IJCentral: International Justice Central

Libya Press Conference

The Hague
16 May 2011

Less than three months ago the UN Security Council unanimously required the intervention of our Office to conduct an impartial investigation into the crimes committed in Libya.  Today, the Office presented its evidence to the judges and is requesting the International Criminal Court to issue arrest warrants

The evidence shows that Muammar Gaddafi, personally, ordered attacks on unarmed Libyan civilians. His forces attacked Libyan civilians in their homes and in the public space, shot demonstrators with live ammunition, used heavy weaponry against participants in funeral processions, and placed snipers to kill those leaving mosques after the prayers.

The evidence shows that such persecution is still ongoing, as I speak today, in the areas under Gaddafi control. Gaddafi’s forces prepare lists with names of alleged dissidents. They are being arrested, put into prisons in Tripoli, tortured and made to disappear.

Most of the victims are Libyans, but the widespread and systematic attacks affect the international community as a whole. The crimes are crimes against humanity. That is why the Arab League and the African Union were concerned and the Security Council intervened.  Further, the Arab people in different regions of the world are playing a key role in exposing the crimes. The fear is not paralyzing them.

Muammar Gaddafi committed the crimes with the goal of preserving his absolute authority. He has absolute authority in accordance with Libyan law. His orders are binding even for the Congress. It is a crime to challenge his authority. He used his authority to commit the crimes.

The Office gathered direct evidence about orders issued by Muammar Gaddafi himself. The evidence shows that Gaddafi relies on his inner circle to implement a systematic policy of suppressing any challenge to his authority. His second eldest son, Saif Al Islam, is acting as a de facto prime minister and Al-Sanousi, Gaddafi’s brother-in-law, is his right-hand man, the Head of the Military Intelligence and personally commanded some attacks.  The Office documented how the three held meetings to plan and direct the operations.

Based on the evidence collected, the Prosecution has applied to Pre-Trial Chamber I for the issuance of arrests warrants against Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Sanousi.

The case is now before the judges. They can accept the request, reject it or ask for more evidence. 

In the meantime, the Office of the Prosecutor will continue its investigations: we will further investigate first, the allegations of rapes committed in Libya. Second, the allegations of attacks against sub-Saharan Africans wrongly perceived to be mercenaries. Third, the allegations of war crimes committed by different parties during the armed conflict that started towards the end of February.

The Office is liaising with the International Commission of Inquiry created by the UN Human Rights Council which will present its report to the Council at the beginning of June. There will be no impunity in Libya.

My Office has not requested the intervention of international forces to implement the arrest warrants. Should the Court issue them and the three individuals remain in Libya, Libyan authorities have the primary responsibility to arrest them. Libya is a member of the United Nations and it has the duty to abide by Security Council Resolution 1970. Libyans will lead.

When the time comes, implementing the arrest warrants will be the most effective way to protect civilians under attack in Libya and elsewhere. As in any other criminal case, the execution of the warrants will have a deterrent impact for other leaders who are thinking of using violence to gain or retain power.

Thank you.

A Cabinet Minister has launched a controversial campaign to stop the International Criminal Court from investigating and prosecuting post-election violence suspects.

Lawyer Mutula Kilonzo, who holds the Justice portfolio, claims that trial sought by the ICC chief prosecutor Moreno-Ocampo after he completes investigations in the next few weeks will be unnecessary when Kenya establishes a new judiciary, appoints an inspector-general of police, and installs a new director of public prosecution under the new Constitution.

The minister, whose docket is crucial to obtaining justice for the victims of the violence that broke out after the 2007 General Election, argued: “When these (appointments) are in place, we can say that Kenyan judges meet the best international standards. After that, I can even tell them not to admit the ICC case. Why on earth should a Kenyan go to The Hague?”

But the Minister’s proposal, raised in an interview with the Sunday Nation, drew immediate opposition from the Law Society of Kenya and Government Chief Whip Jakoyo Midiwo.

Law Society chairman Kenneth Akide also disagreed with Mr Kilonzo, saying the new Constitution requires that Kenya respect agreements it had signed, including the Rome Statute that created the ICC.

“The ICC has not been replaced because of the new Constitution,” Mr Akide told the Sunday Nation by phone from China.

He said the judiciary and police were yet to be transformed to effectively deal with post-election violence suspects. He added that, contrary to Mr Kilonzo’s assertion, the judiciary “has always existed, but the country sought ICC intervention because of lack of political will to prosecute the suspects.”

In an exclusive interview, Mr Kilonzo said the administrators of the Hague-based court should know that Kenya now has a “new prosecutorial system and a new police under a new Constitution.

“I’m totally convinced. One million per cent convinced. The case before the ICC has not yet been admitted. It can only be admitted after (ICC chief prosecutor Luis Moreno) Ocampo finishes his investigation.

“I advocate a local tribunal partly because I’m a Kenyan, and I cannot entertain the idea of a foreign court having to investigate a fellow citizen on offences committed against fellow citizens,” Mr Kilonzo said.

“Under Articles 2, 4, and 5 of the new Constitution, we can now tell the world:  If we appoint a new director of public prosecution, a new broom will sweep clean,” he said.

He said the Bill on vetting sitting judges and recruiting new ones, which would also look at “their temperament, their history and everything else”, was in place.

Mr Kilonzo, who has been at the forefront of pushing for the prosecution of post-election violence suspects, said the panel conducting the vetting of judges could have access to advice from intelligence services, the police, the office of the Attorney-General, and the Advocates Complaints Commission.

An ICC delegation is expected in the country next week. Mr Kilonzo’s comments come at a time when a more robust ICC process is at play as Mr Moreno-Ocampo appears keen to complete his investigations of key post-election violence suspects by the end of the year.

He is expected in the country in the next few weeks to bolster the ICC investigations. The ICC process was for some time overshadowed by the August 4 referendum, but it is now in high gear after the signing two weeks ago of an agreement to allow the court to set up an office in Kenya.

A section of the Cabinet is unenthusiastic about the ICC, while other ministers are pushing for charges against perpetrators of the violence that left 1,133 people dead.

The ICC’s actions could dramatically affect the country’s political scene as some of those mentioned in connection with the violence harbour plans to run in the 2012 General Election.

Mr Kilonzo said potential witnesses have been given protection in several places, but any trials could be carried out locally.

“My challenge to Kenya is this: You gave yourselves a beautiful gift on August 27. Give yourselves another one by telling the world through the institutions that we created to keep off,” Mr Kilonzo said.

The minister said he was personally unhappy with the way the country had dealt with the thousands of Internally Displaced Persons and that he would have liked a special division of the High Court to deal with the matter.

“Ocampo and ICC cannot solve that. It’s a Kenyan issue,” he said.

Mr Kilonzo has twice presented a Bill to the Cabinet to establish a special tribunal to deal with post-election violence cases, but it was not approved.

Another effort to establish a local tribunal in Parliament was similarly defeated, opening the way for the International Criminal Court to step in.

Having served on the National Dialogue and Reconciliation Commission, popularly known as the Serena Team, Mr Kilonzo also expressed concern that some politicians had rushed to announce their interest in senate seats and governorships “without realising that a huge number of Kenyans are living in deplorable conditions”.

Mr Midiwo said victims of post-election violence want resettlement and justice.

“The ICC was not coming here to force us to do a new Constitution. It came because the government failed its people. What am I supposed to tell my people whose relatives were killed,’’ he said.

Mr Kilonzo’s comments are likely to rub civil society the wrong way as well as other proponents of the ICC who wanted it to speedily deal with the Kenyan case.

Kenya National Commission on Human Rights chairperson Florence Jaoko-Simbiri said the country still needs the ICC, the new Constitution notwithstanding, as Kenya is a signatory to the Rome Statute.

“The country has not only domesticated the Rome Statute; the government has also made commitments to the ICC. I don’t see how the new Constitution prevents the ICC from coming,” she said.“Judicial reforms will take a while before being enacted. It will also take time before changes in police take place to facilitate credible investigations,” Simbiri said.

Nairobi lawyer John Mureithi Waiganjo said the government was mandated to cooperate with the ICC.

“The ICC has to continue with investigations and prosecute the culprits. It is wrong for the minister in charge of Constitutional Affairs and Justice to relate the new Constitution to the post-election violence. It was criminal and an offence against humanity,” he said.

In February last year, Parliament shot down a government Bill to set up a local tribunal to investigate the violence. The Bill sought to entrench the tribunal in the Constitution but was supported by only 101 MPs, far short of the 145 required to amend the law.

In opposing the Bill, MPs cited a lack of confidence in the judiciary and the potential danger that a local tribunal could spark ethnic tensions.

source: The Daily Nation

UNITED NATIONS — The prosecutor for the International Criminal Court said Wednesday he is collecting information on possible war crimes by NATO forces and the Taliban in Afghanistan.

Luis Moreno Ocampo said he is also conducting preliminary inquiries on possible war crimes in Georgia, Colombia, Kenya, Ivory Coast, and by Israeli forces in Gaza.

Ocampo told a briefing on the emerging international criminal justice system that he plans to open four new investigations in the next three years, but he refused to disclose any details.

The International Criminal Court, which began operating in 2002, is the world’s first permanent war crimes tribunal. Afghanistan is one of the 110 countries that have ratified the Rome treaty which created the tribunal and are therefore legally bound by its provisions.

Under the treaty, the court can step in only when countries are unwilling or unable to dispense justice themselves for genocide, crimes against humanity or war crimes.

Ocampo said it has been “very difficult” to collect precise information about some of the alleged crimes, but his office has benefited from reports produced by non-governmental organizations who “arrived before us and provided information to us.”

He said he has requested information from human rights groups and groups inside Afghanistan as well as the Afghan government – and would be “very open” to information from foreign governments.

Taliban fighters have been accused of many brutal killings. There have also been some accusations of U.S. forces in Afghanistan using excessive force and torturing prisoners.

He confirmed that allegations involved both the Taliban and NATO forces.

The Clinton administration signed the Rome Treaty establishing the court, but the Bush administration rescinded the U.S. signature, arguing that the court could be used for frivolous or politically motivated prosecution of American troops.

Asked whether any NATO soldier is now a potential target of the court if he or she commits a war crime in a country under the court’s jurisdiction, he replied that NATO’s legal adviser was at the court’s headquarters in The Hague, Netherlands last week discussing this issue.

In the training NATO is doing, Ocampo said, it is explaining to colonels that in the future they could end up before the court if they commit atrocities.

“That is the most important (thing) because these massive atrocities are planned. So if those who are planning know they will be prosecuted, they will do something different,” he said.

reposted from the Huffington Post

** I’m twittering the hearing at: http://twitter.com/bechamilton for those who can’t catch the live webcast**

There is a hearing at the ICC this morning which may seem to be on an obscure legal point to the general public, but is actually of significance to the global system of justice established by the Rome Statute.

The hearing concerns a challenge to the admissibility of the case against DRC warlord, Germain Katanga.

Charges of war crimes and crimes against humanity, including murder and rape, were confirmed against Katanga by Pre-Trial Chamber I while I was at the court last year. His trial (jointly with Mathieu Ngudjolo Chui) is due to commence in September this year. However, in a motion filed in February, Katanga’s defense team (led by the impressive British barrister, David Hooper) are challenging whether the case against Katanga is admissible (re-stated in plain English: Does the ICC have the authority to hear this case or should his case be dealt with by the DRC’s judicial system?).

Under the system established by the Rome Statute, the ICC is a court of last resort. By design, the drafters of the Rome Statute decided that national judicial systems should have primacy, and only if these systems were unable or unwilling to conduct genuine investigations and prosecutions would the ICC come into play. In legal terms this is “the principle of complementarity.” In practical terms it means that the system established by the Rome Statute aims to encourage justice at the local level first - with justice being undertaken at the international legal only when the local system fails.

I personally think that complementarity it is a very positive design feature of the Rome Statute that is not nearly well enough understood by those who lump the ICC into the same category as the ad hoc tribunals for Rwanda and the former Yugoslavia (which do not operate on the complementarity principle). As ICC Prosecutor Luis Moreno Ocampo put it when he came to office: “The efficiency of the International Criminal Court should not be measured by the number of cases that reach the court or by the content of its decisions. Quite on the contrary, because of the exceptional character of this institution, the absence of trials led by this court as a consequence of the regular functioning of national institutions, would be its major success.”

So why then is the Prosecution fighting the Defense on the admissibility of this case before the ICC?

In essence it comes down to a fight over the meaning of the word “case.”  In this morning’s hearing I expect we will see the Prosecution argue that the case against Katanga was not being investigated or prosecuted by the DRC, and they will do so using the definition of the word “case” that Pre-Trial Chamber I established several years ago in Lubanga - Namely that a case involves the same person and same conduct:  “. . . for a case arising from an investigation of a situation to be inadmissible, national proceedings must encompass both the person and the conduct which is the subject of the case before the court.” (Decision of Pre-Trial Chamber I, 24 Feb. 2006, para 37). Therefore, the fact that the DRC were investigating Katanaga is not, in and of itself, enough to make the case inadmissible. It would only be inadmissible if they were also investigating him for the same conduct as in the ICC case.

By contrast, the Defense has argued in its submissions that this interpretation of the word “case” is too narrow. They also argue that the DRC authorities would have started looking at the conduct the ICC is now looking at if the ICC had not begun its investigation.

My view, for what it’s worth, is that given the Chamber’s definition of the word “case” in Lubanga, the Prosecution’s argument is solid as a matter of law. (Moreover, with my cynics hat on I have to wonder what’s the likelihood that a panel of Judges deciding they no longer have the power to adjudicate a case that they have already confirmed the charges in??).  However Hooper rarely makes a vacuous argument, and there are some policy consequences flowing from the Chamber’s initial decision to define the word “case” as narrowly as they did in Lubanga that Hooper is the first to really draw the Court’s attention to.

In short - for anyone interested in the balance of local vs. international justice, this hearing is worth paying attention to. You can see it livestreamed through the Court’s site from 10am (Dutch time) this morning in English or French.

re-posted by IJCentral from Bec Hamilton

Angelina Jolie’s visit to the Thomas Lubanga trial this week at the International Criminal Court made the celebrity gossip press yesterday and the twittersphere, as several tweets popped up on the International Criminal Court (ICC) feed on the IJCentral map.  With six children of her own, it’s good to see her using her celebrity power to bring much-needed attention to the crime of recruiting child soldiers.  Angelina is very committed to the ICC and its justice mandate, and is very informed about the Court and its activities.  Last year through the Jolie/Pitt Foundation she sponsored a day-long symposium at the Council on Foreign Relations in New York, bringing together several luminaries of the international justice world to discuss U.S. policy toward the ICC.

There is actually a great latent interest in U.S. policy toward the ICC.  After every screening on the festival circuit of The Reckoning: The Battle for the International Criminal Court the first question audiences ask is “What is Obama’s policy on the ICC?”  We’ve found that audiences come out of the film feeling energized and looking for a way to get involved with the international justice movement.  The national U.S. broadcast of The Reckoning on PBS on July 14 (on the P.O.V. series) will be the launching pad for No One Above the Law, a campaign to generate support for global rule of law, and reengage the U.S. with the international justice movement.

What was the UN Security Council (UNSC) thinking when it issued Resolution 1593 in 2005, referring the ongoing situation in Darfur to the Prosecutor of the International Criminal Court (ICC)?  Prosecutor Luis Moreno Ocampo took the case, conducted a 20-month investigation, came back with evidence, and requested arrest warrants - he did his job, in accordance with the justice mandate of the ICC.  At briefings he has subsequently given every 6 months, he has updated the UNSC on the progress of the investigation.  After obtaining arrest warrants from the ICC judges for Sudanese government Minister Ahmad Haroun, Janjaweed militia leader Ali Kushayb, and President Omar al-Bashir, he has consistently urged the UNSC and the international community represented at the UN, to execute the warrants. Instead the UNSC has balked at following through, and the African Union and the Arab League have rallied to support al-Bashir. 

Now there is even the possibility that the Obama administration might consider appeasing al-Bashir, a disgraceful approach if it happens (I suspect that Obama’s desire for dialogue with Iran, with its ties to Sudan, would have something to do with a rapprochement with al-Bashir).  So what did the UNSC and the international community expect when they asked the Prosecutor to investigate?  Did they have any plan for what to do if he came back with evidence of crimes against humanity?  They don’t seem to have thought that far ahead, or simply issued Resolution 1593 for political expediency.  But now they must act - we as global citizens must pressure our leaders to uphold the rule of law.  If you live in the U.S., write to your congressperson and President Obama and let them know you want the ICC warrants to be acted upon!  And citizens around the world, IJCentral members, send an email to your Minister of Foreign Affairs urging them to support global rule of law!

At a recent post-screening discussion of documentary film “The Reckoning: The Battle for the International Criminal Court”, a Darfuri journalist said that amongst Darfuris, the surprise is not that the ICC issued an arrest warrant for President al-Bashir charging him with crimes against humanity in Darfur, or that al-Bashir expelled 13 humanitarian groups from the Darfur Internally Displaced Persons (IDP) camps. The real surprise for Darfuris was that humanitarian organizations and the international community seemed taken by surprise by al-Bashir’s actions after the warrant was issued. As the Darfuri journalist, Tajeldin Abdalla Adam from Radio Dabanga said, ICC Prosecutor Luis Moreno Ocampo publicly requested the warrants; al-Bashir publicly said he would retaliate; so why wasn’t the international community making preparations to respond to this and to preemptively pressure the Sudanese regime to curtail its actions? Al-Bashir and his National Congress Party have been at it for 20 years, presiding over the tragedy of southern Sudan (2 million victims), arming and giving safe haven to the notorious Lord’s Resistance Army of Uganda (20,000 victims, 1.5 million displaced), and now Darfur (200,000 victims, over 2 million displaced). How long are we supposed to wait? It is time for the international community to definitively isolate President al-Bashir, and make it clear to any of his potential successors that the rogue state tactics of the National Congress Party regime will no longer be tolerated.

This Just in!

OSI Fellow and author Bec Hamilton has just announced via Enough Project’s website that she will be giving people a unique opportunity to ask questions about Darfur Policy to the policy makers themselves. She is currently in The Hague and will be interviewing former U.N. Special Representative on Sudan Jan Pronk and current ICC Prosecutor Luis Moreno Ocampo.  By submitting questions to her website you can have an opportunity to have your questions be answered on record.  Here is a bit of the post:

“Sitting talking with the former head of U.N. Peacekeeping in New York last week, it struck me that there are many citizen advocates out there who would relish the opportunity to quiz some of these people on Darfur policy, so I thought of one way to try and share the opportunity…

I recently set up a website where I will post upcoming interviews with people who are willing to take questions on the record from you. I’m in The Hague right now, and two of the people I have just spoken with agreed to take your questions: The former U.N. Special Representative on Sudan Jan Pronk and the ICC Prosecutor Luis Moreno Ocampo. If you would like to ask either of them a question about Darfur policy – past, present or future – go to the “Submit a Question” tab on the website.”

Take this opportunity and make yourself heard!

Much hay has been made since the ICC announced the arrest warrants for Sudanese President Omar al-Bashir, about the fact that the warrants were issued for crimes against humanity (5 counts) and war crimes (2) but not for genocide, the third category of crime that Prosecutor Luis Moreno Ocampo had included in his request for the warrants on July 14, 2008.  Many people that I respect in the international justice field have seized on this decision by the ICC judges as if it represents some kind of a failure for the Prosecutor because they thought he should not have accused al-Bashir with genocide in the first place, or because they thought it was too controversial, or are disappointed that the judges decided against issuing a warrant for genocide.  Aren’t these critics satisfied with crimes against humanity and war crimes?  Here’s the definition of crimes against humanity from the Rome Statue, the founding document of the ICC:

“Particularly odious offences in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings. They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. Murder, extermination, torture, rape, political, racial, or religious persecution and other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice. Isolated inhumane acts of this nature may constitute grave infringements of human rights, or depending on the circumstances, war crimes, but may fall short of falling into the category of crimes under discussion.”

Whatever the reasons, it really feels like splitting hairs, or finding the negative in what I see as huge positive step forward for humankind.  We finally have a Court that is capable of issuing arrest warrants for a sitting head of state - that’s amazing.  As former ICC Senior Trial Attorney says in the film “The Reckoning: The Battle for the International Criminal Court”, the Sudan/Darfur case is the kind of case the Court was made for, to hold leaders of countries to account when they commit war crimes, crimes against humanity and genocide.  As the Prosecutor said at the press conference last week announcing the warrants, the judges considered his requests and decided not to issue the warrant for genocide - this shows a well functioning and independent court, where the judges don’t simply rubber stamp what the Prosecutor gives them.  One of the judges had a dissenting opinion, but the other two decided against - the Prosecutor said he would review their arguments against and perhaps file an appeal.  So let’s focus on the positive aspects of what the ICC is doing, and provide constructive criticism when appropriate.

A genocide charge may not be hanging over al-Bashir’s head at the moment, but crimes against humanity and war crimes are, and let’s focus on that.

I am troubled by a persistent current of thought regarding ICC Prosecutor Luis Moreno Ocampo’s call for the arrest of the President of Sudan, Omar al-Bashir, on charges of war crimes, crimes against humanity and genocide.  Judges at the ICC are currently considering whether to issue the warrants, and based on leaked information that was published in the Washington Post (now taken down from their website after the ICC Public Information Office denied that warrants had been issued), I suspect that the judges will issue warrants charging al-Bashir with war crimes and crimes against humanity, but not genocide.  In any case, those who say that the warrants for al-Bashir should be suspended or retracted if they are issued are putting forth the worn-out argument that the international community is treading on thin ice and may provoke a violent backlash from al-Bashir, thereby derailing the peace process in Sudan (What peace process? Can they be serious?).  A good example of this is an article from the Guardian UK by Paul Adrian Raymond, quoting Alex De Waal of course, saying that al-Bashir will lash out, that Africa will retreat from international justice and become a “universal jurisdiction free zone”.  These arguments claiming that justice is an idealistic folly of human rights advocates are on the wrong side of history.  I was raised in Latin America in a time when dictators ruled and they were considered untouchable.  But civil society persevered, often mocked for their “futile efforts”, and now 30 years later, lo and behold, generals went to prison, dictators were put on trial, and Latin America is practically a dictator-free zone.  Justice played a crucial role in this transformation, and the establishment of the rule of law has become a given in most Latin American societies - witness the ongoing trial of ex-President Alberto Fujimori of Peru, now in the dock facing charges of human rights violations in his own country.  I think that eventually the rule of law will prevail in Africa as well, and if the ICC helps it get there, it will be fulfilling its justice mandate.  I don’t buy the Alex De Waal argument - I think that the majority of Africans want the rule of law to prevail, regardless of what their leaders may say.  Power doesn’t like limits, and the ICC is a threat to those who would prefer to operate with impunity, but I think that the impunity gap will be closed.  And as ICC Deputy Prosecutor Fatou Bensouda says, “Africa is at the vanguard of international justice”.  Africa is the continent with the highest number of countries that are members of the ICC, and it’s good to remember that Prosecutor Moreno Ocampo did not initiate the ICC cases in Africa - Uganda, the DR Congo and the Central African Republic are all ICC member states, and they referred themselves to the ICC, and the Sudan/Darfur case was referred to the ICC by the UN Security Council.  So these charges that the Prosecutor has targeted Africa have no foundation - these conflicts in Africa are real, and accountability must be pursued or there will never be peace.

It’s high time to make a concerted and sustained international military intervention to capture Joseph Kony and bring the nightmare of his crazed militia group, the Lord’s Resistance Army (LRA) to an end.  Today’s story in the New York Times, describing the atrocities inflicted on the peaceful rural people of the remote northeastern corner of the Congo, in and around Garamba National Park, is truly a horror story of innocent civilians being hacked to death and babies’ heads being torn off.  I hope no one is still talking about lifting the ICC warrants for the arrest of Kony and his top leaders.  It’s good that the US military has chosen to contribute tactical advice and information, as reported in the NY Times story, to help the Ugandan forces in their effort to rout and apprehend Kony, but the hapless Ugandan army will need more than advice and information to get the job done.  Even the “Kaibiles”, Guatemalan special forces sent after the LRA by the UN a couple of years ago, were decimated by Kony’s forces - let’s stop underestimating the LRA and send out some serious troop numbers, like the UN peacekeeping force sent into East Timor in 1999, to end his reign of terror once and for all, restore peace and stability, and put Kony on trial for war crimes at the ICC.