IJCentral: International Justice Central

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

The International Criminal Court (ICC) must probe alleged crimes against humanity after Zimbabwe President Robert Mugabe’s youth militia launched a campaign of rape during 2008 elections, a campaign group said on Wednesday.

Witness statements by rape victims, vetted by a team of international lawyers, suggest the ruling Zanu-PF unleashed “sexual terror” against women who supported the Movement for Democratic Change (MDC), it said.

The charges were made by Aids-Free World, an advocacy group co-founded by the UN’s former special envoy for Aids in Africa, Stephen Lewis, after an 18-month investigation.

A legal dossier will be handed to the ICC in The Hague next month, in the hope that the court’s prosecutor can launch proceedings for crimes against humanity, Lewis said.

“What we are calling for collectively is serious intervention at every level,” Lewis said at a press conference at the world Aids forum in Vienna.

He urged the UN Security Council, the Southern African Development Community (SADC) and the African Union to end their “criminally delinquent” silence.

“We know as we are sitting here that it’s going to happen again,” said Lewis.

“There’s not the slightest question that Mugabe has his youth corps and his war veterans, and they are ready to do it again and the world is silent. How is it possible that he’s allowed to get away with it?”

The probe, “Electing to Rape: Sexual Terror in Mugabe’s Zimbabwe”, was released in Johannesburg last December.

It detected a surge in rape ahead of the first round of Zimbabwe’s blood-stained presidential elections, which reached a crescendo before the second round.

So far, 70 personal accounts, checked by lawyers who made six trips to Southern Africa and supported by certified affidavits, have been collected, Aids-Free World said.

In 300 hours of testimony, victims identified 241 men who raped them, and estimated the total acts of rape to be 380.

Tip of the iceberg

But this is just the tip of the iceberg, as many other rape victims are too fearful—or too sceptical of getting any redress against their attackers—to come forward, said the report.

“Every victim supported the MDC, and in every attack the perpetrators were clearly identifiable as Zanu-PF youth militia or war veterans,” the term for former fighters in the war against white minority rule, Aids-Free World said.

Activists were raped in front of their families or abducted by Zanu-PF youths who marched them to militia bases or camps in the countryside, where they were repeatedly assaulted, sometimes over days, the document said.

“Many women were forced to watch their husbands, children and parents killed or tortured before they were raped,” it said.

“Nine of the women believe they were infected by HIV/Aids as a result of the rapes, and an additional 17 women also tested positive in the months following the rapes, raising the possibility that their rapists infected them. Ten women reported that they became pregnant by their rapists.”

During their ordeal, the Zanu-PF men repeatedly accused the women of being “sell-outs”, of “giving the country back to the whites” or being the “whores” or “puppets” of MDC candidate Morgan Tsvangirai.

Police were indifferent to the few women who had the courage to file a complaint, and not a single rapist has been prosecuted, it said.

The MDC said more than 300 people were killed in pre-election violence.

Mugabe claimed victory in the disputed elections, which eventually led to a unity government.

It is meant to draft a new constitution that will pave the way to fresh elections, but the reform process is running about a year behind schedule.

source: AFP

CLAIMS that the International Criminal Court was primarily and selectively targeting Africa were “troubling” but “did not bear scrutiny”, Chief Justice Sandile Ngcobo said on Friday.

The court, formed in 2002 under the Rome Statute, was denounced by the African Union when its prosecutor, Luis Moreno-Ocampo, issued an arrest warrant for Sudan’s President Omar al-Bashir for atrocities committed in Darfur. Commentators questioned why all the ICC’s investigations and cases were African.

It was also argued that the warrant would derail the fragile peace process in Sudan.

But Chief Justice Ngcobo said “abuses committed in sub-Saharan Africa have been among the most serious, and this is certainly a legitimate criterion for the selection of cases.” In many cases, he said, the ICC is involved in African affairs “at the invitation of the states themselves”.

Of the five “situation countries” targeted by the ICC for action, the cases of three of them — the Democratic Republic of Congo, Uganda and the Central African Republic — had been referred to the ICC by the governments of those countries.

Justice Ngcobo said the governments of these countries were “aware of their international obligations” and had invited the ICC “with full knowledge of the ramifications.”

He said Kenya had also signed the Rome Statute into its domestic law “with full knowledge of the potential consequences, including the possibility of investigation by the prosecutor”. Political violence that took place in Kenya after that country’s election in 2008 is the subject of an ICC investigation, but not at the request of its government.

The chief justice was speaking at a conference on the future of international criminal justice in Africa at the University of the Witwatersrand.

International criminal justice was “crucial to the preservation of peace and the attainment of justice,” he told his audience.

The existence of arrest warrants for leaders suspected of war crimes, he said, did not necessarily preclude peace talks. Nor did ignoring justice necessarily benefit the peace process.

Moreover, pursuing international criminal justice could lead to enhanced domestic law enforcement — strengthening the rule of law which was “key” to long-term stability.

But, he said, he recognised that it was “perhaps too early to draw any firm conclusions about the ICC’s legacy in countries where investigations are ongoing”.

source: Businessday.com

July 15, 2010 (ADDIS ABABA) — The International Criminal Court (ICC) is set to establish a liaison office in Addis Ababa after years of discussions on the initiative.

This comes after Judge Sang-Hyun Song, President of the ICC, concluded a two day visit to Addis Ababa, the headquarters of the African Union (AU) and met with its Commission Chairperson Jean Ping, who reiterated the body’s commitment to end impunity.

A statement by the ICC said that both Ping and Song agreed that the AU and the ICC share the common value of ending impunity and bringing about lasting peace.

“They also agreed to work to facilitate the establishment of the Liaison Office that would encourage dialogue and exchange of information and would thus be for the mutual benefit of the two institutions” the statement said.

African states have feared that The Hague was stalling on financing a launch to the liaison office after African countries collectively resolved not to cooperate with the ICC in arresting and handing over Sudanese President Omar El-Bashir who is wanted by the court for war crimes he allegedly committed in Darfur,

This week the ICC judges added the charge of genocide to the list of counts against the Sudanese head of state prompting criticism from Ping who said that the latest move will not help resolve the crisis in Darfur.

The Kenyan Attorney-general Amos Wako, who was mandated by African countries to write to the ICC to question the delay in establishing the office, was yesterday happy that finally, The Hague had agreed to fund the office.

“Those are good news because African member-states to the Rome Statute were concerned about the inactivity of the ICC when it had agreed to set up the office. It is a good reply to the letter that I wrote on their behalf,” he said.

The International Criminal Court is the only permanent international court established with the mission to help put an end to impunity for the perpetrators of the most serious crimes, namely the crime of genocide, crimes against humanity and war crimes, and thus to contribute to the prevention of such crimes.

source: Sudan Tribune

Prosectors at the International Criminal Court have appealed an order to free Thomas Lubanga, a militia chief from the Democratic Republic of Congo (DRC), after his trial was suspended.

The court, based in The Hague in the Netherlands, ordered his release on Thursday, after the court ruled prosecutors failed to identify a key witness.

Luis Moreno-Ocampo, the chief prosecutor, appealed the court’s decision on Friday in order to keep Lubanga behind bars until judges decide if the appeal has merit.

The court ruled on Thursday that Lubanga’s detention was no longer fair, because the trial had been suspended due to the issue of identifying witnesses.

Last week, the court suspended his trial and criticised the chief prosecutor for abusing court processes and ignoring the judges’ orders.

Security concerns

Moreno-Ocampo remained adamant on Friday that he would not release the name of an intermediary to Lubanga’s defence team until security concerns were addressed.

“The prosecution prefers to lose the case rather than to threaten the life of a person,” Moreno-Ocampo said.

He said he would release the name “as soon as protection is in place”.

Lubanga is accused of enlisting and conscripting children younger than 15 for his Union of Congolese Patriots, 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.

The ICC is also trying other accused Congolese warlords for crimes committed during the fighting in the giant, resource-rich African country.

Lubanga’s trial resumed in January, six months after prosecutors finished presenting their case.

His defence has argued that the child soldiers who testified against him made up their stories.

source:  AlJazeera

Judges at the International Criminal Court in The Hague have ordered the accused in its first case - Thomas Lubanga from Democratic Republic of Congo - to be freed.

However, he will not be released for at least five days, while the prosecution considers whether to appeal.

The trial was suspended last week after judges cited procedural irregularities.

Mr Lubanga has pleaded not guilty to charges of recruiting child soldiers.

The office of the prosecutor - Luis Moreno-Ocampo - was found to have not identified a key witness.

Judge Adrian Fulford said Mr Lubanga should be “freed without condition”, saying his detention was “no longer fair” after the trial was suspended.

In their ruling, the judges said: “An accused cannot be held in preventative custody on a speculative basis, namely that at some stage in the future the proceedings may be resurrected.”

However, the prosecution has five days to seek an appeal and, if the challenge is accepted, Mr Lubanga will remain in detention until that appeal is heard, the ICC said in a statement.

It is understood that the prosecution will appeal.

The trial of Mr Lubanga, which opened in 2009 after a seven-month delay over disputed confidential evidence, has been plagued by legal challenges.

The first witness at the trial retracted his testimony after first saying he had been recruited by Mr Lubanga’s fighters on his way home from school.

One of the problems facing the court is that Bunia - the capital of the Ituri region where Mr Lubanga was a rebel leader - was still considered a conflict zone.

This meant the safety of potential witnesses could not be guaranteed.

Mr Lubanga led the Union of Congolese Patriots (UPC), an ethnic Hema militia - one of six groups that fought for control of the gold-rich Ituri region from 1999 until 2003.

The land struggle turned into an inter-ethnic war in which an estimated 50,000 people were killed and hundreds of thousands were left homeless.

source: BBC News