IJCentral: International Justice Central

** 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

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!

Justice and accountability can be a slow process, but it this case a dauntless lawyer is helping to make it happen.

November 1989. The cold war was in its last throws.  The Berlin wall had just fallen.  It was the first year of Bush Sr.‘s presidency.  To the south In San Salvador, the capital of El Salvador, the guerillas of the FMLN were making what would be their final assault against the Salvadorian Army, and the military struck back, but not at the armed enemy.  The Salvadoran military thought they could use the chaotic moment to rid themselves of a thorn in their side; a group of intellectuals and educators who were teaching democracy.  On the night of November 16th, 1989 uniformed troops armed with high power rifles murdered six Jesuit priests, their housekeeper and her daughter.  This same Salvadorian military had received a billion dollars in US aid, much of it military, and Dick Cheney, then Sec. of Defense, denied that any Salvadoran military personnel were involved in the killings.  Flash forward 20 years.

Last night Jim Goldston, Open Society Justice Initiative, recounted those days.  He was just out of law school and heading up the Americas Watch Office in San Salvador. Joining him on a panel at Open Society Institute were Robert Varenik, and Aryeh Neier, both of OSI, and Almudena Bernabeu, a brilliant young lawyer, working with The Center for Justice and Accountability,  who is spearheading an international case against the murderers. 

At the end of the civil war there was a UN sponsored Truth Commission. This Commission found that the vast majority of many hundreds of assassinations and disappearances were carried out by the Military, yet over all these years there have been only 7 convictions, the highest ranking a Colonel.  Following the revelations of the Truth Commission the government declared a general amnesty, effectively deflecting all future prosecutions.  When international pressure demanded some action, as in the case of the murdered priests, then a commission of inquiry coached witnesses to never mention higher ups, and even tampered with physical evidence, changing the barrels of guns that had been used in the crime. But family members, victims, and civil society continued to collect evidence in the case, and over the years the preponderance of evidence demanded action.  In El salvador a case against the highest ranking officials involved in the Jesuit murders went all the way to the Supreme Court.  The Court ruled that certain crimes against humanity were exempt from the amnesty and could be tried, but that a lower judge would have to declare them as “crimes against humanity.”  The lower judge refused, calling the murders a “common crime.”  So with all national remedies exhausted Almudena Bernabeu went international.

In 2006, working with the families of the Jesuit Priests, and the San Francisco based Center for Justice and Accountability (www.cja.org), Bernabeu took the case to the Audiencia Nacional, the Spanish High Court.  This is the same Court that brought Pinochet to bay, and is hearing the case of Guatemalan genocide.  And just last month, on January 13, 2009 the Spanish High Court agreed to hear the case against 14 Salvadoran defendants including General Ponce, former chief of the Joint General Staff of the Salvadoran Armed Forces and General Rafael Humberto Larios, Minister of Defense at the time, for crimes against humanity and terrorism. The judge may also indict former President Cristiani if the evidence warrants.

After 20 years, impunity in El Salvador may be coming to an end.

Lydia Polgreen’s article in the NY Times today about the split in the forces of Congolese militia leader Laurent Nkunda is a good example of how the ICC is creating strains amongst leaders of militia forces.  It’s interesting that some of Nkunda’s cohort are talking about turning Jean Bosco Ntaganda (aka The Terminator) over to the ICC - there is an outstanding ICC arrest warrant for Ntaganda, and one can’t help but wonder if this sudden desire by Nkunda to comply with the rule of law isn’t influenced by the likeliness of an ICC warrant being issued against him as well - he may be trying to rack up some points in the positive column with the international community.