IJCentral: International Justice Central

International Criminal Court judges have decided that Thomas Lubanga could be charged with sexual slavery and cruel and inhumane treatment.

The request to include new charges came on May 22 from victims’ lawyers.

It stemmed from the numerous witnesses who have testified about the rape and severe abuse of young recruits to Lubanga’s militia, the military wing of the Union of Congolese Patriots,UPC.

The victims contend that the existing facts and witness testimony indicate additional crimes, and the charges should be “reclassified” to reflect that. The process regarding the reclassification of charges is outlined in Regulation 55 of the court, which states that new charges can be added only if they are based on existing facts and evidence.

In a July 14 decision, trial judges Elizabeth Odio Benito and Rene Blattman agreed that new charges could be added but wrote that they could also be based on fresh evidence – not only on existing facts.

Lubanga is currently charged with conscripting and using child soldiers, including young girls, to fight in the ethnic battles that raged in the eastern Ituri region of the Democratic Republic of Congo, DRC, during 2002 and 2003.

In a 28-page dissenting opinion, presiding judge Adrian Fulford said that Regulation 55 should not be used to add, substitute, or amend the charges, since the prosecutor must request those changes before the trial begins.

Fulford was not convinced by the arguments in the victims’ request.

“In my view, the proposals advanced by the victims do not raise the possibility that the legal characterization of the facts may change. Instead, the victims seek to add five additional charges.”

He said if the defence should appeal the majority opinion, the trial should be allowed to continue while the appeal is being considered. Otherwise, the trial judges “will not be able to hear further evidence until the appeal is resolved.”

Defence lawyers argue that adding new charges after months of testimony and 30 witnesses would gravely breach Lubanga’s rights and his rights of due process.

The court is currently in recess, and a hearing on the possible addition of charges will be held later in the summer.

originally posted @ The Lubanga Trail

Wow - is really the only thing I can come up with after reading this.

Below is the relevant section of the transcript from yesterday’s U.S. State Department press briefing by Phillip Crowley. If you have the bandwidth (I don’t) you can watch the video of it. And if anyone knows who this incredibly persistent member of the press corps asking the questions was, please let me know.

I’m all for them doing a very thorough review of Sudan policy. And I understand there will be at least as many different positions in the Administration as there currently are in the advocacy community on the right way forward - God knows it’s a complex situation. But at some point I don’t think it’s unreasonable to expect an Administration to get a position together - - and more than six months into their time in office would seem to be hitting that point.

I’m starting to feel like almost any position would be better than this muddle. The one thing that surely everyone from Gration to Rice, Reeves to de Waal and beyond can agree on, is that divisions among those it interacts with work to Khartoum’s advantage. We have seen it in the south, in Darfur, between the rebels, between the aid organizations who did and did not go back in, between AU members over the ICC, and now we are seeing it with Obama Administration as well. Time’s up guys. Finish the review and take a policy position.

31 July, 2009 [a.k.a. -1994 press briefing redux]

QUESTION: Yesterday, on the Hill, the special envoy for Sudan said that there was no evidence to support the designation of Sudan as a state sponsor of terrorism, said that sanctions were hurting his ability to do his job and they weren’t effective. And I’m wondering, since the building didn’t have a reaction to this yesterday, I’m wondering what the reaction is today.

MR. CROWLEY: There is a comprehensive policy review that is going on regarding Sudan. Obviously, there are a number of issues attached to that. Obviously, the situation in Darfur is critically important, as is implementation of the Comprehensive North-South Peace Agreement, the resolution of which will fundamentally affect the future of Sudan. We have a number of bilateral issues with Sudan - obviously, terrorism being a crucial one. We have received improved counterterrorism cooperation with Sudan in recent years. So that process is ongoing, and I would expect it to be completed in the coming weeks.

QUESTION: Okay. Thinking back on your answer, I’m not sure you answered my question.

MR. CROWLEY: You made a detailed rundown of –

QUESTION: Well, here’s the - let me rephrase it then. Does the Administration agree with General Gration’s assessment?

MR. CROWLEY: Assessment?

QUESTION: Of - that the sanctions - that Sudan is not - that there’s no evidence that Sudan is a state sponsor of terrorism, as it is designated; that the sanctions are hurting his ability - his –

MR. CROWLEY: Okay. Well, on that issue, obviously, as we speak, Sudan is on the state sponsor of terrorism list. It was put on the state sponsor of terrorism list for a very good reason. There is a legal process that you have to go through, set legal criteria if there’s a decision to remove a country, any country, from a state sponsor of terrorism list. But I would just say that all issues attached to Sudan are part of this review, and this review is ongoing.

QUESTION: I’m still not getting the answer to my question. Does the Administration agree with what General Gration said yesterday on the Hill?

MR. CROWLEY: On what subject? I –

QUESTION: On what I just asked you about.

MR. CROWLEY: All right.

QUESTION: I mean –

MR. CROWLEY: This is harder than - let’s face it, this is –

QUESTION: He also said that it was a political decision to keep them on.

MR. CROWLEY: On the issue of whether Sudan is a state sponsor of terrorism, it’s on our list, it remains on our list. There’s a set process in law and - but where we have been with Sudan, where we are with Sudan, where we want to go with Sudan is all incorporated into this review. And it is ongoing, and we expect this review to be completed. At that point, I think the President, the Secretary will lay out where we’re going to go with Sudan going forward.

QUESTION: I’m sorry, I’m obviously dense because I don’t think you’re answering my question. I mean, I don’t see how you think that that’s an answer to the question.

MR. CROWLEY: Well –

QUESTION: Does the Administration agree with the remarks that General Gration made yesterday on the Hill?

MR. CROWLEY: Well, I mean, it was a detailed –

QUESTION: Or is he on his own?

MR. CROWLEY: I mean, what I’m having trouble with is, it was a very detailed testimony. It touched on a number of subjects in the relationship.

QUESTION: But I’m specifically asking you about the state sponsor of terrorism - him saying it’s a political decision to keep them on, him saying that there’s no evidence –

MR. CROWLEY: Well, all I can say is today, Sudan remains on the state sponsor of terrorism list. It was put there for very good reason. And there is a process that the government goes through if it - as it - I mean, we evaluate this all the time. We’re always evaluating a variety of countries in terms of the issue of terrorism.

QUESTION: I understand that. That’s fair.

MR. CROWLEY: And this is part of the ongoing review that is currently underway.

QUESTION: Well, what is part of the ongoing review?

QUESTION: Taking them off the list is part of the –

MR. CROWLEY: Yeah, we’re going - I mean, I can only repeat what I just said. There are a wide range of –

QUESTION: I am trying to get you to answer a specific question about whether General Gration is speaking for the Administration, or if he’s out on his own freelancing when he says things like that, as - particularly that it’s a political decision to keep them on the list, that there’s no evidence, and that the sanctions are hurting the ability - his ability to do his job.

MR. CROWLEY: Well, actually, there is a legal process that you have to go through.

QUESTION: I’m not interested in the process. I’m interested in you - the Administration’s response to his testimony.

MR. CROWLEY: I’m giving you the Administration’s response to his testimony, which is: Today, Sudan is on the state sponsor of terrorism list for a good reason, and today, there is no change to their –

QUESTION: So there’s a disagreement?

QUESTION: Where –

MR. CROWLEY: Go ahead.

QUESTION: Just to follow up, just to be specific, is this - is taking them off the state sponsors of terrorism list under part of the review? Is this what you’re looking at in great detail, number one? Number two, where do you stand on the genocide issue? Do you think genocide is taking place or not taking place?

MR. CROWLEY: On that second point, the President has said that genocide has taken place in Darfur. But as General Gration himself said yesterday, our focus is not on definitions. Our focus is right now on the dire situation that we see with the people of Darfur.

QUESTION: But why is your focus not on definitions? I mean, if genocide is taking place, that unleashes a whole gamut of responses. So what you’re saying is if the genocide has taken place - but you’re not sure whether it’s still taking place because you’re - this is all under review and you’re still thinking about it?

MR. CROWLEY: Well, what’s important here - I mean, in any kind of evaluation - and we’re going through an evaluation right now - we take stock of what has happened, we take stock of what is happening. And most important, we look forward - there are a number of critical relation - critical issues inherent in the relationship between the United States and Sudan.

The situation in Darfur is of critical importance and has been for some time. The future of the country hinges on implementation of the comprehensive peace agreement and the decision that will be made in the south in 2011 regarding its independence. This is - this relationship is not about any one thing. It’s about many, many things. Terrorism is a concern to us because of actions that Sudan has taken in the past, which is why - but as we are looking at our bilateral relationship and the other issues attached to that, we are reviewing all of these aspects, where Sudan stands in terms of combating terrorism. And our evaluation of that obviously can have an impact in future decisions.

QUESTION: So in other words, labeling what is happening as genocide would have an impact on how you move ahead with the North-South agreement, and that could jeopardize your chances of getting the government to really move ahead on the North-South agreement? Am I understanding this correctly? That’s why you have this linguistic problem?

MR. CROWLEY: As General Gration said yesterday, his focus is on the current situation in Sudan, the plight of the people of Sudan, which includes the plight of the people in Darfur, and what we can do - what the international community can do, and what the Government of Sudan must do to improve their situation.

QUESTION: But some people think that what you’re doing is you’re playing down the situation so that you can keep Khartoum happy so that you can get concessions from them in other areas, and that this is making the situation on the ground even worse, and that it’s - could be comparable, if this - to, you know, what happened, for example, in Rwanda-Burundi, for example, where the administration - the Clinton Administration took a very, very, very long time to label something as genocide and, in fact, didn’t act. So those kinds of accusations are going to, I would suspect, be thrown at you, as a top State –

MR. CROWLEY: Well, no. I would - again, let me go back and repeat what the President has said. The President has said that what occurred in Darfur - what has taken place in Darfur has been genocide, and we remain deeply concerned about that.

QUESTION: Let me just ask, again, the question: Is the Administration seriously looking at taking Sudan off the terrorism list as part of its review? I didn’t hear an answer to that.

MR. CROWLEY: It’s safe to say that we are currently reviewing all issues related to our relationship with Sudan and - as point one. Point two is that we are always looking at all countries in the world and making judgments on a continuing basis, based on intelligence, of what countries are - may be guilty of aiding and abetting acts of terrorism. And so on a continuing basis we’re not only evaluating countries that perhaps should be put on that list, we also on a continuing basis review countries that are on the list and where their performance has changed in any way. And Sudan is no different than what we do for all of the countries on that list on a continuing basis.

Yes.

QUESTION: Will you take the special envoy comments into consideration during this review?

MR. CROWLEY: I’m sorry. Try again?

QUESTION: Would you take the special envoy’s comments yesterday into consideration during this review?

MR. CROWLEY: Well, clearly, in a comprehensive, government-wide policy review, the special envoy for Sudan will play a critical role in that policy review. And then once the President makes specific decisions along with the Secretary of State, implementation of whatever policy is decided.

Yes.

QUESTION: Back to North Korea –

QUESTION: No, no, no. Can we - I need to stay on this. I’m sorry. I still am looking for an answer to my - is there any daylight between General Gration’s comments and the Administration’s thinking?

MR. CROWLEY: General Gration is the special envoy for Sudan.

QUESTION: Is he speaking for the Administration, or is he speaking on his own?

MR. CROWLEY: General Gration is a member in good standing with the Administration.

QUESTION: And he, in those comments yesterday, reflected the Administration’s current thinking on the situation in Sudan?

MR. CROWLEY: Well, again, and my caveat, Matt, is that there is a - General Gration spoke about issues that are a subject of the policy review, a review that is ongoing. So –

QUESTION: But the Administration’s current thinking is at odds with what he said.

MR. CROWLEY: Well, I would say that –

QUESTION: Is that correct?

MR. CROWLEY: — it is safe to say on an issue as large and complex as Sudan, you may infer that different agencies, different individuals may agree broadly on many things, and may have differences of view on certain elements. In the Obama Administration, there is a very healthy interagency process. There are genuine debates that go on all the time within the Administration about very difficult and very challenging information.

The President has created an atmosphere that encourages debate. And in debate about complex issues, it is not unusual that different individuals and different agencies may come at an issue with different perspectives. That all is part of a valid and effective review process. Sudan is no different. I think you’ll have - you’ve reported similar issues when it comes to North Korea, Iran, other things.

There is a policy review going on. I’m sure within that policy review, certain elements of that are being debated, and it may well be that different individuals have different perspectives. But the policy review is ongoing. The President has not yet made final decisions on what we’re going to do with respect to Sudan. General Gration has been traveling extensively in the region, has had extensive consultations with the Government of Sudan and other governments that are focused on Sudan as well, and brings that perspective back to Washington, and that perspective informs what he says on the Hill and what he says to the President and what he says to the Secretary of State.

QUESTION: Okay. So in other words, what you’ve just said is that he is not speaking for the Administration. This is his own personal view.

MR. CROWLEY: Well, no, what I’m saying is General Gration is the special envoy for the Administration for Sudan, and he brings an important perspective to the ongoing debate about -

QUESTION: But he was talking about –

MR. CROWLEY: — what we should do in the future with and about Sudan.

QUESTION: So his testimony then was his own perspective and not Administration policy?

MR. CROWLEY: I’ll try it again, which is there is an ongoing review. General Gration is part of that review. I think what you heard on the Hill was his current perspective on the current situation.

QUESTION: All right.

MR. CROWLEY: Whether that may or may not end up being exactly what the President and Secretary of State decide in terms of our policy approach to Sudan.

QUESTION: Okay.

QUESTION: What –

QUESTION: It’s crystal clear now. (Laughter.)

This entry was posted on Bec Hamilton’s blog.

this article was posted on the Huffington Post on July 30, 2009

The Obama administration is in the midst of a contentious review of its Sudan policy, which was the subject of three hearings on July 29 and 30 on Capitol Hill. The outcome of the debate will help determine the future of millions of people from Sudan and the surrounding region.

At the July 29 Africa Subcommittee hearing, members heard a bipartisan critique of the current direction of U.S. policy towards Sudan. Rich Williamson, Roger Winter and I all have negotiated extensively with the regime in Sudan, have roughly a combined six decades in working on or in Sudan, and have a very clear idea of what is required for lasting peace to have a chance in that embattled country.

This hearing comes at a moment in Sudan’s history fraught with danger and potential. There is no effective peace process for Darfur, but one could be built with U.S. leadership. The CPA is on the brink, but could be salvaged if U.S. engagement deepens. Next year’s elections are at risk, but could become an important opportunity to strengthen opposition parties and democratic structures crucial for the referendum and for Sudan’s political future. The referendum itself is doubtful, but its prospects could be enhanced with a credible international roadmap.

The major unknown variable that will help determine whether the dangers or the opportunities get maximized is the unresolved internal debate over the direction of U.S. policy towards Sudan. In the absence of any agreement on the policy, U.S. diplomatic engagement has been energetic, for which Special Envoy Scott Gration should be credited. But the substance of this robust engagement has been fraught with missteps, lack of internal coordination, and an overall aversion to pressuring the ruling National Congress Party (NCP). Sustained pressure leveraged by meaningful and focused sticks is the principal tool that has moved the NCP to change its behavior during the twenty years of its authoritarian rule. This substantial track record of empirical evidence of the value of pressure makes the direction of U.S. diplomacy all the more questionable.

In fact, Special Envoy Gration has stated that “right now we are looking at carrots and looking proactively.” That is the wrong message to be sending the NCP. They will eat those carrots and continue with the deadly status quo in Darfur and the South.

There is also a broader inconsistency in U.S. foreign policy when it comes to Sudan. The Obama administration has resolutely worked to craft more formidable international coalitions to isolate North Korea and Iran for important U.S. policy objectives. However, the U.S. is not doing the same for Sudan, despite the existence of a regime there that is responsible directly or indirectly for the loss of two and a half million lives in the South and Darfur.

A Better Way Forward for U.S. Policy

In the context of its policy review, President Obama should spell out a clear path forward for U.S. policy, consistent with the positions that he has taken previously as a senator and presidential candidate, and also consistent with positions taken in their previous incarnations by Vice President Biden, Secretary Clinton, and Ambassador Rice.

1) U.S. leadership in constructing a more effective Darfur peace process, using as a model the process that led to the CPA involving a lead role for the U.S. and a multilateral support structure that provided international leverage, expertise, and support;

2) U.S. leadership in supporting the implementation of the CPA, continuing the trend of deeper engagement over the last few months but structuring clear penalties for non-implementation of any of the key provisions;

3) U.S. leadership in supporting the democratic transformation of Sudan by supporting the electoral process, providing institutional support to opposition parties and civil society organizations, and building the capacity of the Government of Southern Sudan;

4) U.S. leadership in preparations for the South’s referendum in 2011, which will be a make-or-break process for the future of both North and South.

5) U.S. leadership in support of accountability. The ICC indictment of President Bashir is a crucial opportunity to address the cycle of impunity that has fueled some of the worst war crimes in the world. Sweeping violent history under the rug ensures its continuation.

The essential word that repeats throughout all these goals is “leadership.” U.S. leadership - multilaterally and when necessary unilaterally - will be an enormously influential ingredient in a successful transition to peace and democracy in Sudan.

But success will require greater leverage than that which presently exists. The debate internally within the U.S. government in part rests on the degree to which incentives or pressures ought to be favored instruments for changing the behavior of the Sudanese regime, the Darfur rebels, and the GOSS. It is the view of this panel and the activist organizations that comprise the Darfur movement that the way forward should involve deeper diplomatic engagement that is rooted in multilateral pressures and the credible threat of significant consequences for policies or actions by Sudanese parties that undermine peace efforts and lead to worsening humanitarian conditions. In the absence of these pressures, and if incentives are all that are put forward, then failure is guaranteed. For example, the U.S. appears more interested in negotiating the implementation of the provisions of the CPA that have already been painfully negotiated, rather than marshalling the international coalition necessary to pressure the parties to implement what they have already agreed.

Success will also require the construction of credible and effective processes that allow for the achievement of U.S. policy goals. First and foremost, the glaring lack of an effective peace process for Darfur calls out for greater U.S. leadership in constructing from the existing elements a revitalized process that has the chance of ending Darfur’s war. Secondly, the U.S. should intensify its early efforts to revive the CPA and back these efforts with the construction of clear multilateral consequences for violations or non-implementation of key elements of the deal.

The bottom line is that there must be consequences for committing atrocities and for undermining peace. An incentives only strategy will guarantee failure.

By John Prendergast

John Prendergast is Co-Chair of the ENOUGH Project, an initiative to end genocide and crimes against humanity.

Centuries-old windmills are joined on the Dutch horizon by groves of wind turbines. Each of these proud and practical structures testifies to human ingenuity and our insistence on progress. You can see both from the gleaming, modern tower that houses the International Criminal Court, where I just concluded a two month stint in the Office of the Prosecutor. For the first time in history, a permanent public prosecutor exists to investigate the world’s most heinous crimes and an independent judicial body exists to judge the alleged perpetrators. A court like this was contemplated after World War Two. Now, after more than a half-century of letting political leaders literally get away with murder, a new model of international justice is taking shape.

Last week’s PBS broadcast of the new documentary film “The Reckoning,” brought the Court and its growing pains some added visibility. The ICC’s most high profile challenge today is undoubtedly the Darfur cases. The “G” word—genocide—grabs the headlines. I am firmly convinced of what the Prosecutor and the Obama Administration believe: there is genocide in Sudan. But the ICC’s final word on this matter will occur in a courtroom. Having seen it up close, I have confidence in what happens inside those four walls, one of which is entirely transparent, albeit made of bullet proof glass. That glass invites the witnessing eyes of a public that comes from all over the world to see due process and something approximating justice.

Given my confidence in the court itself, it is not the “G” word (genocide) but really the “I” word which I believe defines the ICC’s central challenge today: “I” for Impunity. The court’s statute calls it to “put an end to impunity” for perpetrators of the worst crimes and in doing so, to contribute to their prevention. How? The ICC can only take a case when a sovereign nation’s justice system is unable or unwilling. Recently, for example, ICC Prosecutor Luis Moreno-Ocampo told Kenyan officials that if Kenya prosecutes those responsible for the ethnic bloodshed following 2007’s contested election, he will drop his investigation. The incentive is obvious and the result should be that either way, impunity is not an option. Replicated across the globe, this model means the ICC can regularly succeed without filing a single charge. The winners are not only the beleaguered citizens of every country cursed by such crimes, but the entire international community for which the resulting stability can be a critical prize. Lawyers call this practical, strategic, and unprecedented model “complementarity.” It is based on a slight but significant reformulation of the world’s traditional deference to national sovereignty. Simply put, national sovereignty still governs, as long as national sovereignty does not include impunity for crimes against humanity.

Critics want the Prosecutor to back off, particularly in the Darfur case charging Sudanese President Omar Al Bashir with major crimes. China and blocs of Arab and African nations cite disruption of peace and humanitarian efforts. Provocatively, ICC Prosecutor Moreno-Ocampo has said that suspending the case to promote reconciliation would be like discovering Auschwitz and negotiating with the Nazis over how to run the camps. If the Court cuts a deal, its creation adds nothing new to the world’s failed arsenal for protecting human security.

Charges that the ICC is obstructing peace or relief, or that it is racist or neo-colonialist? These are the sounds of the world struggling to understand a new model and blaming it for the colossal failures of old ones. None of them should stop the Court, but each underscores a cautionary note for the ICC: Stay focused. The Prosecutor and the Court can best contribute to progress through adhering to due process, maintaining stubborn independence, and modeling its novel blueprint for ending impunity. In The Hague, these imperatives appear very well understood. That important nations, including the United States, have yet to join the ICC is not a major factor right now. Secretary of State Clinton has stood by the Darfur case, which was, after all, referred to the ICC by the UN Security Council with the Bush Administration’s blessing. If the Court and the Prosecutor deliver results, the world will come around. Thanks to the vision of its builders and thanks more than anything to the brave eye-witnesses to horror who testify in its courtrooms, the ICC is fitting right in among towering icons of the march of human progress.

This article was written by Andrew Tarsy: Former US Department of Justice trial attorney

Andrew Tarsy recently served an appointment as a Visiting Professional in the Office of the Prosecutor at the International Criminal Court in The Hague.

this article was posted in the Huffington Post on July 30, 2009

High profile international lawyers Sir Geoffrey Nice QC and Rodney Dixon have once again applied on behalf of the groups, the Sudan Workers Trade Unions Federation (SWTUF) and the Sudan International Defence Group (SIDG), to submit an amicus brief to the ICC in the Bashir case. Their first attempt to do this earlier in the year was rejected by the Pre-Trial Chamber.  Now they are applying to the Appeals Chamber as it considers whether the Pre-Trial Chamber used the incorrect standard to assess the evidence on the genocide charge against Bashir when issuing the arrest warrant.

According to their application the SWTUF is “the union of all trade unions of Sudan with affiliates from 25 state unions and 22 professional federations” and the SIDG is “a non-governmental committee of Sudanese citizens established out of concern for the negative effects that ICC arrest warrants could have for the peace process in Sudan and for the ordinary people of this country.” In this sense it is not a “Government of Sudan” application, however one of their arguments to the Court is that “the Appeals Chamber could benefit from submissions contrary to the Prosecution’s arguments which seek, in an adversarial setting, to highlight the flaws in the Prosecution’s submissions.” (Nice/Dixon, para 16). In this sense, they are asking to take on what would be the role of the Defence if President Bashir engaged with the ICC, giving some credence to speculation that Nice/Dixon are playing a role that allows the Sudanese government to interact indirectly with the ICC.

The only issue before the Appeals Chamber is “Whether the correct standard of proof in the context of Article 58 requires that the only reasonable conclusion to be drawn from the evidence is the existence of reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court” (p.5 Decision granting Leave to Appeal ).

In its arrest warrant decision, the Majority stated that “if the existence of a GoS’s genocidal intent is only one of several reasonable conclusions available on the materials provided by the Prosecution, the Prosecution Application in relation to genocide must be rejected as the evidentiary standard provided for in article 58 of the Statute would not have been met.” (para. 159 ). The OTP’s document in support of appeal argues that this approach is incorrect. They argue that by requiring the inference of specific intent to be the only reasonable conclusion, rather than a reasonable conclusion, the Majority was defacto applying a “beyond a reasonable doubt” standard - one that should only be used at the trial stage, rather than the “reasonable grounds” standard required by Article 58 of the Rome Statute for the arrest warrant stage.

The Nice/Dixon application states that if they are granted leave to submit an amicus they will agree with the OTP that the appropriate standard to use is that of Article 58’s “reasonable grounds to believe” but that, contrary to the OTP’s position, they will argue that this was in fact the standard the Majority applied when assessing specific genocidal intent.

They argue that when the Majority said that in order to confirm the charges the only reasonable conclusion must be that reasonable grounds exist, the Chamber was simply saying that “it must be satisfied that reasonable grounds are established on the evidence.” (Nice/Dixon, para 39, italics in original ). They further argue that parts of the decision in which the Majority “uses words such “concludes”, “finds” and “considers” that there are reasonable grounds to believe serve the same purpose as [the phrase] “the only reasonable conclusion is that there are reasonable grounds to believe.”” (Nice/Dixon, para. 39 ).

It is with this latter argument that I particularly disagree. The only occasions in which the Majority phrased its standard as “the only reasonable conclusion” was when it was assessing evidence related to inference of specific intent. It seems implausible to argue that this was by chance and that what they really meant was to apply the same standard as they applied when assessing the rest of the elements, but just happened to use different phrasing to describe what they were doing.

I continue to believe that the Majority used the incorrect standard in assessing genocidal intent - but even if the Appeals Chamber agrees, this will not, in itself, take the Prosecution to a warrant for the genocide charge. Although the OTP’s document in support of appeal argues that if the Appeals Chamber finds the Pre-Trial Chamber did not apply the correct standard it has enough information on the basis of facts already confirmed by the Pre-Trial Chamber to rule that using the correct standard the genocide charge should be included, I will be surprised if they take this step. I think the most likely scenario is that it will be sent back to the Pre-Trial Chamber for reconsideration on the basis of the “corrected” standard. Bottom line - there’s a long road ahead.

In any case, issues relating to the substance of the Nice/Dixon arguments remain moot until we find out if the Appeals Chamber grants them leave to submit. It is an interesting approach they have taken to the argument of why they should be heard, effectively positioning themselves as the ‘Defence-in-lieu-of-a-Defence’. Might work. Will let you know what transpires . . .

By BEC HAMILTON | Published: JULY 28, 2009

For those of you interested in some behind the scenes notes on the making of “The Reckoning”, check out this interview (and comments) with Producer Paco de Onís posted at Harvard’s Hauser Center.

The recent statement issued by the African Union, where they refuse to cooperate with the ICC regarding the arrest warrant it issued for Sudanese President Omar al-Bashir, would appear to be a de facto declaration that Africa will be an impunity zone for its leaders.  Because of all the mainstream media attention that the AU statement received it would be easy to conclude that Africa doesn’t want justice or accountability for mass atrocities committed by its leaders and warlords.  But the AU statement unleashed a furor amongst African civil society groups angered at this brazen ploy by their leaders to shield themselves from justice.  Here I will share with you a statement by Chris Ongom, Director of the Uganda chapter of Africa Youth Initiative (AYINET), and is representative of the cries for accountability and responsible governance that the AU statement sparked:

“Uganda has invited Sudan president to attend SMART partnership business conference in Munyonyo at the end of this month.I have no problem with that.The problem comes where goverment representatives begins to utter public statements ignoring Uganda legal obligation under the Rome Statute of the International Criminal Court which includes implementing the arrest warrant aginst Bashir.What need to be sated clear in this generation is African leaders need to be told the truth plus facts that they can not continue to down play their people beacuse of their ignorance.They abused their leadership and cause death,atrocities to their own and when it comes to accountabilty,they turn out to be gods who can not be touch.Now everybody is talking against arresting Bashir not against the death of Darfurians,fellow African how can the Western world be praised only if they are giving humanitarian assistance,paying for our national budget and if it come sto the issue of justice,they are bad news.African leaders are making fools of themseves not any body.It is upon those who have been born,raised,and grown down here in Africa to use African language and comminicate the truth of the matter that we need justice to be done.Perpetrators in Africa and other places must answer for the crimes they committed irrespective of wether you are a general or not.The bence mark is you have comitted crimes.Come OR GO AND ANSWER BEFORE THE ICC OR NATIONAL JUDICIAL SYSTEM WHICH HAS DOMESTICATED THE STATUTE.Please lady and gentlemen as civil society let us continue this advocay we are neither secured nor safe.We are victims since are the ones who are always down there to stand with the victims in emergencies and crises.”

Enough will host a live video conference tomorrow with Enough Policy Advisor Colin Thomas-Jensen, who will provide an update about recent developments with the ICC and take questions from viewers. We will be live at 1p.m. EST tomorrow, July 15. Click here to tune in.

The Reckoning: The Battle for the International Criminal Court is an epic, nail-biting account of the new International Criminal Court’s struggle to prosecute perpetrators — however powerful or concealed they may be — of crimes against humanity as the Court fights to establish its own credibility on the world stage. The film shows the lead-up to the court’s most recent and sensational action, the indictment of Sudan’s President Omar al-Bashir on March 4, 2009, for crimes against humanity and war crimes. Established by treaty in 2002 in response to the mass atrocities that stained the late 20th century, the International Criminal Court (known as the ICC) is the first permanent international criminal court created to seek justice for victims of genocide, war crimes and crimes against humanity. But the Court, given a historic mandate by its founding 100-plus nations, was not given a police force or other enforcement arm. Moreover, the ICC faces major obstacles in pursuing its mission from nations that did not join the treaty.

Paco de Onís, Peter Kinoy and Pamela Yates’ The Reckoning, an Official Selection at the 2009 Sundance Film Festival, has its national television premiere on Tuesday, July 14, 2009 at 10 p.m. on PBS during the 22nd season of P.O.V. (check local listings). The series continues on Tuesdays at 10 p.m. through Sept. 22, and returns with fall and winter specials. American television’s longest- running independent documentary series, P.O.V. is the recipient of an Emmy for Excellence in Television Documentary Filmmaking.

*** This blog post is from Bec Hamilton’s blog

As readers of this blog will know, I think one of the most important and useful aspects of the ICC is its complementarity provision (which is why I am worried about the ICC’s recent justification for its jurisdiction over the case against Germain Katanga). The ICC should only ever be a court of last resort, and the strength of the system established by the Rome Statute is the potential it has to encourage domestic level prosecutions. For that reason (as well as being based in Nairobi), I am watching closely the interaction between the ICC and the Kenyan government over how to pursue accountability for the 2007 post-election violence.

Yesterday, Kofi Annan handed the ICC Prosecution a sealed envelope of materials (derived from a 3-month investigation into the violence by the Waki Commission - you can get a copy of the Commission’s full report here). This followed a meeting between the Prosecutor and Kenyan officials earlier in the week, where they agreed that so long as the Kenyan authorities carried out genuine judicial proceedings against those most responsible for the violence, the ICC would have no grounds to intervene.

In order to play it’s “over the shoulder” monitoring function in cases like Kenya (as well as Colombia), there must be agreed upon benchmarks to indicate whether proceedings are progressing at the national level. In their meeting, Kenyan officials agreed to provide the ICC Prosecution with the following by September this year:

will be following the progress of this situation on this site over the coming months. Kenya’s next elections are in three years time. Holding those responsible for the post-2007 election violence before then is a key ingredient in the prevention of a repeat performance in 2012.

By BEC HAMILTON