Dear Friends,
Welcome to the first edition of the Legal Eye on the ICC, our new monthly 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 cases relating to the conflicts in Uganda, the Democratic Republic of the Congo (DRC), Darfur and the Central African Republic (CAR).
In addition to the Legal Eye on the ICC we also produce Women's Voices, a monthly e-letter providing updates and analysis on political developments, strategies for the pursuit of justice, the status of peace talks and reconciliation efforts from the perspective of women's rights activists from the four conflict situations.
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.
Warrant of Arrest issued for President of Sudan
On 4 March 2009, Pre-Trial Chamber I issued a Warrant of Arrest for the President of Sudan, Omar Hassan Ahmad Al'Bashir. This is the third Warrant of Arrest issued in the Situation of Darfur. The Pre-Trial Chamber found, as required by Rome Statute Article 58, that there were 'reasonable grounds to believe' that Al'Bashir has committed crimes within the jurisdiction of the Court, namely five counts of crimes against humanity, including rape, and two counts of war crimes.
The Warrant of Arrest was issued in response to the Prosecutor's application of 14 July 2008, which sought a warrant on charges of genocide, crimes against humanity and war crimes. The majority of the Chamber, Judge Ušacka dissenting, declined to include the crime of genocide in the Arrest Warrant, finding that the Prosecutor had not provided sufficient evidence to allow the Chamber to conclude that there were reasonable grounds to believe that Al'Bashir had committed this crime. Judge Ušacka, in her dissent, indicated that she had drawn different conclusions from her analysis of the evidence presented and was satisfied there were reasonable grounds to believe that Al'Bashir possessed genocidal intent and was criminally responsible for genocide.
This is the first Arrest Warrant issued by the Court for a sitting Head of State. A request to arrest and surrender Al'Bashir will be transmitted to the Government of Sudan. The ICC emphasised that all States are obligated to cooperate with this order of the Court under Chapter 7 of the United Nations Charter. States Parties to the Rome Statute have additional obligations to cooperate with the Court as defined in Part 9 of the Statute.
Concerns about retaliation by the Government in Sudan are high. Press and NGO reports indicate that the Sudanese Government continues to threaten and intimidate and, in some cases, arrest and torture Sudanese human rights activists and others suspected of having a connection with or supporting the Court. In November and December 2008, activists in Khartoum were arrested and tortured by the Sudanese Government.
In January 2009, Mohammed el-Sari became the first person convicted by a Sudanese court of trying to assist the ICC, and was sentenced to 17 years imprisonment. He had faced a possible death sentence for allegedly assisting with investigations in the ICC case against Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman ('Ali Kushayb'). In the context of increasing insecurity in Sudan, especially for those suspected of supporting the ICC, the Women's Initiatives for Gender Justice remains in close contact with our Sudanese partners and continues to closely monitor the proceedings on Darfur.
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The Prosecutor v Thomas Lubanga Dyilo :: Trial finally underway
After prolonged delays, the trial of Thomas Lubanga Dyilo, President of the Union des patriots Congolais (UPC) and Commander-in-Chief of the Forces patriotiques pour la libération du Congo, finally began at the Court on 26 January 2009 before Trial Chamber I. The first two days were taken up by the opening statements of the Prosecution, the Legal Representatives of the victims and the Defence.
Following a decision of the Trial Chamber issued on 15 December 2008, a total of 93 victims are now authorised to participate in the Lubanga case, and are represented in the trial proceedings by eight Legal Representatives. Included among the 93 victims are a small number of former girl soldiers. Lubanga is charged with six counts of war crimes arising out of the alleged UPC practice of enlisting and conscripting children under the age of 15 years and using those children to participate actively in the hostilities.
Since 2006, the Women's Initiatives has advocated for the investigation and prosecution of gender-based crimes committed by the UPC including against girl soldiers within their own ranks. Based on our documentation and analysis, we have long advocated the position that rape and other forms of sexual violence were an integral part of the process of enlistment and conscription for girls, particularly during the initial abduction phase and period of military training by the UPC. Perpetrating sexual violence upon girl soldiers was an inherent feature of the UPC's enlistment and conscription practices.
In an amicus curiae brief submitted to the Trial Chamber in March 2008, the Special Representative for the Secretary-General on Children and Armed Conflict emphasised the range of combat and non-combat related tasks/acts that children, girls in particular, are forced to perform or to which they are subjected, including sexual acts perpetrated against girl soldiers in the context of armed conflict. The Special Representative made the points that children's participation in hostilities 'takes numerous and varied forms and includes tasks and roles that are typically fulfilled by girls' and that 'girls in particular perform numerous combat support and non-combat roles that are essential to the functioning of the armed force or group'. She underscored that 'the use of girl children in particular includes sexual violence'. She urged the Trial Chamber to 'deliberately include any sexual acts perpetrated in particular against girls, within its understanding of the 'using' crime.
In his opening statement, the Prosecutor acknowledged, for the first time, the particular experiences of girls enlisted and conscripted by the UPC. The Prosecutor described how child soldiers were encouraged to rape women as part of their training and that they were sent by their commanders to look for women and to bring them to the camp. He also told the Chamber that girl soldiers, some as young as 12 years, 'were the daily victims of rape by their commanders' and that they were used as
cooks and fighters, cleaners and spies, scouts and sexual slaves. One minute they will carry a gun, the next minute they will serve meals to the commanders, the next minute the commanders will rape them. They were killed if they refused to be raped. One soldier became severely traumatised after killing a girl who refused to have sex with the commander.
Since 2006 we have been working with women victims/survivors and former girl soldiers to support their applications to the ICC to be formally recognised as victims. Some of these applicants are now recognised in the Lubanga case and as such we have been working with their Legal Representatives to ensure the inclusion of gender-based crimes and the experiences of girl soldiers in their presentations to the Court.
During the opening statements, four Legal Representatives specifically referred to the sexual violence perpetrated upon the girl soldiers they represent. The Legal Representative we have worked with most closely spoke at length about the experience and impact of sexual violence for girls recruited into the UPC, stating that some of the young girls she represents were recruited expressly for 'the purpose of sex and forced marriage'.
Most of the girls recruited by the UPC, she noted, were very young, some as young as 12-14 years, and these girls were raped regularly. Rape and other forms of sexual violence, she told the Chamber, were an integral part of the process of enlisting and conscripting girls into the UPC, and all the girl soldiers were raped and exploited by their leaders, the soldiers in their units, and their comrades. For some of the former girl soldiers she represents,
rape began as soon as they were abducted and continued throughout their stay with the UPC. In fact, often the abuses were greatest in the initial stages of their abduction and in the training camps where they were trained to become militia soldiers.
Many of these girls, victims of rape, suffer from psychological trauma. Many girls have been tortured, abused or imprisoned for refusing the sexual advances of their superiors which they then underwent against their will.
The Chamber heard of the devastating consequences of enlistment and recruitment for girls, including physical and psychological suffering, injuries both external and internal, unwanted pregnancies and rejection by their families and communities. Their vulnerability as girls was intentionally and systematically exploited and as a result they have been 'denied the right to a childhood, to be schooled, a right to safety, a right to be protected, a right to physical integrity, a right to reproductive health and sexual autonomy'.
The Chamber was informed by lawyer Carine Bapita that the victims she represents wished to the reserve the right to request from the Chamber 'a classification of crime of sexual slavery' against Lubanga. The Defence protested in their opening statement that the Legal Representative could not accuse Lubanga of crimes he wasn't being tried for.
Even in the absence of new charges reflecting these crimes of sexual violence, it is still open to the Trial Chamber to make a finding that rape and other forms of sexual violence occurred during, or were an integral part of, the enlistment or conscription process.
Pursuant to the Rome Statute [Article 74(2)] it is the Chamber's duty to make a decision 'based on its evaluation of the evidence' and part of the process of evaluating the evidence is to make findings of fact based on the evidence put before them. If the Prosecution calls credible evidence of rape and other forms of sexual violence being perpetrated against girl soldiers during the enlistment or recruitment process, and further assuming that this evidence is not impeached on cross examination, it is not unreasonable to expect the Chamber to make such a finding.
After the completion of opening statements, the Trial Chamber began hearing testimony from Prosecution witnesses. The testimony of the first witness, a former child soldier [witness 0298], was adjourned following a dramatic day of testimony during which he recanted in the afternoon the evidence he had given the Chamber under oath that morning. It is unclear precisely what prompted the young witness to recant, however, a number of factors could have had an influence on his willingness to testify fully.
The start of the witness's testimony was marked by both language and legal difficulties of a technical nature. The witness testified in Swahili and his testimony required translation first from Swahili into French, and then from French into English, before it could be understood by the Judges hearing the case. Because of problems with this translation regime, the witness was compelled to repeat his oath three times.
Further, the issue of self-incrimination arose just as the witness was to begin testifying. The Chamber was concerned that the witness had not been properly advised as to the possibility that he could, through his testimony, incriminate himself, thereby exposing himself to the risk of prosecution in the domestic courts of the DRC or elsewhere. His legal representative was asked to advise him of this risk, and to do so outside of the courtroom and in an unhurried fashion, and the Chamber took a recess so that this could be done. However, such warnings, even when given in the best possible way, could easily have the effect of intimidating a witness, particularly a young witness.
Another factor that may have played into the situation was the witness's proximity to Lubanga as he testified. Despite voice distortion and pixel scrambling of the video feed — protective measures put in place to prevent the witness being either seen clearly or heard clearly by the public — he could both see and be seen by Lubanga, who sat only a few metres away from him in the courtroom, and it is possible this proximity could have unnerved him.
At the request of the Prosecutor, the Chamber adjourned this witness's testimony and requested that the Victims and Witnesses Unit (VWU) interview the witness and report back on what was required to allow the witness's testimony to continue. In a preliminary report, the VWU advised the Chamber that it would be inappropriate for the witness to continue with his testimony at that time, but ruled out the possibility that an external threat had been made against the witness.
The difficulties with the testimony of this first witness call into question the 'workability' of the ruling made last year by Trial Chamber I prohibiting any form of 'witness proofing', a common practice at other international criminal tribunals, where the prosecution has the opportunity to meet with and familiarise their witnesses with Court procedures, and to prepare the witness to give evidence, to review the evidence they have already provided, and to answer any questions the witness may have about the process or their evidence.
The Trial Chamber ruled that only a much more limited form of preparation — termed 'witness familiarisation' — could take place, and that even this more limited form of preparation could not be undertaken by examining counsel, but would have to be handled by staff from the Court's Victims and Witnesses Unit (VWU).
The practical result of this ruling is that witnesses are unable to speak to or ask questions of the counsel who will be examining them once they are on the witness stand. An important benefit of witness proofing is that examining counsel are able to establish a rapport with the witness ahead of his or her testimony, so that, if problems arise during the testimony, counsel will have a better chance of being able to rectify the problems and continue with the examination of the witness. The ruling on witness proofing is examined in more detail at pages 82-83 of the Gender Report Card 2008 (download a copy).
Following this shaky start, the Trial Chamber went on to hear, without similar incident, the testimony of two further witnesses, one [witness 0299] the father of this first witness — himself a UPC soldier — and the other [witness 0038] a young man who had joined the UPC at age 16 or 17. Both gave detailed evidence concerning the recruitment and training of child soldiers by the UPC in Ituri during the relevant period.
Witness 0038 told the Chamber that the young recruits were flogged for infractions. He testified that the UPC commanders preferred to use children — both boys and girls — as their escorts and bodyguards, but that the young girls were also used 'to prepare food and for sexual services for the commanders' and that 'they use the girls more for this reason, as if they were their women, their wives'. He testified that he sometimes heard the girls crying during the night, and saying 'I don't want to' and that the young girls as well as the young boys were flogged, and in the case of the girls for having 'spent the night with trainers'.
On 10 February, witness 0298 returned to the Chamber to complete his testimony. This young witness was permitted to give his testimony in an unbroken narrative, instead of — as witnesses normally do — responding to a series of questions from the Prosecutor. Reminded of his earlier attempt to testify, he told the Chamber:
A lot of things were going through my mind. I got angry, and I wasn't able to testify.
He then told the Chamber of being abducted by UPC soldiers as he returned from school one day when he was about 11 years old, and being marched, along with a group of five of his school mates, a number of kilometres to a training camp in Bule. He testified that the recruits were beaten regularly over the course of their training, and that he saw recruits beaten to death or shot for running away.
The witness also said that there were both boys and girls in the training camp, that some of the girls were 'a little bit older' but that others were very young, younger than him, that the girls received the same training as the boys and that they took part in battles alongside the boys once they were trained. He testified that when the girls were brought to the camp, they were raped, and that 'they also worked for the older soldiers'.
The Trial Chamber has now heard the evidence of a total of ten witnesses, the majority of whom have been former child soldiers. On 5-6 March, the Chamber heard the evidence of the first — and to date the only — former girl soldier, who like all of the other witnesses testified under a cloak of anonymity. The witness testified that she had endured a brutal training regime, had participated in numerous battles and had been shot in the leg. Much of this witness's evidence was given in closed session; however, from questions asked by the lawyer from the Office of Public Counsel for Victims, it emerged that this witness, who had been recruited at the age of 13 years, had been raped by her commanders while in the camps where she received her training, and carried with her both physical and emotional scars from this experience.
Transcripts of the full opening statements of the Prosecutor and the Victims' Legal Representatives can be found at
http://www.icc-cpi.int/iccdocs/doc/doc623638.pdf
Transcripts of the Defence opening can be found at
http://www.icc-cpi.int/iccdocs/doc/doc623848.pdf
Transcripts of the testimony of witness 0298 can be found at
http://www.icc-cpi.int/iccdocs/doc/doc624554.pdf and
http://www2.icc-cpi.int/iccdocs/doc/doc633219.pdf
Transcripts of the testimony of witness 0038 can be found at
http://www.icc-cpi.int/iccdocs/doc/doc625548.pdf and
http://www.icc-cpi.int/iccdocs/doc/doc628584.pdf
Transcripts of the testimony of witness 0299 can be found at
http://www.icc-cpi.int/iccdocs/doc/doc632620.pdf and
http://www.icc-cpi.int/iccdocs/doc/doc632830.pdf
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Bemba Confirmation Hearing
Pre-Trial Chamber III held a confirmation hearing in the case of The Prosecutor v. Jean-Pierre Bemba Gombo in The Hague from 12-16 January 2009. Bemba, who was arrested in Belgium on 24 June 2008, is charged with a total of eight counts of war crimes and crimes against humanity, arising out of his role in events in the Central African Republic (CAR) in late 2002 and early 2003, when members of the Mouvement de libération du Congo (MLC) entered CAR territory to assist the weakened forces which had remained loyal to the then-CAR President Ange-Félix Patassé to suppress an attempted coup led by François Bozizé, former Chief of Staff of the CAR national forces.
Included among the charges Bemba faces are rape, torture, murder, pillaging and committing outrages upon personal dignity. It is alleged that, as President and Commander-in-Chief of the MLC, Bemba is criminally responsible jointly with Patassé under Article 25(3)(a) of the Rome Statute for having committed these crimes.
The Prosecutor has also suggested — although to date he has not formally pleaded this — that Bemba may alternatively be responsible under Article 28 of the Statute for the crimes committed by forces under his effective command and control, as a result of his failure to exercise proper control over them. The argument to be made under Article 28 is that Bemba either knew or should have known that his forces were committing or were about to commit crimes and that he failed to take all reasonable and necessary measures within his power to prevent or repress the commission of these crimes, or to properly investigate and prosecute those responsible for them.
During the Hearing, the Prosecution used summaries of the evidence of 11 sample witnesses to lay out its case. This evidence describes numerous attacks perpetrated by members of the MLC in the Central African Republic between October 2002 and March 2003. The attacks included rapes perpetrated on a mass scale, as well as killings and pillaging.
The Prosecution argued that these rapes were not opportunistic events, but were strategically employed as a weapon of war, perpetrated as part of a widespread and systematic attack against the civilian population, intended to punish civilian communities thought to be sympathetic to the rebels. The Prosecution advised the Chamber that the large number of rapes committed by members of the MLC outnumbered the killings, and argued that the rapes were committed with such extreme violence and cruelty as to amount to torture. The Chamber heard that some rape victims suffered permanent injuries as a result of the rapes, others were impregnated and many were infected with HIV and that some of these victims have since died.
Two Legal Representatives represented the 54 victims who were granted standing to participate in the confirmation hearing. Among these victims are women and girls who were raped, some of whom were infected with HIV and other sexually transmitted diseases, as a result of the rape, and others of whom became pregnant as a result of being raped.
In their opening statements, they spoke of the horrors their clients had lived through during the conflict. The Legal Representatives talked about the right of the victims to know the truth, of their central interest in establishing the facts and identifying those responsible for their suffering, of their desire for a role in a process which would counteract the impunity of the perpetrators, and of the need for their suffering to be recognised.
Bemba's Defence team argued that there is not sufficient proof these crimes were committed by MLC forces. They also argued that if the crimes were in fact committed by members of the MLC, it was during a time when these forces were under the command of Patassé rather than Bemba. Finally, they argued that Bemba had no knowledge such crimes were being committed, should not be expected to have known they were occurring and did not have reason to anticipate that they would occur.
As the Chamber reminded the parties, participants and observers at the outset of the hearing, a confirmation hearing is not a trial: The Chamber does not have to decide on the guilt or innocence of the suspect. Instead, its purpose is 'to act as a filter', distinguishing cases which should go to trial from those which should not.
The test the Chamber must apply is 'whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged' [Rome Statute, Article 61(7)]. The Chamber will now consider the oral arguments, along with any written submissions filed by the parties and participants, then issue a decision on the confirmation of the charges in the near future.
The transcripts of the proceedings for the four days of the Bemba confirmation hearing can be accessed via the Court's website, at
http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/Situations/
Situation+ICC+0105/Related+Cases/ICC+0105+0108/Transcripts/Pre+Trial+Chamber+III
The Women's Initiatives for Gender Justice has advocated intensively in the CAR case not only for prosecution of rape, but also for prosecution of rape as torture given the mode of operation of the MLC. We have also worked closely with women's rights activists in CAR, both by providing training and workshops about the ICC and by facilitating the attendance at the confirmation hearing in The Hague of a key partner. Her attendance, however, was marred by the presence throughout the hearing of a large, vocal group of Bemba's Congolese supporters. Their harassment of certain observers at the hearing created a frightening, chaotic environment at the Court as the proceedings got underway, and raised security concerns for all those attending to observe the hearing.
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Darfur update :: Application for amicus curiae status denied
As discussed above, on 4 March 2009, Pre-Trial Chamber I issued a decision granting the Prosecutor's application for a Warrant of Arrest for Sudanese President Al'Bashir, for war crimes and crimes against humanity. The Prosecutor, in an application filed on 20 November 2008, has also sought three further Warrants of Arrest in respect of the Situation under investigation in Darfur, arising out of attacks allegedly committed by rebel groups against UN peacekeepers in Darfur in 2007 (the 'Haskanita attack').
On 12 January 2009, two groups, the Sudan Workers Trade Unions Federation (SWTUF) and the Sudan International Defence Group (SIDG), filed an application in Pre-Trial Chamber I with respect to the Prosecutor's two Arrest Warrant applications. These groups purport to represent the interests of millions of Sudanese workers and citizens, and claim to be supported in bringing the application by 'various national organisations in Sudan' including the National Federation of Sudanese Youth, the Sudanese Farmers' General Union, the Sudanese Women's General Union, the General Sudanese Students' Union, the General Sudanese Pastoralist Union, and the Sudanese Journalists Union.
However, according to Sudanese partners of the Women's Initiatives for Gender Justice, who are well-established Sudanese NGOs, many of these organisations are either not known, or are known to support and/or be created by the current Government of Sudan.
The applicants had requested that the Chamber consider their filing when dealing with 'any and all applications for arrest warrants by the ICC Prosecutor' relating to the conflict in Darfur and specifically requested that the Court not issue the Arrest Warrants sought by the Prosecutor, either for Al'Bashir or for the three rebel commanders allegedly involved in the attack on the Haskanita peacekeepers.
They urged the Court to show deference to considerations such as the peace-building process and Sudanese national interest and security. They also argued that issuing the Arrest Warrants would not serve the interests of justice, that the Arrest Warrants could entrench negative perceptions of the ICC and contribute to a deterioration of the situation in Sudan, and that alternative means of transitional justice and resolution were being pursued without the need for ICC involvement at this stage.
On 4 February 2009, Pre-Trial Chamber I issued a decision denying the applicants status as amicus curiae under Rule 103, deciding not to take the observations of the applicants into consideration, and rejecting the applicants' request for an oral hearing on their application. The 'first and foremost factor' in granting amicus status, the Chamber ruled, is whether the application 'relates to an issue that is actually before the competent Chamber'.
The Chamber ruled that, as the application request was premised on the argument that granting the Arrest Warrants would be 'prejudicial to the interests of justice', it must necessarily fail since the Chamber had no power to review the Prosecutor's assessment that the initiation of a case against Al'Bashir 'would not be detrimental to the interests of justice', and therefore that the requirements to file observations as amicus curiae were not met.
On 11 February 2009, the applicants sought leave to appeal this decision. They argued that the Pre-Trial Chamber had focused solely on the interests of justice issue, and had failed to address the other arguments they raised in their application, particularly their arguments that the arrest warrants, if issued, would have grave implications for the peace-building process in Sudan, and could entrench negative perceptions of the ICC and thereby contribute to a deterioration of the situation in Sudan.
This application for leave to appeal was summarily rejected by Pre-Trial Chamber I on 19 February 2009, on the grounds that the applicants were not a party to the proceedings and as such had no standing under Article 82(1) of the Statute to appeal from a decision denying them amicus status.
While the applicants were ultimately unsuccessful in their bid for amicus curiae status, their application represents a challenge to the potential issuance of an arrest warrant, before the Pre-Trial Chamber has ruled on the merits of the Prosecutor's applications. In their request for leave to appeal, the applicants argue that it is before the issuance of an arrest warrant when judicial powers of review should in fact be 'most intrusive and searching to safeguard security interests, the interests of justice and the integrity of judicial proceedings'.
Pursuant to the provisions of the Rome Statute, the Prosecutor's decisions are reviewable throughout the early stages of proceedings, in certain circumstances, both by the Judges of the Court and by the Security Council.
As the Women's Initiatives has argued in our 2006 filings in the Lubanga case, Articles 58(1) and 61(7) of the Rome Statute provide for the Pre-Trial Chamber to have a general supervisory jurisdiction over Prosecutorial discretion, in the context of the decision on the request for an Arrest Warrant, and in the Confirmation of Charges proceedings. This supervisory jurisdiction would allow the Pre-Trial Chamber to refuse to issue an arrest warrant, or to refuse to include certain crimes in an arrest warrant, under Article 58(1).
In the Al'Bashir case, for example, the crime of genocide was not included in the Arrest Warrant, despite having been requested by the Prosecutor. Likewise, a Pre-Trial Chamber could, under Article 58, specify in an arrest warrant crimes other than those specified by the Prosecutor, make inquiries into the evidence held by the Prosecutor, and invite further investigations if needed. Under 61(7), in the context of the Confirmation of Charges proceedings, the Pre-Trial Chamber can refuse to confirm a charge, and also has the power to request the Prosecutor to consider conducting further investigations with respect to a particular charge, or to amend a charge. These filings are available at http://www.iccwomen.org/publications/articles/docs/LegalFilings-WebFinal.pdf
It is also important to keep in mind when looking at this question of supervisory jurisdiction over Prosecutorial discretion that under Rule 107, the Pre-Trial Chamber may review the Prosecutor's decision not to initiate an investigation or not to prosecute, at the request of referring States or the Security Council, within 90 days of the Prosecutor's decision. In addition, Article 16 of the Rome Statute provides that 'no investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations has requested the Court to that effect' and further provides that the request 'may be renewed by the [Security] Council under the same conditions'.
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