Legal Eye e-letter July 2011

Dear Friends,

Welcome to the July 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.

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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Libya :: Pre-Trial Chamber I issues Arrest Warrants

Following the Prosecutor's 16 May 2011 application[1] in the Libya Situation for Arrest Warrants against Muammar Mohammed Abu Minyar Gaddafi (Gaddafi), Saif Al-Islam Gaddafi (Saif Al-Islam) and Abdullah Al-Senussi (Al-Senussi), Pre-Trial Chamber I issued Arrest Warrants for all three individuals on 27 June 2011.[2] The Situation in Libya arose out of the violent repression of demonstrations against Gadaffi's regime that started on 15 February 2011. The Situation was referred to the ICC on 26 February 2011 when the United Nations Security Council, acting under Chapter VII of the UN Charter, unanimously voted in favour of Resolution 1970.[3]

Having analysed the information submitted to it by the Prosecutor, Pre-Trial Chamber I found that there were reasonable grounds to believe that murder as a crime against humanity was committed from 15 February until at least 25 February 2011 and that persecution on political grounds as a crime against humanity was committed from 15 February until at least 28 February 2011 by security forces as part of the attack against the civilian population.[4] The Chamber found reasonable grounds to believe that Gaddafi and Saif Al-Islam were mutually responsible as indirect co-perpetrators under Article 25(3)(a) of the Rome Statute and that Al-Senussi was responsible as a perpetrator under Article 25(3)(a). Accordingly, the Chamber issued Arrest Warrants for Gaddafi, Saif Al-Islam and Al-Senussi for murder and persecution on political grounds as crimes against humanity.

There are continued media reports regarding possible cases of rape and other forms of sexual violence, as well as public statements to the media by the Prosecutor about the alleged use of Viagra by Gaddafi's troops. However, the Prosecutor did not request such charges in his application for Arrest Warrants against Gaddafi, Saif Al-Islam and Al-Senussi. In an interview with the BBC on 8 June 2011, the Prosecutor stated that the investigations into allegations of rape were ongoing and that the charge of rape might be added to the case following the issuance of Arrest Warrants.[5]

■ Read the Pre-Trial Chamber's decision issuing Arrest Warrants for Gaddafi, Saif Al-Islam and Al-Senussi.

■ Read the Prosecutor's application for Arrest Warrants for Gaddafi, Saif Al-Islam and Al-Senussi.

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Kenya :: Pre-Trial Chamber II issues Summonses to Appear for six individuals

On 8 March 2011, Pre-Trial Chamber II handed down two decisions[6] in the Kenya Situation on the applications submitted by the Prosecutor on 15 December 2010[7] to issue Summonses to Appear for William Samoei Ruto (Ruto), Henry Kiprono Kosgey (Kosgey), Joshua Arap Sang (Sang), as well as for Francis Kirimi Muthaura (Muthaura), Uhuru Muigai Kenyatta (Kenyatta) and Mohammed Hussein Ali (Ali). The Kenya Situation arose out of the violence surrounding the Kenyan national elections held on 27 December 2007. It is the first Situation before the ICC in which the Prosecutor has used his proprio motu powers under Article 15 of the Rome Statute to start an investigation on his own initiative. The Pre-Trial Chamber had authorised the Prosecutor on 31 March 2010 to proceed with an investigation in Kenya.[8] Judge Kaul dissented on both issuances of the Summonses to Appear.[9] The initial appearance of Ruto, Kosgey and Sang was held on 7 April 2011; that of Muthaura, Kenyatta and Ali on 8 April 2011. The confirmation of charges hearing in the cases is scheduled for 1 September and 21 September respectively.

Summonses to appear for Ruto, Kosgey and Sang

In his 15 December 2010 application, the Prosecutor had sought charges against Ruto, Kosgey and Sang for four counts of crimes against humanity, namely: murder;[10] deportation or forcible transfer of population;[11] torture;[12] and persecution on political grounds.[13] Having analysed the information submitted to it by the Prosecutor, Pre-Trial Chamber II found that there were reasonable grounds to believe murder, deportation or forcible transfer of population and persecution as crimes against humanity were committed.[14] The Chamber was not satisfied that there were reasonable grounds to believe torture as a crime against humanity was committed.[15]

The Chamber found there were reasonable grounds to believe that Ruto and Kosgey were criminally responsible as indirect co-perpetrators under Article 25(3)(a) and that Sang was criminally responsible under Article 25(3)(d).[16] Accordingly, the Chamber issued Summonses to Appear for Ruto, Kosgey and Sang for murder, forcible transfer of population and persecution as crimes against humanity.

Summonses to appear for Muthaura, Kenyatta and Ali

In the 15 December 2010 application, the Prosecutor had sought charges against Muthaura, Kenyatta and Ali for five counts of crimes against humanity, namely: murder;[17] deportation or forcible transfer of population;[18] rape and other forms of sexual violence;[19] other inhumane acts;[20] and persecution on political grounds.[21] In his application, the Prosecutor linked the crimes to attacks in very specific locations, including Naivasha, Nakuru, Kisumu and Kibera. Having analysed the information submitted to it by the Prosecutor, Pre-Trial Chamber II found there were reasonable grounds to believe that murder and forcible transfer of population as crimes against humanity were committed. The Chamber also found there were reasonable grounds to believe that rape as a crime against humanity was committed as part of the Nakuru attack. However, it found that the Prosecutor failed to provide evidence substantiating the claim that rape was committed also as part of the attack in Naivasha.[22] Furthermore, with regard to the alleged inactivity of the Kenyan Police Forces during the attack on Nakuru and Naivasha, the Chamber noted, without elaborating on its findings, that the Prosecutor submitted that 'the attack occurred pursuant to an "organisational" policy, without alleging the existence of a State policy by abstention'.[23]

The charge of other forms of sexual violence in the Prosecutor's application for Summonses to Appear was based on acts of forcible circumcision of Luo men. In a worrying move, the Chamber did not consider these acts to be of a 'sexual nature' and found that these should in fact be classified as 'other inhumane acts'.[24] The Chamber also found there were reasonable grounds to believe that persecution as a crime against humanity was committed.[25]

Although it found there were reasonable grounds to believe deaths, injuries and rapes were committed in Kisumu and Kibera, the Chamber found that the Prosecutor 'failed to provide an accurate factual and legal submission … to examine whether the acts of violence were part of an attack pursuant to or in furtherance of a State policy'.[26] In addition, the Chamber found that the Prosecutor failed to provide material to establish that there were reasonable grounds to believe that the events in Kisumu and/or Kibera could be attributed to Muthaura, Kenyatta and/or Ali.[27]

The Chamber found that there were reasonable grounds to believe that Kenyatta and Muthaura were criminally responsible as indirect co-perpetrators under Article 25(3)(a) and that Ali contributed 'in any other way' under Article 25(3)(d).[28] Accordingly, the Chamber issued Summonses to Appear for Muthaura, Kenyatta and Ali for murder, forcible transfer of population and persecution as crimes against humanity, only with respect to crimes committed in Nakuru and Naivasha, and for rape as a crime against humanity only with respect to crimes committed in Nakuru. The Chamber declined to issue Summonses to Appear for the alleged crimes committed in Kisumu and Kibera.

On 14 March 2011, the Prosecution sought leave to appeal two issues in the Pre-Trial Chamber's decision issuing Summonses to Appear for Muthaura, Kenyatta and Ali. The first issue related to the Chamber's interpretation of the organisational requirement of crimes against humanity; the other issue related to the Chamber's finding that forcible circumcision of adult males does not constitute 'other forms of sexual violence'.[29] On 1 April 2011,[30] Single Judge Trendafilova rejected the Prosecution's request for leave to appeal on the grounds that neither issue constituted an 'appealable issue'. With regards to the crime of forcible circumcision, she noted, however, that this does not preclude the Prosecutor from bringing charges of other forms of sexual violence at a later point in the proceedings.[31] Pursuant to Article 61(4) the Prosecutor may amend or withdraw charges prior to the confirmation of charges hearing.

In an interview with IRIN on 25 April 2011, Brigid Inder, Executive Director of the Women's Initiatives for Gender Justice, expressed concern about the reclassification of charges of forcible circumcision by the Pre-Trial Chamber. 'In our view, what makes these acts a form of sexual violence is the force and the coercive environment, as well as the intention and purpose of the acts,' she said. 'It isn't simply about the injuries and suffering, although clearly these are also aspects of these crimes. But the forced circumcision of Luo men … has both political and ethnic significance in Kenya and therefore has a specific meaning. In this instance, it was intended as an expression of political and ethnic domination by one group over the other and was intended to diminish the cultural identity of Luo men.'[32] She added that the Office of the Prosecutor (OTP) had failed to stress these points in their application for Summonses to Appear, merely stating that these acts were of a sexual nature, without elaborating on this point. The Women's Initiatives has called on the OTP to properly argue the case for charging forced circumcision as a form of sexual violence.

The Women's Initiatives has previously expressed concern about the Prosecution's apparent difficulty in presenting evidence of gender-based crimes robust enough to survive arrest warrant and confirmation stages of proceedings. As an example, the charge of 'other forms of sexual violence', sought by the Prosecutor also in the Bemba case, has never been successfully sustained by the OTP beyond the arrest warrant/summons to appear stage of proceedings.

■ Read the press interview with Brigid Inder here.

■ Read the Pre-Trial Chamber's decisions issuing the Summonses to Appear for Ruto, Kosgey and Sang, and for Muthaura, Kenyatta and Ali.

■ Read the Pre-Trial Chamber's decision rejecting the Prosecution's leave to appeal.

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Kenya :: Kenyan Government unsuccessfully challenges the admissibility of cases

On 30 March 2011, the Kenyan Government filed a legal challenge to the admissibility of the cases against Ruto, Kosgey and Sang, and against Muthaura, Kenyatta and Ali under Article 19 of the Statute.[33] Article 19 allows a state that would normally have jurisdiction over the crimes in question to argue that the case is inadmissible before the ICC because it is investigating or prosecuting the case itself. This is essentially the principle of complementarity, which means that the ICC will only investigate or prosecute a case if the national authorities are inactive or are unable or unwilling to do so. This is the first time the admissibility of a case has been challenged by a State Party. The Kenyan Government claimed that the cases should be ruled inadmissible as it had recently implemented substantial judicial and constitutional reforms and that it intended to carry out its own investigations into the post-election violence which occurred in 2007 and 2008. The Government acknowledged that no national proceedings were currently under way against the six individuals named as suspects by the ICC, but explained that its strategy was to follow a 'bottom-up' approach by concentrating its initial investigations and prosecutions on lower-level perpetrators first, before moving on to higher-level suspects.[34]

On 30 May 2011, the Pre-Trial Chamber rejected the Kenyan Government's challenge to the admissibility of the two cases.[35] The Chamber welcomed the judicial reforms introduced by the Government and the state's apparent willingness to substantively investigate the post-election violence. However, the Court had previously held that, to make a case inadmissible, the national proceedings must encompass the same conduct committed by the same person or persons as the proceedings before the ICC (the 'same person/same conduct' test).[36] The Pre-Trial Chamber held that the acknowledgement by the Kenyan Government that its ongoing investigations were focused on lower-level perpetrators was a clear indication that there were in fact no proceedings currently under way against the six suspects before the Court.[37] On that basis, the Chamber concluded that the inactivity on the part of the Kenyan Government in relation to the investigation or prosecution of these six individuals rendered the two cases admissible.[38]

On 6 June 2011, the Kenyan Government filed an appeal against the decision of the Pre-Trial Chamber.[39] In its document in support of the appeal, filed on 20 June 2011,[40] the Government of Kenya argued that the Pre-Trial Chamber erred in finding that there were at present no investigations against the six individuals. The Government stressed that the Chamber too hastily rejected the admissibility challenge without taking into account the additional information the Government intended to submit during an oral hearing. The Government also argued that the Chamber failed to address the legal arguments put forward by the Government in its admissibility challenge regarding the correctness of the 'same person/same conduct' test. At the time of writing, no decision has yet been issued on this appeal.

■ Read the Kenyan Government's admissibility challenge in the two cases.

■ Read the Pre-Trial Chamber's decision rejecting the admissibility challenge by the Kenyan Government in the case of Ruto, Kosgey and Sang and in the case of Muthaura, Kenyatta and Ali.

■ For more information about the Kenya Situation, see the Gender Report Card 2010.

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DRC :: Request for observations on offences against the administration of justice in Lubanga case

On 29 March 2011, in The Prosecutor v. Thomas Lubanga Dyilo, Trial Chamber I requested observations from the parties and participants on the procedure to be adopted for Article 70 of the Rome Statute.[41] Article 70 concerns offences against the administration of justice; in particular subsection (1)(c) covers 'corruptly influencing a witness, obstructing or interfering with the attendance or testimony of a witness, retaliating against a witness for giving testimony or destroying, tampering with or interfering with the collection of evidence'.[42] The request came after an inquiry by the Victims and Witnesses Unit (VWU) raised the issue of direct and indirect threats administered by victims against defence witnesses in the proceedings. Details of the VWU inquiry have not been made public. The Chamber ordered the parties and participants to submit observations on the appropriate organ of the Court, or external body, to conduct an Article 70 investigation. The Prosecution, Defence and the Legal Representatives of Victims provided their observations on 1 April 2011. This is the first time Article 70 has been engaged in a proceeding at the ICC.

The Legal Representatives of Victims (LRV)[43] were the first to respond with comprehensive observations outlining the various options available to the Chamber. In regards to the Court's own jurisdiction on the matter, they noted that the Chamber may exercise jurisdiction over the matter or refer it to an appropriate State Party, taking into consideration its competence and experience in breaches of this kind. Should the Court decide to delegate its authority over the matter to a State Party, the filing suggested that the Court carefully consider the factors contained in Rule 162(2)[44] as well as the potential impact of such delegation on victims and witnesses. The LRV submission also suggested following a procedure similar to that of the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) to address investigations into this kind of breach, which in contrast to the statutory framework of the ICC, provide that the Chamber may ask the Registrar to seek an amicus curiae from an independent party or body. This option would preclude any potential conflict of interest within the Office of the Prosecutor.

In its observations,[45] the Prosecution asserted that it was the only organ of the Court authorised by the Statute to conduct investigations, including for an Article 70 breach as explicitly foreseen in Rule 165 of the Rules and Regulations of the Court. Regarding any role to be played by the Registry, the Prosecution emphasised that its only responsibilities are over 'non-judicial aspects of the administration and servicing of the court'.[46] It also asserted that in the event a conflict of interest is found, it could create internal divisions within the Office for the purpose of the Article 70 investigation.

The Defence[47] recognised that conducting investigations, including into offences to the administration of justice, falls within the competence of the Office of the Prosecutor, as stated in Rules 163 and 165. However, it stressed the potential conflict of interest and the need for an independent body to conduct an Article 70 investigation given that the investigation requires that Defence witnesses be interviewed by the Prosecution, an organ adversarial to the position of the Defence. The Defence maintained that such an investigation could impact the impartiality and fairness of the proceedings. Therefore, it reiterated the suggestion that an independent body should investigate any potential offence, analogous to the procedures contemplated by the ad hoc tribunals.

At the time of writing, the issue is awaiting a decision by the Trial Chamber.

■ Read the observations by the Legal Representatives of Victims, the Prosecution, and the Defence.

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DRC :: Detained defence witnesses in Katanga/Ngudjolo case seek asylum

On 9 June 2011, Trial Chamber II issued a decision suspending the immediate return of three detained witnesses in the Katanga/Ngudjolo case to the DRC, pending their political asylum applications in The Netherlands.[48] All three, military colleagues of the accused, were detained in the Makala prison in Kinshasa and were transferred to The Hague to testify pursuant to Article 93 of the Rome Statute and Rule 192 of the Rules of Procedure and Evidence. These regulations create a procedural framework that directs the Registrar to manage the transfer and custody of detained witnesses and return them following their testimony. This is the first time a witness before the ICC has applied for asylum.

In the decision, the Chamber analysed the precise scope of its duty to protect witnesses under Article 68 of the Rome Statute, drawing distinctions between that responsibility and the Court's duty to protect them against human rights violations in general.[49] It determined that Article 68 grants only a narrow mandate to 'prevent the risk witnesses incur on account of their cooperation with the Court'.[50] However, the Chamber acknowledged its obligation under internationally recognised human rights laws to honour the detained witnesses' right to seek and be granted asylum, and concluded that it could not interfere with that right. Specifically, it recognised the principle of non-refoulement, the protection of refugees from being returned to a place in which their lives or freedoms could be threatened.[51] The Court further found that it was not under any obligation to assess the risks of persecution faced by witnesses seeking asylum, nor was non-refoulement strictly applicable as the Court has no territory in which to maintain jurisdiction over witnesses. Nevertheless, it held that it could not disregard human rights law that provides for open recourse to asylum proceedings.[52]

The Chamber also ordered the Registry to authorise contact between the detained witnesses and their Dutch asylum counsel, which had been previously forbidden by the Registry pursuant to a pre-existing agreement with Congolese authorities, from whom prior authorisation was needed for all contact with individuals outside the detention centre.[53] In light of the asylum applications, however, the Chamber found that 'this situation cannot continue' and ordered that Dutch counsel have access to the witnesses as soon as possible. The decision also rejected the application of the witnesses' Dutch attorneys to file an amicus curiae brief. Because the application for asylum was already before the Dutch authorities, the Chamber did not find that an amicus brief would be 'useful' in its determination of any facts.

In the 9 June decision, the Chamber refrained from ruling on whether proper protective measures can be implemented prior to the return of the witnesses, noting that if it were satisfied with protective measures in place in the DRC, 'there would in principle be no reason for the Court to delay the witnesses' return to the DRC any further'.[54] The Office of the Prosecutor, the Government of the Kingdom of the Netherlands, and the DRC Government have all filed applications for leave to appeal the decision.

In a subsequent decision issued on 22 June, however, the Chamber appeared to have reversed its prior findings, holding that:

in principle, therefore, the detained witnesses can be returned as soon as the [Victims and Witnesses Unit] confirms that the DRC has accepted to cooperate with the Court in this matter and all necessary preparation has been accomplished. However, the Chamber reminds the DRC that even if the above measures are in place, the Court will only be able to return the detained witnesses if their request for asylum has been rejected by the Dutch authorities.[55]

The 22 June decision was issued after the Registry had filed observations regarding the efficacy of proposed protective measures on 7 June,[56] a report disputed by counsel for the witnesses. In its earlier risk assessment, the Victims and Witnesses Unit (VWU) had determined that as a consequence of their status as witnesses before the ICC, there appeared to be no increased risk of harm.[57] The VWU did note, however, that it would be difficult to implement appropriate protective measures for detained witnesses within a prison system.[58] In its 22 June decision, the Chamber determined that the implementation of several protective measures would meet the necessary requirements and allow the return of the detained witnesses as described above. The measures to be implemented by the DRC authorities include: their placement in a maximum protection facility, with specially-trained guards and security from co-detainees, and bi-weekly visits from members of the VWU as well as during any proceedings against them.[59]

The three witnesses claim that if they are returned to the DRC, their lives and those of their families will be in danger as a result of their knowledge of the Government's role, specifically that of President Kabila, in the attack on Bogoro. In support of this allegation, Dutch counsel for the three witnesses sent an urgent communication to the Trial Chamber regarding the status of Colonel Richard Beiza Bamuhiga (Congolese), who was brutally assaulted by Ugandan security forces following the revocation of his refugee status based on an agreement between Congolese and Ugandan authorities, and remains in critical condition.[60] The Ngudjolo Defence also filed observations supporting the witnesses' request that the ICC not return them to the DRC.[61]

The Katanga Defence had sought to meet with the witnesses at the ICC penitentiary facility prior to their testimony. This request was rejected by the Trial Chamber, which held that the Protocol on Witness Familiarisation prohibits such contact. The Chamber authorised counsel for Katanga to hold urgent meetings with witnesses in an administrative area of the penitentiary facility in the DRC.[62] Defence counsel then requested that the witnesses visit the accused in prison following their testimony at the ICC.[63] At the time of writing, the Trial Chamber has not yet decided upon this request.

■ Read the Trial Chamber's decision suspending the immediate return of the witnesses.

■ Read the Trial Chamber's decision on the security situation of the three witnesses.

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In this issue

■ Libya
Pre-Trial Chamber I issues Arrest Warrants

■ Kenya
Pre-Trial Chamber II issues Summonses to Appear for six individuals

■ Kenya
Kenya Government unsuccessfully challenges the admissibility of cases

■ Democratic Republic of the Congo
Request for observations on offences against the administration of justice in Lubanga case

■ Democratic Republic of the Congo
Detained defence witnesses in Katanga/Ngudjolo case seek asylum

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