties on cooperating with the ICC, inadequate measures have been taken by the Assembly to ensure that the recommendations are implemented. For example, calls by non-governmental organizations for the Assembly to, at a minimum, establish a Working Group on Cooperation to meet during its sessions have so far not been implemented. Unsurprisingly, Judge Trendafilova appears to have taken a strict line on state cooperation with Jean-Pierre Bemba’s interim release. In the decision, the Judge affirms that states parties have an obligation under Article 86 of the Rome Statute to cooperate with provisional release of suspects. Furthermore, she has invited each of the six states parties to present their further observations and views in public sessions before the Pre-Trial Chamber. At the moment, it does not appear as though the Judge is requesting other states parties to volunteer to accept Jean-Pierre Bemba. The obligation to cooperate under Article 86 means that it is the ICC that will make the final decision on which state Jean-Pierre Bemba will have the responsibility to supervise his release, which gives judges the option to order that he be released to a country even though the government indicates it is unwilling to accept him. If that state then refuses to cooperate, the ICC can make a finding of failure to comply under Article 87(7) of the Rome Statute and refer the issue to the Assembly of States Parties. Of course, it is hoped that this issue can be resolved within the judicial forum of the Court avoiding the need to go as far as seeking a political solution through the Assembly and that each of the six requested states and other states parties will work with the ICC to ensure that, in the event that Jean-Pierre Bemba’s release is affirmed by the Appeals Chamber, they can cooperate fully with the ICC. However, if there are significant delays in implementing the decision, then a temporary solution will need to be found to conditionally release Jean-Pierre Bemba so that his right to a fair trial is not violated by his prolonged pre-trial detention. In such circumstances, The Netherlands as the host state of the ICC is uniquely placed to cooperate with his release in The Netherlands until he can be transferred to another state party. However, such a solution would clearly be undesirable given that the Host State should not have to take the brunt of the failures of other states parties to cooperate. In an ideal world, states parties would be queuing up to assist the Court with the often complex functional issues that it will inevitably face and seek cooperation to address. Indeed, the success or failure of the Court rests on the level of cooperation it is able to secure from States Parties. The reality is that seven years into the work of the ICC, there are clearly gaps in the legislative framework but also in the willingness of states parties to cooperate with the ICC so that it can operate effectively. State parties must fulfil their commitments to cooperate. The Assembly needs to wake up to this potential cooperation crisis and take action. Jonathan O’Donohue is a Legal Adviser on International Justice for Amnesty International. Translation from the original English is informal and provided by CICC Secretariat.

On 22 July 2009, Trial Chamber II defined the modalities of the common legal representation of victims in the Katanga/Ngudjolo case. The Chamber has divided victims into two groups: the first group includes all victims except for child soldiers, and the second group includes the latter. Judges have decided that the victims will be represented by one common legal representative (who will choose an assistant) except for the child soldiers who will appoint a separate counsel.

In addition, Judges have explained that if any disagreements should arise between victims during the proceedings, the counsel would have to represent the divergent positions in an equitable fashion, but in the case where a conflict of interest develops, the Chamber shall take appropriate measures. Specifically, the Chamber could appoint the Office of Public Counsel for Victims (OPCV) to represent one of the conflicting groups of victims. Finally, the Registrar has received the order to propose a structure of assistance, in coordination with the common legal representation, so that he can effectively accomplish his duties.

This type of common legal representation is different from the one set out in the Thomas Lubanga case. The facts and the situations of the victims in both cases are different; it is thus understandable that the Judges have not reproduced the same legal representation system as in the Lubanga case. However the system adopted by the Judges is very restrictive and practical problems could arise during its implementation. One can only hope that certain aspects of the chosen solution - which is adapted to the specific characteristics of this case and could generate certain concerns - will not be interpreted as being a general precedent.

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Uncertainty as to the justification of the order and victims’ freedom of choice The Judges have justified their approach for reasons of procedural efficiency, arguing that victims’ participation should not harm the rights of the accused. However, can these demands justify such a restrictive common legal representation system? The Chamber has not made any reference to financial constraints related to legal aid, and it is true that such a basis is not clearly established in Regulation 90(2). In any case, victims are free to exercise their right to freely choose their legal representatives (Regulation 90(1)) when they are not financed by the Court’s legal aid system. OPCV’s potential role Questions also arise as to the possibility of the Judges to appoint the OPCV to represent victims in the case of a conflict of interest between the different victims represented by single counsel. At the heart of current debates, one principal concern relates to the possibility of a conflict of interest which could appear between the OPCV’s role in being a legal representative of victims and its principal mandate of assistance and support to legal representatives. In the present case, the OPCV could have difficulties in assisting the common legal representative because the latter would represent a group that would have a conflict of interest with the group represented by the Office. Practical difficulties Finally, practical difficulties can occur in the implementation of this order. Concerning victims’ files, different legal representatives are working on them until a common legal representative is appointed and files are transferred to the latter. From a practical perspective, it will be a long and difficult process for the single counsel and his assistant to have a good understanding of the files, adding to this the fact that the case is in reality a joining of two cases and that hundreds of victims will participate. Furthermore, the possibility that the counsel may have to represent divergent instructions of victims will pose additional constraints. In conclusion, one can only hope that the Court will envisage the structure of assistance to be created for the common legal representative in a flexible fashion and that this structure will include a sufficient number of lawyers to be able to provide effective support to the common legal representative and his assistant. Géraldine de Vries, Programme Associate, International Justice and Human Rights, Avocats Sans Frontières (Lawyers Without Borders)