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As a tribute to International Justice Day, IJCentral and the ICC Office of the Prosecutor launched our newest endeavor “Ask the Prosecutor”.  We asked you what you wanted to know about the International Criminal Court. Luis Moreno Ocampo, the prosecutor for the ICC, is steadily answering your questions here:

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We are continuing to take questions as we develop this initiative and will get them answered as soon as possible.

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International Criminal Court (ICC) prosecutor Luis Moreno-Ocampo claims in an appeal that the order by trial judges for a stay of proceedings in the Thomas Lubanga war crimes trial was erroneous and excessive.

While disputing the grounds on which judges based their decision, the prosecutor also contends in a July 30, 2010 filing that the trial judges should have considered sanctioning prosecutors rather than ordering a stay of proceedings.

On July 8, 2010, trial judges ordered the stay of proceedings due to abuse of court process which they said resulted from failure by prosecutors to disclose the identity of a person who helped them to assemble their witnesses. The judges said that failure to disclose the identity of this individual, who is referred to in court as ‘intermediary 143’, rendered it impossible to ensure a fair trial for Mr. Lubanga.

Subsequently, the trial judges on July 14, 2010 ordered Mr. Lubanga’s release, stating that he could not be held in preventative custody based on speculation that proceedings might resume at some stage in the future. Appeals judges have since ruled that Mr. Lubanga should remain in ICC detention until the prosecution’s appeal has been decided. Prosecutors are appealing both the stay of proceedings and the release order.

Describing the stay of proceedings as having been “excessive and disproportionate”, Mr. Moreno-Ocampo argues that “the chamber further erred in failing to grant a proportionate remedy in the face of what it characterized as the prosecution’s errors of approach and attitude”.

He stated: “The chamber had at its disposal a range of alternative remedies that would not affect in such a drastic and final way the continuation of trial proceedings, a measure that impacts on the rights not only of the prosecution but also of victims and of the communities where the crimes occurred.”

Mr. Lubanga is on trial over the recruitment, conscription, and use of child soldiers in inter-ethnic fighting during 2002 and 2003. According to ICC prosecutors, the crimes were committed in Ituri province in the Democratic Republic of Congo (DRC) while Mr. Lubanga allegedly headed the Union of Congolese Patriots rebel group.

Mr. Moreno-Ocampo argues that article 71 of the statute that established the ICC stipulates the consequences of non-compliance with a court order as ‘sanction for misconduct’. He notes that while trial judges indeed issued a formal warning to the Prosecutor and the Deputy Prosecutor in line with this provision, they went ahead and also ordered a stay of proceedings.

In the 39-page filing, which lays out the prosecution’s appeal arguments, Mr. Moreno-Ocampo suggests that trial judges could have suspended the trial for one or two weeks to allow for protective measures to be instituted for ‘intermediary 143’ before his identity was disclosed.

In failing to obey the order by judges, prosecution staff claimed that revealing the intermediary’s identity before protective measures were put in place for him would have put his life at risk. The intermediary is based in the DRC.

“The prosecution will seek to show that it did not receive a reasonable opportunity to present its views before variation of intermediary 143’s protective measures was adopted and that its insistence to present its views afterwards was wrongly considered to be defiance of the court’s authority,” the filing reads.

Mr. Moreno-Ocampo also points out that trial judges did not seriously test the availability or effectiveness of measures which could have enabled the trial to continue even as arrangements were being made for disclosure of the intermediary’s identity. “For example, the chamber failed to fully explore its initial proposal of proceeding with the defense cross-examination and deferring to a later stage those questions that required the defense’s knowledge of intermediary 143’s identity,” he argues.

Mr. Lubanga’s defense is yet to file its response to the prosecutor’s document spelling out its arguments for appeal. Although judges are on judicial recess, over the last two weeks they have issued a number of rulings, signaling that the appeal might be disposed of in a short period of time.

Mr. Lubanga has been in detention at the ICC since March 2006. His trial started on January 26, 2009, while the defense case opened on January 27, 2010.

Last Friday, the prosecution asked judges to let the case be heard in court. While noting that the appeals chamber had never entertained in-court argument in an interlocutory appeal, the prosecution argued that given the importance of the case and the complexity of the issues, oral argument would be appropriate in the current appeal. Judges are yet to make a ruling on this request.

The judges hearing the appeal are Judge Sang-Hyun Song, Presiding, Erkki Kourula, Anita Usacka, Daniel David Ntanda Nsereko, and Sanji Mmasenono Monageng.

source: The Lubanga Trail

As a tribute to International Justice Day, IJCentral and the ICC Office of the Prosecutor launched

Paris, Nairobi, Khartoum, Kampala, 30 July 2010 – The International Federation for Human Rights (FIDH) together with its Sudanese member organizations, the African Center for Justice and Peace Studies (ACJPS) and the Sudan Human Rights Monitor (SUHRIM), deeply regret the refusal of the African Union (AU) to cooperate with the International Criminal Court (ICC), as expressed at the 15th Summit of Heads of State and Government held in Kampala, Uganda, from 15 to 27 July 2010.

The AU reiterated its call for the prosecution of Sudanese President Omar El Bashir to be deferred, as well as for Article 16 of the Rome Statute to be amended in order to enable other UN bodies to request the suspension of the ICC prosecutions in case of inaction by the Security Council. The AU also refuses the establishment of an ICC liaison office at the AU and threatens to sanction African States Parties to the Rome Statute should they depart from AU’s decisions.

Our organizations recall that, according to the objectives of the AU as defined in its Constitutive Act, Member States must promote and protect human rights according to the African Charter on Human and Peoples’ Rights.

Our organizations stress that the ICC action on Darfur is the result of a referral to the Court by the UN Security Council on the basis of Chapter VII of the UN Charter, which is therefore binding on Sudan and other countries of the AU.

Our organizations also recall that the Security Council’s decision to refer the situation in Darfur to the ICC was based on the utter lack of justice in Sudan despite the commission of the most serious crimes during the conflict that still pits government troops against rebel groups.

For the record, since 2003, this conflict has killed over 300,000 people and forced more than 2 million civilians to flee or to move. Nevertheless, no serious act of justice has been udertaken in Sudan, as confirmed in the 2004 report of the International Commission of Inquiry on Darfur, mandated by the United Nations, and the 2009 Report of the High Level Panel appointed by the African Union. In accordance with its Statute and under the principle of complementarity, the ICC would not have interfered should there have been an effective and fair justice process in Sudan.

The AU’s position is based in particular on the claim that justice is in conflict with peace in Darfur. But this statement can be reversed, as explains Osman Hummaida, President of ACJPS: “it is because there is no justice process that no peace has been possible in Sudan. And it is certainly the action of international justice on this country which has led the key players to resume negotiations in order to find a settlement to the conflict”.

The second argument put forward against the action of the ICC is the fact that it intervenes only in Africa even though other serious crimes are committed elsewhere, including by representatives of Western countries. Although this is true, is it acceptable to use the ICC’s lack of universal jurisdiction as a pretext to trample on the memory of the 300,000 victims in Darfur and other African victims in Uganda, the Democratic Republic of Congo, Central African Republic or Kenya who demand the intervention of international justice to fight impunity?

Our organizations would have expected a more coherent and positive attitude from the AU. “It should rather call for the universality of the ICC by asking all the States to submit to its jurisdiction and adopt domestic laws to prosecute perpetrators of serious crimes, thus avoiding international intervention.
The AU should also accept dialogue with the ICC by authorizing the establishment of a liaison office at the AU ; it would then set an example on a continent that refuses impunity like 30 of its Member States did when they ratified the Rome Statute,” said Sidiki Kaba, FIDH Honorary President .

Press Contacts : Karine Appy/Fabien Maitre + 33 1 43 55 14 12 / + 33 1 43 55 90 19

source:  International Federation for Human Rights

The African Union president has criticised International Criminal Court (ICC) indictments against Omar al-Bashir, Sudan’s president, saying they were “undermining African solidarity and African peace and security”.

Bingu wa Mutharika, who is also the Malawian president, urged African leaders at the opening session of a summit in the Ugandan capital, Kampala, to look for ways of resolving the conflict in Sudan without the need to arrest Bashir.

“To subject a sovereign head of state to a warrant of arrest is undermining African solidarity and African peace and security that we fought for for so many years,” he said.

Earlier this month, the ICC added a genocide charge to Bashir’s indictment, which already included charges of war crimes and crimes against humanity in Sudan’s western Darfur region.

He is accused of orchestrating murders, rapes, and torture during the conflict between between rebels groups and government forces backed by local militias.

“There is a general concern in Africa that the issuance of a warrant of arrest for… al-Bashir, a duly elected president, is a violation of the principles of sovereignty guaranteed under the United Nations and under the African Union charter,” Mutharika said.

“Maybe there are other ways of addressing this problem. Let us together explore this possibility.”

Warrants dispute

Delegates from 53 countries across Africa are meeting in the Ugandan capital for an African Union (AU) summit expected to focus on security in Somalia, but Bashir himself is not expected to be among them.

An initial draft of a resolution to be passed at the African Union (AU) meeting in Ugandan capital Kampala, seen by the Reuters news agency on Saturday, contained two contentious clauses about the arrest warrants.

But both paragraphs were removed after arguments that went on until the early hours of Sunday, AU and Western diplomats said.

The first clause advised African countries not to arrest Bashir if he visited their nations, even if they were signatories to the Rome Statute which established the ICC and obliges them to carry out its arrest warrants.

“[The AU] reiterates its decision that AU member states shall not co-operate with the ICC in the arrest and surrender of President Bashir,” the paragraph said.

Thirty African nations are members of the ICC.

The second deleted clause attacked Luis Moreno-Ocampo, the ICC prosectuor leading thecase against Bashir.

Jean Ping, the AU Commission chairman, has said the decision to prosecute Bashir has undermined peace efforts in Sudan.

Somalia security

The summit is taking place two weeks after Somalia’s al-Shabab fighters bombed Kampala in an attempt to force Uganda to withdraw its troops from their country and opened on Sunday with a solemn two-minute silence for the victims of the attack.

African leaders have condemned al-Shabab and pledged to beef up an African force fighting the group.

Ping called the al-Shabab attacks, which left at least 76 people dead, “despicable” and said the continental body was ready to step up its response.

“The commission is already planning the next phases in the deployment of Amisom in terms of the enlarged mandate, increased troop strength and appropriate equipment,” he said.

Al Jazeera’s Andrew Simmons, reporting from Kampala, said that a more aggressive approach towards al-Shabab was likely to be adopted at the summit.

“There is definitely going to be an offensive message from this summit, definitely an increase in troops and possibly a change in mandate,” he said.

“The question is whether this is going to bring Somalia back to some sort of peace after two decades of mayhem.”

Guinea and Djibouti announced a plan on Friday to send troopsto bolster the AU peacekeeping force charged with protecting the transitional government in Somalia.

Yoweri Museveni, the Ugandan president, urged African leaders to defeat “the terrorists” and “sweep them out of Africa” during his address.

Mutharika joined him in condemning the perpetrators of the Kampala blasts “in the strongest terms”.

“The African Union stands with you, my brother President [Museveni] and with the people of Uganda,” Mutharika said.

Al-Shabab said that the attacks were in response to the deaths of Somali civilians at the hands of AU peacekeepers.

The group, which the US says is allied to al-Qaeda, has warned of further violence in Uganda and Burundi unless they pull their troops out of Somalia.

source: Al Jazeera and agencies

The first man to be tried by the international criminal court (ICC) has been handed a “get out of jail free” card again. Following repeated clashes with prosecutors over security measures for an anonymous source, judges halted the trial and decided to release Thomas Lubanga Dyilo, a Congolese politician charged with recruiting child soldiers.

Both ICC prosecutors and victims of the brutal conflict in the Democratic Republic of Congo hope this is simply another legal glitch which will soon be fixed. But judges have warned that it may signal an abrupt end to the ICC’s first trial—not something most international justice advocates would have hoped for this beleaguered and controversial institution.

Indeed, the potential collapse of the case will no doubt be viewed as deeply disappointing by many Congolese victims who have waited years to see individuals held accountable for their alleged role in brutal crimes unleashed in eastern DRC. The order that Lubanga be set free with no strings attached may also terrify some in the DRC’s remote Ituri region, as Lubanga’s supporters celebrate (Lubanga has denied all charges against him). The Congolese government, the ICC, and others in a position to help must be on red alert to make sure people on the ground stay safe if there is any trouble.

But the trial chamber’s decision does send a deeply important message about the ICC: this is no kangaroo court. If the process is not fundamentally fair, then the accused must be released.

Sceptics have portrayed the ICC as a tool used by politicians in power to eliminate rival leaders and have noted that any ICC prosecutor could be riskily unpredictable if not kept in check.

Instead, this episode demonstrates that the ICC is serious about its mission to provide a fair hearing to those who come before it. It is genuinely struggling as an institution to find the right balance of responsibilities between the judges and prosecutors while also taking on board concerns about the safety of victims, witnesses, and others who could be harmed on account of the court’s work.

The ICC has previously sent a strong message about the importance of fair trials, deciding in 2008 to release Lubanga before his trial had even begun. In 2008, prosecutors refused to share information obtained under confidentiality agreements with the United Nations and other organisations, which could have bolstered the case for Lubanga’s innocence. According to the judges, this denied Lubanga’s right to a fair trial and so he should be set free. Prosecutors appealed, the dispute was resolved and the trial finally started in January 2009.

This time around, the judges decided to release Lubanga, citing the prosecutors‚ repeated refusal to comply with an order to tell Lubanga and his defence team the identity of a person who had helped prosecutors find potential witnesses. In response, the prosecutors cited dual obligations: one to comply with the decision of the judges, and a separate responsibility to protect individuals who may be harmed on account of the prosecutors’ work. Though the judges were told by protection specialists at the court that the person would be at no greater risk by their disclosure order, prosecutors disagreed—a move which drove the judges to issue a warning for misconduct to the chief prosecutor and his deputy.

“No criminal court can operate on the basis that whenever it makes an order in a particular area, it is for the prosecutor to elect whether or not to implement it, depending on his interpretation of his obligations,” the judges stated last week, calling the prosecutor’s actions “a profound, unacceptable, and unjustified intrusion into the role of the judiciary.” To make sure Lubanga gets a fair trial, the court said “it is necessary that its orders, decisions, and rulings are respected.”

The judges then said that continuing to hold Lubanga would be “unfair,” given the “wholesale uncertainty” of whether the trial would restart, along with the length of jail time (five years) Lubanga has already served. Prosecutors have appealed, arguing that Lubanga may flee if set free. Prosecutors also said they did not disrespect the Trial Chamber’s orders, but instead the clash amounted to a different perception of judicial and prosecutorial roles under the court’s guiding documents, and now want the roles clarified by the appeals chamber. Lubanga will be kept in jail until the appeals chamber decides whether the case can go forward.

But whatever the outcome of the appeal, the ICC has demonstrated that the court is serious. Both the prosecutors and judges have shown that at least in this instance they care deeply about security of the people who may be put at risk on account of their work, with an outcome highlighting that the judges are the ultimate decision-makers and will not brook disobedience by parties. Meanwhile, for the judges‚ determination to ensure fair trials means that anyone indicted should not be afraid of coming before the court to put forward their case.

Slowly, painfully, and with disappointments along the way, the ICC is showing that even if we are disenchanted with the outcomes it is a place which operates exactly as a court should: according to the law, and with checks and balances in place to keep the trials fair.

Tracey Gurd is legal officer for the International Justice Program of the Open Society Justice Initiative.

source: The Guardian

Sudanese President Omar al-Bashir, who is wanted by the International Criminal Court on a war-crimes warrant, won’t attend an African Union (AU) summit due to get under way in Uganda on Sunday, said a senior Ugandan official on Saturday.

Congolese President Joseph Kabila has also cancelled “at the last minute,” while Egyptian President Hosni Mubarak is not due to attend, Deputy Foreign Affairs Minister Henry Okello Oryem told reporters.

Heads of State and government from 43 of the AU’s 53 member-states have confirmed that they will attend the summit in the Ugandan capital Kampala, where the problems facing the African continent have already been discussed for several days at ministerial level.

Sudanese officials and Mr. Al-Bashir’s lawyers have been lobbying the AU delegates to isolate the international court and support Sudan, which is preparing to file a case challenging the arrest warrants.

One of Mr. Bashir’s London-based attorneys Rodney Dixon told reporters that the case will explore if a country that hasn’t recognised the international court can be brought before it and if a warrant can be issued for a sitting President.

Mr. Bashir had been invited to the summit despite two warrants that have been issued by the international court in The Hague, charging him with instigating war crimes and genocide in the Sudanese province of Darfur.

He was not, however, expected to attend the summit, as Kampala had previously threatened to arrest him if he participated in the first review conference of the Rome Statute — the treaty that created the international court — that was held in Uganda last month. The three-day summit’s theme is maternal, infant and child health and development in Africa.

source: The Hindu

Thomas Lubanga, a former Congolese rebel leader, will remain in jail in The Hague after the appeals panel of the International Criminal Court (ICC) said it feared he might not reappear if another trial is ordered.

Judges at the ICC ordered Lubanga’s trial halted on July 8, saying that Luis Moreno-Ocampo, the court’s chief prosecutor, had not complied with an order to turn over certain information to his defence.

The court later ordered his release on the grounds he could not be held in custody if it were unclear when or if his trial would ever resume. The prosecutors had appealled against that decision.

“Today, the appeals chamber of the ICC granted the suspensive effect to the prosecution’s appeal” against a July 15 decision to free Lubanga following the suspension of his trial, the court said in a statement on Friday.

“Therefore the accused will remain under custody of the ICC pending the final decision on the appeal.”

Lubanga is accused of enlisting and conscripting children aged under 15 for his Union of Congolese Patroits, to kill members of a rival tribe in the 1998-2003 war in the Democratic Republic of Congo.

He has pleaded not guilty and described himself as a politician, not a warlord.

Lubanga had insisted he could not flee if released as he has no travel documents and pledged to remain “at the disposal of the court” throughout the appeal.

Lubanga’s trial, the ICC’s first, was initially to have started in June 2008 but was stalled until the following year when the court ruled that prosecutors had wrongly withheld evidence potentially favourable to his defence.

source: AlJazeera.net

1.  Who is Thomas Lubanga? What crimes is he charged with?

Thomas Lubanga is the first person to be tried by the International Criminal Court (ICC). He was the president of the Union of Congolese Patriots (UPC), a militia group purporting to further the interests of the Hema ethnic group in the Ituri region of northeastern Democratic Republic of Congo (DRC). The UPC has been implicated in many serious human rights abuses including ethnic massacres, torture and rape. Lubanga is being prosecuted for the war crimes of enlisting and conscripting children under the age of 15 years as soldiers and using them to actively participate in hostilities in 2002-2003. The trial began before Trial Chamber I of the ICC in January 2009.

2.  Why have the judges ordered Lubanga’s release?

On July 15, 2010, Trial Chamber 1 heard submissions as to whether or not to keep Lubanga in detention after it had decided to stay the proceedings against him (see below question 3). Lubanga has been in preventive detention for four years. At the end of the hearing, Trial Chamber I ordered that Lubanga be released. However, this decision is not going to be executed immediately. Indeed, the prosecutor has five days to ask the Appeals Chamber to suspend the decision to release Lubanga while it is considering the appeal in relation to the stay of proceedings.

The same issue also arose in 2008, when the chamber stayed the proceedings due to the prosecution’s failure to disclose exculpatory evidence (see below question 10). Although the trial chamber had initially ordered that Lubanga be released, the Appeals Chamber had then reversed this decision, indicating that a stay of proceedings subjected to conditions did not necessarily warrant the release of the accused and that other relevant factors, such as the risk that he flee or threaten witnesses should also be taken into consideration.

Thus, a stay of proceedings does not automatically mean that the accused will be released.

3.    Why is the Lubanga trial stayed?

On July 8, 2010, the three judges of Trial Chamber I unanimously decided to “stay” the proceedings against Lubanga - meaning that in all respects, the trial has been halted - due to the failure of the prosecutor to comply with the chamber’s order that he reveal the identity of one of his intermediaries to Lubanga and his defense team. In this context, intermediaries are persons who provide assistance to the Office of the Prosecutor with discrete aspects of its investigations, including by identifying leads or witnesses. The judges found that without at least a limited disclosure to the Lubanga defense team of the intermediary’s identity and in light of the prosecution’s failure to comply with its orders, a fair trial is not possible under the current circumstances. The Office of the Prosecutor has appealed the decision to stay the proceedings.

4.  What led to the decision to stay the trial?

The current focus of Lubanga’s defense is to discredit prosecution witnesses who claim to have been child soldiers in the UPC. Since the opening of the defense case on January 27, 2010, some of the defense witnesses have testified that they had been paid or coached by intermediaries of the Office of the Prosecutor to lie. Three intermediaries in particular, known by the pseudonyms “321,” “316,” and “143,” were repeatedly cited as having engaged in such practices.

In order to enable Lubanga’s team to fully investigate these allegations, the judges ordered the prosecution, on May 12, 2010, to reveal the identities of the three intermediaries to the defense, once protection measures would be in place for each of them. In addition, the judges requested that the Office of the Prosecutor present some of its staff and intermediaries “321” and “316” to be questioned in court about their working methods on the ground. They found that the allegations against intermediary 143 did not merit calling him to testify in court but that his identity should nonetheless be revealed to Lubanga and his defense team.

On July 6, after a lengthy delay in implementing the protective measures for intermediary 143, and emerging information that he had changed his mind about what these should be, and despite the lack of such measures being in place for him, the judges ordered that his identity be disclosed in a limited manner. The prosecution was ordered to disclose the intermediary’s name, but only to Lubanga, the defense team in The Hague, and an individual working on behalf of the defense in the DRC (known as a “resource person”). Disclosure was moreover ordered for the sole purpose of questioning another intermediary who is currently testifying. The judges determined that it was essential that the defense know the identity of intermediary 143 in order to be able to fully cross-examine the other intermediary, because they had had contact with each other.

At the end of the hearing on July 6, the prosecution indicated that it intended to appeal this decision and needed the five day delay provided in the ICC rules to do so. The chamber suspended its order overnight and said it would reconvene the next morning to reevaluate the issues.

On July 7, unpersuaded by the prosecution’s arguments, the trial chamber once more ordered that the identity of intermediary 143 be immediately disclosed, notwithstanding the prosecution’s stated intention to appeal.  That day, prosecutors failed to execute the trial chamber’s repeated orders to disclose the identity of intermediary 143. To explain this attitude, the prosecution said that intermediary 143’s life may be at risk if his identity were revealed without protective measures in place.

5.  What is the basis of the judges’ decision that Lubanga cannot have a fair trial in these circumstances?

On July 7, 2010, in response to the court’s third order to disclose the identitity of the intermediary to the defense, the prosecution filed an urgent motion for the judges to either extend the time limit for disclosure of his identity or, alternatively, to stay the proceedings while consultations with the court’s witness protection experts (the Victims and Witnesses Unit) were ongoing about the security situation of the intermediary.

On July 8, the judges unanimously decided to stay the proceedings, but not for the reason put forward by the prosecution.

The judges found that the failure of the prosecution to reveal the identity of intermediary 143 prevented the defense team from effectively cross-examining the other intermediary who was currently testifying before the court.

Additionally, the judges found that the repeated refusal of the Office of the Prosecutor to implement the chamber’s orders of July 7 constituted “an abuse of the process of the Court” and created a situation in which the “fair trial of the accused [was] no longer possible, and justice [could not] be done, not least because the judges will have lost control of a significant aspect of the trial proceedings as provided under the Rome Statute framework.”

6.  Are the judges being insensitive to security risks faced by intermediaries?

The July 8 decision staying proceedings reveals a disagreement between the judges and the prosecution about the security situation of intermediary 143 and about the possible consequences of limited disclosure of his identity.

The prosecution claimed that it cannot implement the judges’ order to disclose the identity of intermediary 143 because doing so puts the intermediary at risk of being killed. The prosecution stressed that “it has an independent statutory obligation to protect persons at risk on account of the Prosecution’s actions. It should not comply, or be asked to comply, with an order that may require it to violate its separate statutory obligation by subjecting the person to foreseeable risk.”

In accordance with their responsibilities under the Rome Statute, ICC judges have routinely made decisions relating to the protection and security of witnesses, sources and intermediaries. In this instance, the judges have stressed that they are “alive to the potential risks to the intermediaries employed by the prosecution once their identities are revealed to the accused.”  The trial chamber decision of May 12, 2010 provided that the identity of the three concerned intermediaries would be revealed to the defense only once protective measures had been put in place for each of them. Protection measures were implemented for the two other intermediaries. Intermediary 143 initially agreed to the protective scheme proposed by the Victims and Witnesses Unit. But he changed his mind at the last minute, on July 6, 2010, just as the scheme was about to be implemented, and asked for additional guarantees.

The judges consulted again with the court’s protection experts who informed them that, in their view, disclosure of intermediary 143’s identity under the strict conditions the chamber had set would not endanger him. The judges then decided that Lubanga’s right to a fair and expeditious trial compelled immediate disclosure even in the absence of protective measures. The prosecution disagreed with this assessment.

Difficult decisions and careful balancing of various interests are at play in this series of decisions.

7.  What is the security situation in Bunia? Have there been threats to witnesses and intermediaries?

Human Rights Watch has no information about the identity of intermediary 143 or his personal security situation. Human Rights Watch has, however, documented some security threats in the Ituri district connected to the Lubanga trial, including threats that allegedly came from members of Lubanga’s armed group. A number of Lubanga’s supporters remain influential. Several human rights activists and journalists linked to the work of the ICC have reported death threats, intimidation and other forms of harassment. Some were compelled to leave Bunia and believe it is not yet safe for them to return. The court itself has recognized that those who have helped the ICC have done so in the face of substantial safety risks. To date, most witnesses in the Lubanga trial have benefited from some forms of protection measures. The appointment of Dieudonné Mbuna, a well known UPC leader, as resource person in the DRC for Lubanga’s defense team has raised concerns. This may be one reason the prosecution is particularly cautious in this situation. However the judges have found that concerns expressed in court about Mbuna have not been substantiated thus far. 

8.  Do prosecutors regularly use intermediaries for investigations?

Intermediaries are individuals or organizations that facilitate victims and witnesses’ cooperation with the ICC. Various organs and units of the court rely on intermediaries to assist in performing their tasks. The Office of the Prosecutor uses intermediaries to facilitate contacts between investigators and possible witnesses and to provide background information, among other things. The office has emphasized that intermediaries do not conduct investigations. In light of the difficult security situation in Ituri at the time investigations were conducted, intermediaries enabled ICC investigators to contact potential witnesses in a more discreet and secure manner.

Intermediaries perform essential tasks that contribute to enabling the court to successfully discharge its mandate. The ICC has been working for years to standardize its policy on intermediaries between the Office of the Prosecutor and the Registry and its various units. Current developments underscore the importance and urgency of that task. While different policies may be appropriate for different kinds of intermediaries, intermediaries like those at the center of the current developments in the Lubanga trial should be carefully selected, well trained - including with regard to ethical aspects of their tasks- and financially compensated for their work, as appropriate. They should also benefit from some measure of protection when their lives are put in danger directly because of work performed at the request of the ICC. The current impasse in the trial shows that, while intermediaries may be indispensable in the course of investigations, their use comes with challenges. An evaluation of current practices and policies in this regard is important, with a view to determining carefully under what circumstances and within what limits intermediaries should be used.

9.  What about the prosecution’s refusal to execute the judges’ orders?

Implementation of court orders by the various parties is of course an essential aspect of efficient and fair judicial proceedings.

In this case, as discussed above, the prosecution justified its unwillingness to comply with the judicial orders on its assessment that the life of intermediary 143 would be at risk if it did so. The prosecution argued that its interpretation of the Rome Statute is that, while it has an obligation to comply with the judges’ orders, it also has a separate, autonomous obligation under the Rome Statute to ensure the protection of persons put at risk on account of the prosecution’s actions.

For its part, the chamber, in its decision staying the proceedings, expressed profound concern at the prosecution’s position that it does not consider itself under a strict obligation to execute the judges’ decision when they relate to protection issues. The judges said that, under the Rome Statute, it is the judges who have the ultimate responsibility to deal with protection issues during trial. The judges added in their decision that “no criminal court can operate on the basis that whenever it makes an order in a particular area, it is for the Prosecutor to elect whether or not to implement it, depending on his interpretation of his obligations.”

10. Haven’t proceedings against Lubanga been stayed before?

Yes.  Proceedings against Lubgana have already been stayed once before.

On June 13, 2008, the judges of Trial Chamber I decided unanimously to stay the proceedings against Lubanga because the prosecution had been unable to disclose over 200 “exculpatory” documents to the defense. The judges found that “the right to a fair trial includes an entitlement to disclosure of exculpatory material” and that the trial could not start on a fair basis if it was not disclosed. On November 18, 2008, however, the trial chamber decided to lift the stay and resume the proceedings against Lubanga because it was satisfied that the problem had been successfully addressed by the Office of the Prosecutor.

11. What happens next? Is the Lubanga trial over?

The prosecutor has appealed the decision to stay the proceedings, on July 15, 2010.

In addition, in light of the Appeals Chamber’s decision on the previous stay, it may be possible for the trial chamber itself to lift the stay, if the obstacles that led to its imposition can be overcome. The judges have already indicated that at least one of the two issues justifying their stay, namely the disclosure of the identity of intermediary 143, will likely be solved, as soon as protection measures acceptable to intermediary 143 are put in place. It is not clear what will be required to address the second source of impasse, that is, the prosecution’s refusal to implement the chamber’s orders. The judges have issued warnings to Prosecutor Luis Moreno Ocampo and Deputy Prosecutor Fatou Bensouda that they are considering sanctions about the prosecution’s refusal to execute chambers’ orders.

12. Why is this trial taking so long? Is the court inefficient?

Although Lubanga was arrested and transferred to the ICC in March 2006, his trial did not begin until January 2009. This was due to a number of factors, including the ICC’s pre-trial proceedings which provide for a confirmation of charges hearing to decide whether or not the case should be sent to trial and, as explained above in question 10, because proceedings were stayed once due to the inability of the prosecution to fully disclose exculpatory information.  Once the trial began, the prosecutor had presented all his evidence and witnesses by the court’s summer recess in July 2009, and the defense started its case at the end of January 2010.

In the normal course of things, trials of international crimes do take time, with the prosecution and the defense entitled to vigorously present and defend their positions. In addition, some delays in the ICC’s first trials are also to be expected. The ICC is a new institution with innovative pre-trial procedures and a clear recognition of the right of victims to participate in proceedings. These innovations need to be worked out in practice. In addition, as a court of last resort, the ICC has a careful relationship with national courts that has given rise to challenges over the admissibility of proceedings before the ICC in most of its cases. As discussed above, questions have also arisen about how to balance the prosecution’s disclosure obligations with its need to protect the confidentiality of sources.

In the face of these challenges, judges of the ICC must remain committed to ensuring that justice is done, which includes respecting the accused’s rights to a fair and expeditious trial.

13. Why are all defendants at the ICC Congolese?

The presence of four Congolese nationals before the ICC is a tribute to effective cooperation in executing ICC arrest warrants against them by the DRC authorities (in the case of Lubanga, Katanga and Ngudjolo) and Belgium (in the case of Jean-Pierre Bemba). One arrest warrant, against the former chief of staff of Lubanga’s UPC, Bosco Ntaganda, has not yet been executed. Ntaganda is still at large in the Kivus region in eastern Congo. He is currently a general in the Congolese army and the DRC government has said that it is not, at the moment, willing to arrest him, despite its obligation under the ICC statute to do so.

The ICC has issued seven other arrest warrants in relation to its investigations in Uganda and in Darfur but these warrants have not been executed. The ICC does not have its own police force and relies on state cooperation to arrest suspects.

Not all of those who have appeared before the ICC are Congolese. The ICC heard in November 2009 confirmation of charges proceedings against Darfur rebel leader Abu Garda. Abu Garda had presented himself voluntarily to the court. The ICC judges later declined to confirm the charges against him and to move the case to trial. The prosecutor has indicated that he would present additional evidence against Abu Garda. Also responding voluntarily to summons to appear from the court, two other rebel leaders from Darfur recently presented themselves to ICC judges. Abdallah Banda, the commander in chief of the Justice and Equality Movement (JEM), and Saleh Mohammed Jerbo, former chief of staff of the SLA-unity, are both charged with three counts of war crimes in relation to an attack on African Union peacekeepers in Haskanita in 2007.

source: Human Rights Watch

Chad has accused the International Criminal Court of only targeting African leaders, as it justifies its decision not to arrest Sudan’s President Omar al-Bashir.

Chad’s ambassador to the US told the BBC that justice suffers if it is unfair.

The ICC accuses Mr Bashir of war crimes and genocide - which he denies.

Chad is the first ICC signatory Mr Bashir has visited since he was indicted in 2009.

All of the five cases the ICC is currently dealing with are in Africa but The Hague-based court says it is up to member states to refer cases for it to investigate.

It was set up to prosecute war crimes, crimes against humanity and genocide.

The ICC’s chief prosecutor rejects the accusation of bias against Africa, saying not only are the worst crimes being committed in the continent, but the victims are also African.

The African Union and the Arab League have always opposed the ICC’s decision to issue the arrest warrants issued over the conflict in Darfur.

Chad’s ambassador Ahmat Mahamat Bachir said it was merely following the AU’s lead, despite a storm of protest from human rights groups.

“We are with the rule of law and everybody has to pay for his mistakes and for any crime he commits but when it will be selectively and targeting only African leaders it should not be accepted,” he told the BBC’s World Today programme.

He said there were many other leaders who deserved to be treated in the same way as Mr Bashir but he declined to name them.

Mr Bashir is charged with arming Arab militias accused of attacking black African civilians in Darfur after rebel groups took up arms in 2003.

The UN estimates the conflict has cost the lives of some 300,000 people and displaced a further 2.7 million.

The Sudanese government puts the death toll at 10,000 and says the problems in the region have been exaggerated for political reasons.

Mr Bashir is in Chad for a summit of the regional bloc, Community of Sahel-Saharan States (Censad).

Chad and Sudan have previously been accused of fighting proxy wars through rebel groups in the other country and Chad’s ambassador said the international community had urged the two countries to improve relations in order to bring peace to Darfur.

“When you normalise [relations] with a country, you are not going to arrest the head of state,” he said.

An ICC spokesman said Chad was obliged to implement its judges’ decisions and co-operate with the request for Mr Bashir to be arrested.

Human rights organisations condemned the Chadian authorities.

“Chad risks the shameful distinction of being the first ICC member state to harbour a suspected war criminal from the court,” said Elise Keppler of Human Rights Watch.

Amnesty International also called on Chad not to shield Mr Bashir and said the visit was an opportunity for justice.

BBC East Africa correspondent Will Ross says the next decision for Mr Bashir is whether to attend this weekend’s African Union summit in Uganda.

The African Union has accused the ICC of targeting the continent and recommended its members do not co-operate, but like Chad, Uganda is a signatory of the court.

Relations between Sudan and Uganda have blown hot and cold so often that Mr Bashir may well decide not to ride his luck and instead head home, our correspondent says.

source: BBC News