Legal Eye e-letter May 2011

Dear Friends,

Welcome to the May 2011 issue of Legal Eye on the ICC, a regular e-letter from the Women's Initiatives for Gender Justice. In the Legal Eye you will find summaries and gender analysis of judicial decisions and other legal developments at the International Criminal Court (ICC), and discussion of legal issues arising from victims' participation before the Court, particularly as these issues relate to the prosecution of gender-based crimes in each of the Situations under investigation by the ICC. The Court currently has six Situations under investigation: Uganda, the Democratic Republic of the Congo (DRC), Darfur, Sudan, the Central African Republic (CAR), Kenya and Libya.

In addition to the Legal Eye on the ICC, we also produce Women’s Voices, a regular e-letter providing updates and analysis on political developments, the pursuit of justice and accountability, the participation of women in peace talks and reconciliation efforts from the perspective of women's rights activists within armed conflict situations, specifically those countries under investigation by the ICC.

With both online e-letters we will also update you about the programmes, legal and political advocacy, campaigns, events, and publications of the Women's Initiatives.

More information about the work of Women's Initiatives for Gender Justice and previous issues of Women's Voices and the Legal Eye can be found on our website at www.iccwomen.org.

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Darfur :: Confirmation of charges decision in Banda and Jerbo case

On 7 March 2011, Pre-Trial Chamber I issued a decision on the confirmation of charges in the case against Abdallah Banda Abakaer Nourain (Banda) and Saleh Mohammed Jerbo Jamus (Jerbo).[1] Both Banda and Jerbo are Sudanese citizens of Zaghawa ethnicity.[2] Banda was the former military commander of the Justice and Equality Movement (JEM), before establishing a splinter group, the JEM Collective Leadership, along with Bahar Idriss Abu Garda (Abu Garda).[3] Jerbo was the Chief of Staff of the splinter group Sudanese Liberation Army Unity (SLA-Unity), which had broken away from the Sudanese Liberation Movement Army.[4]

Banda and Jerbo were each charged with three counts of war crimes in connection with an attack in September 2007 against the African Union Mission in Sudan (AMIS) peacekeeping mission based at the MGS Haskanita: (1) violence to life and attempted violence to life;[5] (2) intentionally directing attacks against personnel, installations, materials, units and vehicles involved in a peacekeeping mission;[6] and (3) pillaging.[7] No charges for gender-based crimes have been sought against any of the rebel leaders alleged to have been involved in the Haskanita attack. Both Banda and Jerbo were charged as co-perpetrators or indirect co-perpetrators under Article 25(3)(a). Both suspects voluntarily made their first appearance before the Court on 17 June 2010 in response to a Summons to Appear, which was issued on 27 August 2009.[8] They currently remain at liberty, pending their trial proceedings.

This is the second case regarding the attack against the MGS Haskanita to reach the confirmation of charges stage, the first being the case against Abu Garda. Abu Garda was also charged with the same three counts of war crimes in relation to his alleged involvement in the same attack against AMIS peacekeepers in September 2007. On 7 May 2009, Pre-Trial Chamber I issued a Summons to Appear for Abu Garda,[9] and he made his voluntary initial appearance before the Court on 18 May of that year. Following the confirmation of charges hearing against Abu Garda in October 2009, the Pre-Trial Chamber issued its decision on the confirmation of charges in February 2010.[10] The Pre-Trial Chamber declined to confirm any of the charges against Abu Garda, on the basis that the Prosecution had not submitted sufficient evidence to establish substantial grounds to believe that he was individually criminally responsible as a direct or indirect co-perpetrator for the attack on the MGS Haskanita.[11] This marked the first time in the Court's history that a Pre-Trial Chamber had declined to confirm any charges against an accused. The decision is analysed in detail in the Gender Report Card 2010.[12]

In the confirmation of charges decision in the case of Banda and Jerbo, the Pre-Trial Chamber had to decide whether the Prosecution had provided sufficient evidence to establish substantial grounds to believe both: (1) that the crimes had been committed; and (2) that Banda and Jerbo were individually criminally responsible for those acts.[13] The Defence did not contest any of the material facts alleged in the document containing the charges,[14] and both suspects voluntarily waived their right to be present at the confirmation of charges hearing.[15] During the confirmation of charges hearing, which was held on 8 December 2010, the Defence did not present any evidence and did not challenge the evidence presented by the Prosecutor.[16]

The Pre-Trial Chamber examined the role played by the AMIS African Union peacekeeping mission, and concluded that there were substantial grounds to believe that AMIS troops were involved in a peacekeeping mission, that they were impartial in their dealings with all parties to the conflict and were not permitted to use force except in self-defence.[17] As a result, the Pre-Trial Chamber held that there were substantial grounds to believe that members of the peacekeeping mission took no direct part in hostilities and were therefore entitled to the protections afforded to civilians under international humanitarian law.[18] Having examined the objective and subjective elements of the offence of intentionally directing attacks against peacekeepers under Article 8(2)(e)(iii) of the Statute, the Pre-Trial Chamber concluded that the Prosecution had presented sufficient evidence to establish substantial grounds to believe that this crime had been committed.[19] In relation to the war crime of violence to life, the Chamber was satisfied that there were substantial grounds to believe that both the objective elements of the crime (the killing of twelve AMIS personnel and attempted killing and serious injury of an additional eight AMIS personnel) and the subjective element of intent to cause death or serious injury had been proven for the purposes of confirming the charge against Banda and Jerbo.[20] The final charge of pillaging was also confirmed by the Pre-Trial Chamber.[21] The Chamber also confirmed that there were substantial grounds to believe that Banda and Jerbo were individually criminally responsible for these three crimes as co-perpetrators under Article 25(3)(a) of the Statute.[22]

The Defence chose not to lodge an appeal against the confirmation of charges decision.[23] On 16 March, Trial Chamber IV was constituted to hear the case against Banda and Jerbo.[24] It will be composed of Presiding Judge Joyce Aluoch (Kenya), Judge Fatoumata Dembele Diarra (Mali) and Judge Silvia Fernández de Gurmendi (Argentina).[25] This will be the second Trial Chamber composed exclusively of female judges, along with Trial Chamber III,[26] which is presiding over the Bemba trial. At the time of writing, a date for the start of trial has not yet been set.

■ Read the Pre-Trial Chamber's decision on the confirmation of charges.

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Libya :: Referral of the Situation to the ICC

On 26 February 2011, following the violent repression of the demonstrations that started on 15 February in Libya and the ensuing international pressure to take action, the United Nations Security Council, acting under Chapter VII of the UN Charter, unanimously voted in favour of Security Council Resolution 1970,[27] which referred the Situation to the ICC.[28] The referral was made pursuant to Article 13(b) of the Rome Statute, which permits the Security Council to refer a situation to the Prosecutor where genocide, crimes against humanity and/or war crimes 'appear to have been committed' in that State. The Libya referral is notable for the speed with which the Security Council acted; it was issued within weeks of the first report of alleged unlawful attacks by state security forces on anti-government protestors. This is the second referral of a situation to the ICC by the Security Council, the first being the referral of the Situation in Darfur in March 2005.[29]

On 3 March 2011, the Prosecutor held a press conference, announcing that he was opening an investigation into allegations of crimes against humanity in Libya.[30] Resolution 1970 provides the ICC with jurisdiction over the Situation in Libya as of 15 February 2011.[31] The Prosecutor identified as potential suspects authorities with control over the security forces, such as Muammar Qadhafi, and his inner circle, including some of his sons, and other persons with de facto and formal authority.[32] He warned that if forces under their command and control commit crimes, these authorities could be held criminally responsible under the Rome Statute. He also reiterated the Court's impartiality, indicating that the actions of opposition forces would also be closely examined during the investigation.[33] The Situation in Libya has been assigned to Pre-Trial Chamber I, composed of Presiding Judge Cuno Tarfusser (Italy), Judge Sylvia Steiner (Brazil) who also serves on the Bemba Trial Chamber, and Judge Sanji Mmasenono Monageng (Botswana). The same Pre-Trial Chamber is assigned to the DRC and Sudan Situations. Prior to the assignment of Libya to Pre-Trial Chamber I, Judge Cuno Tarfusser in an interview with an Italian radio station on 25 February stated that the most likely charges Qadhafi could face in The Hague are for crimes against humanity.[34]

On 28 February 2011, the Women's Initiatives for Gender Justice issued a statement concerning the referral of the Situation in Libya.[35] In the Statement, the Women's Initiatives welcomed the Resolution 'as a positive signal that the Security Council will not accept gross and systemic violations of human rights in Libya and that they believe Colonel Qadhafi and others alleged to have ordered or committed these acts should be held accountable'. The Women's Initiatives also urged the Security Council not to leave behind other countries and territories where people are similarly affected by violence such as Chechnya, Afghanistan, Burma and Palestine.

On 17 March 2011, the Security Council issued Resolution 1973 approving a No-Fly Zone over Libya, authorising 'all necessary measures' to protect civilians while 'excluding a foreign occupation force of any form on any part of Libyan territory'.[36] This was agreed upon by vote of ten in favour with five abstentions.[37] On 4 May 2011, the Prosecutor informed the UN Security Council that in a few weeks he would be requesting the judges of the ICC to issue arrest warrants against three individuals for crimes against humanity committed in Libya since 15 February 2011.[38]

There have been recent reports by media sources as well as aid agencies that Colonel Qadhafi's forces have been responsible for instances of sexual violence in Libya. The US ambassador to the UN, Susan Rice, made the claim that Qadhafi was supplying his forces with Viagra to encourage mass rape.[39] Doctors in Ajbadiya have similarly stated that they found Viagra tablets and condoms in the pockets of killed pro-Qadhafi fighters, and have treated many female rape survivors.[40] The most available specific information to date relates to Iman al-Obeidi who burst into a Tripoli hotel filled with foreign journalists and claimed she had been gang-raped by pro-government forces.[41] British aid agency Save the Children has also alleged that children as young as eight have been sexually assaulted.[42] In addition, the Al Jazeera news agency has reported that many women have suffered sexual violence at the hands of Colonel Qadhafi's troops.[43]

Currently, there have not been any allegations of gender-based crimes committed by rebel forces.

The Women's Initiatives continues to closely monitor the Situation in Libya and the activities of all actors in this conflict.

■ Read the Statement of the Women's Initiatives for Gender Justice on the referral of the Situation in Libya.
■ Read the Security Council Resolutions 1970 and 1973.

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DRC :: Trial Chamber I rejects Defence abuse of process claims in Lubanga case

On 2 March 2011, in the case The Prosecutor v. Thomas Lubanga Dyilo, Trial Chamber I issued its decision on the confidential Defence abuse of process application filed on 10 December 2010. In its decision, the Trial Chamber refused to permanently stay the proceedings and effect the release of the accused.[44]

Thomas Lubanga Dyilo (Lubanga) is the former President of the Union des patriotes Congolais (UPC) and Commander-in-Chief of the Forces patriotiques pour la libération du Congo (FPLC). He was charged with six counts of war crimes arising out of the alleged UPC practice of conscripting children under the age of 15 into active military participation. Significantly, no gender-based crimes were included in the charges against Lubanga, despite information that such crimes, including the rape of women and young girls, were committed by UPC soldiers.[45] Lubanga's trial began on 7 January 2009, but has been stayed twice by the Trial Chamber, first in June 2008 related to the Prosecution's failure to disclose potentially exculpatory evidence and again in July 2010 for the Prosecution's refusal to follow Trial Chamber I's disclosure order regarding the identity of an intermediary. The procedural history of the Lubanga trial is covered in depth in the Gender Report Card 2008, 2009 and 2010.[46]

The Defence's primary allegation in its abuse of process filing involved the role of intermediaries who, acting on behalf of the Prosecution, were alleged to have encouraged witnesses to fabricate testimony regarding both their identities and their military involvement, resulting in serious breaches of the accused's right to a fair trial. Intermediaries are individuals who have acted on behalf of the Court, in this instance by assisting in contacting potential witnesses for the Prosecution.

The role of intermediaries has been at issue in the Lubanga trial since the opening of the Prosecution's case in January 2009, when its first witness, an alleged former child soldier,[47] recanted his testimony and stated that he had been instructed on the contents of his testimony by an NGO for troubled children, specifically referencing Intermediary 321.[48] Two weeks later, he again reversed his testimony, stating that 'he had not been persuaded to tell lies'.[49] The Chamber accepted his final position, which was the same as his original account about his time on the battlefield and in training camps. Another Prosecution witness, also an alleged former child soldier, made similar allegations while testifying in June 2009, this time referring to Intermediary 316.[50] In January 2010, the Defence opened its case, focusing on the allegations of evidence fabrication by Intermediaries 321 and 316. Then, in May 2010, the Defence indicated to Trial Chamber I that it intended to file an application on abuse of process.[51]

In its abuse of process application,[52] the Defence argued for a permanent stay of proceedings and immediate release of the accused as a fair trial had 'been rendered impossible'.[53] Its claim was based on five elements: (1) the role of four intermediaries who acted for the Prosecution in producing 'mendacious' testimony; (2) the Prosecution's negligence in failing to appropriately investigate and verify evidence introduced at trial; (3) the Prosecution's purposeful failure to discharge its disclosure obligations; (4) collaboration between victims in usurping the identities of witnesses; and (5) failure by the Prosecution to act fairly and impartially in its treatment of the accused.[54]

In reaching its decision, refusing to order a stay based on the Defence's abuse of process claims, Trial Chamber I adopted the Appeals Chamber's standards for evaluating abuse of process proceedings as set forth in its judgement of 3 October 2006.[55] For each of the Defence's five allegations, the Trial Chamber determined: (1) whether it would be 'odious' or 'repugnant' to the administration of justice to allow the proceedings to continue; or (2) whether the accused's rights have been breached to the extent that a fair trial has been rendered impossible.[56]

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The role of intermediaries in producing 'mendacious' testimony

As described by the Chamber in its decision, the role of intermediaries in manipulating witnesses and fabricating evidence was the central line of the Defence argument. The Defence claimed that Intermediaries 316, 321, 143, and 31 encouraged witnesses to fabricate their identities and their alleged military involvement, and that the Prosecution knew or should have known that the intermediaries were doing so but continued to work with them.[57] The Chamber underscored that, as the issue of intermediaries had been central to the accused's defence since January 2010, it had issued several comprehensive decisions in which it ensured the Defence an opportunity to adequately address the issue during trial.[58] Under these circumstances, the Chamber found that it had provided the Defence with sufficient opportunities to address the evidence, and that therefore the accused's right to a fair trial had not been breached.[59] Trial Chamber I thus found that it would be neither odious nor repugnant to continue the trial, and echoing the Appeals Chamber judgement on the most recent stay of proceedings, that even if claims of prosecutorial misconduct were substantiated, a stay would constitute a disproportionate remedy.[60]

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The Prosecution's failure to verify evidence

The Defence further claimed that the Prosecution was negligent in its investigations, refusing to pursue allegations of fabricated evidence or to verify the identities and statuses of its witnesses.[61] In its response, the Prosecution attributed its decision to rely on intermediaries for contacting potential witnesses to the difficult circumstances it faced in conducting investigations in the DRC and in Ituri in particular.[62] The Chamber found that even considering the Defence's factual submissions at their highest, none of the conduct attributed to the Prosecution could be characterised as illegal or as conduct that would render it odious or repugnant to continue the trial.[63] Significantly, the Chamber determined that, if proven, the Prosecution's failure to ensure that the Chamber received reliable evidence, and specifically that it 'deliberately avoided the process of verification',[64] may affect the Chamber's subsequent ruling on that evidence.

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The Prosecution's failure to disclose

The Prosecution's disclosure irregularities have long been at issue in this case,[65] and the Defence included them as an allegation in its abuse of process application. Trial Chamber I referred to its many decisions on this issue,[66] including its 'Decision on Intermediaries', to hold that the Prosecution's disclosure irregularities did not render continuation of the trial odious or repugnant, and that individual breaches of the accused's right to disclosure did not constitute an unfair trial. Recalling its ruling on the previous stay of proceedings, the Chamber reserved its right to impose sanctions if deliberate late disclosure on the part of the Prosecutor is proven.[67]

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Collaboration between victims and the Prosecution's failure to remain impartial

Trial Chamber I also held it 'wholly untenable' to find that a conspiracy between victims, even with respect to the alleged fabrication of false evidence and the use of false identities, would render continuation of the trial odious, repugnant, or constitute any abrogation of the accused's rights.[68] The Defence further alleged a lack of impartiality toward the accused on the part of the Prosecution, relying on the statements made in a March 2010 interview with Ms Le Fraper du Hellen by lubangatrial.org, and a novel written by a former consultant for the Office of the Prosecutor. The Chamber noted that it had already issued a decision on the propriety of out-of-court statements.[69] It held that neither would play any role in its determination of the substantive issues in the case and therefore did not meet the threshold for considering a stay of the proceedings.[70]

Throughout its decision, Trial Chamber I closely adhered to the Appeals Chamber judgement reversing its July 2010 stay of proceedings in consistently concluding that the alleged irregularities did not warrant a 'drastic' remedy. In response to each of the five Defence contentions, Trial Chamber I came to the same conclusion, with minor variations on the following language:

Accordingly, here it is also unnecessary, at this point, for the Chamber to reach any decision as to the various factual issues raised on this aspect of the application: accepting, for the sake of argument, the defence submissions at their highest, this is not a situation in which, as an exercise of judgment, a stay of proceedings is called for. The alleged failings on the part of the prosecution can be addressed as part of the ongoing trial process.[71]

Significantly, the Trial Chamber repeatedly reasserted its right to reserve judgement on the factual allegations set forth in the Defence submissions, all of which would be determined upon further examination of the evidence. Thus, the Trial Chamber's decision denying the requested stay of proceedings remains a limited ruling that reaffirms the Appeals Chamber's characterisation of the use of stays as both 'drastic' and 'exceptional', while leaving the door open for its future rulings on the allegedly fabricated evidence proffered by the Prosecution.

■ Read the Trial Chamber's decision on the Defence abuse of process application.
■ Read more about the role of Prosecution intermediaries in the Lubanga trial in the Gender Report Card 2010.

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Footnotes

In this issue

■ Darfur, Sudan
Confirmation of charges decision in Banda and Jerbo case

■ Libya
Referral of the Situation to the ICC

■ Democratic Republic of the Congo
Trial Chamber I rejects Defence abuse of process claims in Lubanga case

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