Look On! Fireflies in World War II Japan

(Look On! takes occasional note of noteworthy productions)

Grave of the Fireflies is one of the best antiwar movies ever made, in my opinion.
Released in Japan as Hotaru no Haka, Fireflies was made in 1988 by Studio Ghibli, cofounded by Hayao Miyazaki and Isao Takahata. (Other animated films they've made include Spirited Away (2001), My Neighbour Totoro (1988), and Nausicaä (1984).)
Fireflies is directed by Takahata, who has a distinctive animation style. His movies, which are often touching and nostalgic, include Only Yesterday (1991), Pom Poko (1994), and the hilarious My Neighbour the Yamadas (1999).

(credit)

Undoubtedly, Grave of the Fireflies is his masterpiece.
The film tells the story of two children. Seita, a 14-year-old boy, and his little sister, 4-year-old Setsuko. Their story is set against the firebombing during World War II of the city of Kobe (which would later suffer from a devastating earthquake). The mother of the children is caught in the bombing and dies. The children move in with their aunt. However, as the food supplies diminish, the aunt becomes increasingly resentful, and the children move out into an abandoned  shelter. Seita has no option but to steal food but his supplies of rice are insufficient. Setsuko slowly dies of malnutrition – just as the announcement comes of Japan's unconditional surrender to the United States
The film was based on a semi-autobiographical novel of the same name, written, by Akiyuki Nosaka, as an apology to his little sister who died during WWII.
Fireflies stirs thoughts about the plight of children during conflict.
Jumping to mind is the International Criminal Court case of Thomas Lubanga, recently sentenced to 14 years of imprisonment for his role in enlisting and conscripting children in the conflict in the Democratic Republic of Congo. Child soldiers in Africa, forcibly conscripted in some cases, sexually violated in others, have become a focus of prosecutions at the ICC.
Grave of the Fireflies shows other hardships faced by children due to war and conflict. Seita and Setsuko are orphaned, homeless, starved, and rejected by an adult population. Their story is a reminder of the innocent lives destroyed in the senseless pursuit of territorial expansion.
Definitely worth watching.

(Cross-posted at Human Rights Film Diary blog)

A few more thoughts on the ICC Lubanga decision setting out reparations principles

As noted here by IntLawGrrl Naomi Roht-Arriaza, today the ICC's Trial Chamber I issued its “Decision establishing the principles and procedures to be applied to reparations” in the case against Thomas Lubanga Dyilo (left). Lubanga was convicted and sentenced to 14 years of imprisonment earlier this year for the war crimes of conscripting and enlisting children under the age of 15 and using them to actively participate in military hostilities in the Democratic Republic of the Congo.
Naomi’s earlier post provides an excellent summary of the decision. I lay out here a number of additional aspects of the decision that I think are worthy of note.
► First, despite the recommendation of observers – including that of the War Crimes Research Office (WCRO), which I run – that the Court proactively issue general reparations principles outside of the context of any single case and prior to the issuance of its first reparations award (see WCRO Report on The Case-Based Reparations Scheme at the International Criminal Court), the Chamber states from the outset that the principles established in the decision are “limited to the circumstances of the present case . . . [and] not intended to affect the rights of victims to reparations in other cases, whether before the ICC or national, regional or other international bodies.” (para. 181) As we stated in our report, the absence of general guidance on a variety of issues related to the scheme, combined with the fact that the judges of the ICC hail from diverse backgrounds, may result in discrepancies in the approach to reparations across cases, which may in turn lead to perceptions that the overall scheme is unfair or arbitrary.
► Second, even though the majority of the Trial Chamber declined in its sentencing judgment to treat sexual violence and rape as an aggravating factor for the purposes of sentencing, the principles announced by the Chamber in this decision suggest that victims of sexual violence may well be among the beneficiaries of a reparations program. Indeed, the decision notes in several instances the importance of taking into account the needs of victims of sexual and gender-based violence, including:

• 'The Chamber recognises that priority may need to be given to certain victims who are in a particularly vulnerable situation or who require urgent assistance. These may include, inter alia, the victims of sexual or gender-based violence, individuals who require immediate medical care (especially when plastic surgery or treatment for HIV is necessary), as well as severely traumatized children, for instance following the loss of family members. The Court may adopt, therefore, measures that constitute affirmative action in order to guarantee equal, effective and safe access to reparations for particularly vulnerable victims.' (para. 200)

• 'The Court should formulate and implement reparations awards that are appropriate for the victims of sexual and gender-based violence. The Court must reflect the fact that the consequences of these crimes are complicated and they operate on a number of levels; their impact can extend over a long period of time; they affect women and girls, men and boys, together with their families and communities; and they require a specialist, integrated and multidisciplinary approach.' (para. 207)

This is surprising, given that Lubanga was not convicted of any sexual violence crimes and it seems unlikely that the Chamber possesses the authority to make an award of reparations against a convicted person for crimes other than those for which he or she was convicted.

In Lubanga, ICC sets out reparations principles

Today Trial Chamber I of the International Criminal Court issued principles on reparations, in the context of the Lubanga case.
On March 14, a former militia leader in the Democratic Republic of Congo, Thomas Lubanga Dyilo, was found guilty of the war crimes of enlisting and conscripting children under the age of 15 years and using them to participate actively in hostilities. On July 10, he was sentenced to 14 years in prison. (IntLawGrrls' prior Lubanga posts are here; Susan SáCouto's additional post here.)
Today's order was issued by the same judges who rendered the verdict and imposed the sentence –  Judge Adrian Fulford of the United Kingdom, Judge Elizabeth Odio Benito of Costa Rica, and Judge René Blattmann of Bolivia.
In today's 94-page order, this Trial Chamber of the Court drew heavily on existing soft law on reparations (including the U.N. Basic Principles approved in 2005) as well as on the jurisprudence of the regional human rights courts, especially the Inter-American Court. It detailed what is involved in restitution, compensation and rehabilitation.
Throughout, the Court tries to strike a balance between being inclusive and non-discriminatory and recognizing the specific needs of certain sub-groups of victims. While it doesn’t limit the reparations award to those who have applied or those who appeared before the Court, it does try to tailor rehabilitation, for example, to the specific needs of victims of child recruitment.

Sexual violence
Even though the charges against Lubanga did not include charges of crimes of sexual violence (something much criticized by women’s groups at the time) the reparations judgment makes a point of including a discussion of these crimes. It calls for reparations to combat stigmatization and exclusion, and recognizes that victims may feel shame. The Court adds:

'207. The Court should formulate and implement reparations awards that are appropriate for the victims of sexual and gender-based violence. The Court must reflect the fact that the consequences of these crimes are complicated and they operate on a number of levels; their impact can extend over a long period of time; they affect women and girls, men and boys, together with their families and communities; and they require a specialist, integrated and multidisciplinary approach.
'208. The Court shall implement gender-sensitive measures to meet the obstacles faced by women and girls when seeking to access justice in this context, and accordingly it is necessary that the Court takes steps to ensure they are able to participate, in a full sense, in the reparations programmes.'

Trust Fund for Victims
Because none of Lubanga’s assets were ever found, the reparations will have to come from the Trust Fund for Victims (TFV). The Fund’s total budget is only a few million dollars, and many European governments have cut back on their donations given the financial crisis. Moreover, in addition to providing and administering reparations in cases before the Court, the TFV has also been funding broader programs of assistance to hard-hit communities in the DRC. The Court therefore opted to deemphasize individual compensation, and focus on collective reparations. The Court had this to say:

'220. Individual and collective reparations are not mutually exclusive, and they may be awarded concurrently. Furthermore, individual reparations should be awarded in a way that avoids creating tensions and divisions within the relevant communities.
'221. When collective reparations are awarded, these should address the harm the victims suffered on an individual and collective basis. The Court should consider providing medical services (including psychiatric and psychological care) along with assistance as regards general rehabilitation, housing, education and training.
'... The Chamber endorses this suggestion of the TFV that a community-based approach, using the TFV's voluntary contributions, would be more beneficial and have greater utility than individual awards, given the limited funds available and the fact that this approach does not require costly and resource intensive verification procedures.'

5-point plan
Given these priorities, the Court declines to adjudicate on the individual reparations forms submitted to date, ordering that they be turned over to the TFV. It lays out a 5-point plan, including constitution of a multidisciplinary group of experts to work with the TFV under Court supervision.

Thomas Lubanga Sentenced to 14-Year Term

Today, Trial Chamber I of the International Criminal Court sentenced Thomas Lubanga Dyilo to 14 years of imprisonment. Unless appealed, he will serve eight years in prison. (photo courtesy of the ICC's webpage) The full judgment is available here.
In March, Lubanga was found guilty (post on that here) of the war crimes of conscripting and enlisting children under the age of 15 and using them to actively participate in military hostilities in the Democratic Republic of the Congo. Heralded as a milestone, the judgment also inspired commentary over issues such as the reception of the judgment in the DRC and how long Mr. Lubanga’s sentence should be for a relatively narrow conviction.
Another major source of debate arose regarding the appropriate extent of victim reparations (see, e.g., here and here, as this trial is seen as a test case for the ICC’s reparations scheme. This debate will continue, however, as the Court did not render a decision on reparations today. Although it was originally scheduled for today, the Chambers indicated late last week that the reparations decision would be delivered “in due course.”
This marks the first sentence handed down by the ICC. According to Article 78 of the Rome Statute:

1. In determining the sentence, the Court shall, in accordance with the Rules of Procedure and Evidence, take into account such factors as the gravity of the crime and the individual circumstances of the convicted person.
2. In imposing a sentence of imprisonment, the Court shall deduct the time, if any, previously spent in detention in accordance with an order of the Court. The Court may deduct any time otherwise spent in detention in connection with conduct underlying the crime. 

The sentence must be proportionate to the crime committed and must reflect Mr. Lubanga’s culpability (ICC RPE, Rule 145(1)(a)). In deciding the appropriate sentence, the Trial Chamber had to consider aggravating and mitigating circumstances (ICC RPE, Rule 145(1)(b)), the circumstances of Mr. Lubanga and the gravity of the crime.

During the sentencing hearing, Mr. Lubanga told the judges that he acted in the interests of peace, not power or money. His defense counsel, noting that he’d been in detention by the ICC for six years, argued that the exact number of children in his militia was unknown, which would impact the judges’ deliberation of the “extent of the crime.” Moreover, the defense spread the blame for atrocities in the DRC to regional presidents, who, the defense contended, should have been prosecuted instead of Mr. Lubanga. The prosecution, however, argued that Mr. Lubanga bears the greatest responsibility for the crimes and should be sentenced to 30 years imprisonment—or less, if he gave a genuine apology to his victims. (photo courtesy of the ICC's webpage on the case)

Lubanga sentence, reparations tomorrow

The delivery of sentence and reparations order will be tomorrow for Thomas Lubanga Dyilo (left), erstwhile militia leader from the Democratic Republic of Congo, about whose International Criminal Court prosecution we've frequently posted. On March 14, Lubanga was found guilty of conscripting and enlisting children under the age of 15 and using them to participate in hostilities. (photo courtesy of the ICC's webpage on the case)
The open-court hearing before Trial Chamber I will begin at 9:30 a.m. Hague time (3:30 a.m. New York time).
You can watch the session live, in English or French, here.

The Taylor Judgment and Child Soldiers

(My thanks for the opportunity to contribute this introductory post, another of IntLawGrrls' several posts on the Charles Taylor judgment, part of the Sierra Leone accountability series)

Trial Chamber II of the Special Court for Sierra Leone found Charles Taylor guilty yesterday of each of the eleven counts for which he was charged, including for conscripting or enlisting children under the age of 15 years into armed forces or groups, or using them to participate actively in hostilities.
 This is not the first conviction by the Special Court for this war crime, a violation of international humanitarian law, recognized under article 4(c) of its Statute. In fact, the Special Court broke new ground when it convicted three Armed Forces Revolutionary Council (AFRC) leaders for these crimes, in 2007: the very first time individuals were found guilty by an international or hybrid court for recruiting or using ‘child-soldiers’ (Judgment of Trial Chamber II – AFRC case). These convictions were followed by others before the SCSL, ultimately paving the way for the recent decision of the International Criminal Court, which convicted Thomas Lubanga Dyilo for recruiting children under the age of 15 years into his armed group, or for using them to participate actively in hostilities.
The Taylor judgment has added to the growing jurisprudence on ‘child soldiers’ by convicting an individual for aiding and abetting others in the conscription or enlisting of children under 15 into armed forces/groups, or using them to participate actively in hostilities. It will be interesting to see, once the judgment is available, how the Chamber applied this mode of liability to a crime for which knowledge of the age of the victims is essential. From the summary judgment available here, it appears that the Chamber found that Charles Taylor knew that RUF soldiers, under the command of NPFL officers, abducted civilians in Sierra Leone, including children, forcing them to fight within the NPFL/RUF forces against the Sierra Leonean forces and ULIMO (para. 126 of the summary judgment). As early as August 1997, when he became President of Liberia, he was informed in detail of the crimes committed in Sierra Leone, including the abduction of children (para. 129 of the summary judgment).
When reading the judgment, judge Richard Lussick, the presiding judge, recalled that:

'[…] the operational strategy of the RUF and AFRC was characterised by a campaign of crimes against the Sierra Leonean civilian population, including murders, rapes, sexual slavery, looting, abductions, forced labor, conscription of child soldiers, amputations and other forms of physical violence and acts of terror. These crimes were inextricably linked to how the RUF and AFRC achieved their political and military objectives […They ] pursued a policy of committing crimes in order to achieve military gains at any civilian cost, and also politically in order to attract the attention of the international community and to heighten their negotiating stance with the Sierra Leonean government.'

(Paragraph 150 of the summary judgment). On this basis, the conscription of children in Sierra Leone seems to have served a dual goal; it was a way to pursue this policy of criminal campaign against Sierra Leonean civilians, victimizing children and their entire families; and in turn, the children, once associated with the armed groups, were used as instruments to commit atrocities and further this policy.
Brenda Hollis (right), the SCSL Prosecutor, commenting on the conviction for recruiting and using child soldiers, declared:

'Children were taken from their families, and not only used to fight, but also to commit crimes against their fellow Sierra Leoneans. This robbed these children of their childhood, and the judges have sent a clear message that this will never be tolerated.'

Another aspect of the judgment that should hopefully prove interesting is the Chamber’s approach to defining the terms ‘use to participate actively in hostilities’, and whether it confirms the earlier SCSL jurisprudence on this, or departs from it.
To date, ‘active participation’ has been interpreted somewhat expansively by the SCSL, apparently in an attempt to include the many roles performed by children associated with armed groups and forces, notably by girls, who may be ‘used’ as sexual slaves or in other non-combat roles. This broad understanding has been enthusiastically supported by those seeking to remedy past trends, where girls were too often excluded from the benefits of disarmament, demobilization and reintegration programs because they could not turn in a gun. However, there is potentially a risk in too broadly defining ‘use to participate’ especially from an IHL targeting perspective, where individuals deemed to directly participate in hostilities lose their protection against direct attack. Perversely therefore, by trying to label more activities as child soldiering, one runs the risk of making more children open to attack.

Introducing Alison Cole

It's our great pleasure to welcome Alison Cole (right) as an IntLawGrrls contributor.
Based in New York and serving as Open Society Justice Initiative Legal Officer, International Justice, Alison is an expert on international criminal law. That's evident in her recent writings on the March 14 International Criminal Court judgment of conviction in Lubanga – published as an op-ed in London's Guardian and as an ASIL Insight, the latter co-authored with IntLawGrrl Kelly Askin. (IntLawGrrl Jennifer Easterday's prior post on this judgment is here.)
Alison's worked in prosecutions at the International Criminal Tribunal for Rwanda; as legal officer with the Co-Investigating Judges at the Extraordinary Chamber in the Courts of Cambodia; and with investigations at the International Criminal Court and at the Appeals Chamber of the International Criminal Tribunal for Rwanda and the former Yugoslavia. While working at these courts and tribunals, Alison covered cases addressing sexual and gender-based violence, including working on the Rape Database at the ICTR and assisting the expert witness on sexual violence, Binaifer Nowrojee.
Alison holds a first class B.A. honors degree in law from Cambridge University, participated in the European Erasmus exchange at Utrecht University, earned her LL.M. degree from Harvard Law School, and is a member of the New York bar.
In her introductory post below, Alison explains how a recent judgment of the International Criminal Tribunal for Rwanda bursts many myths about the viability of international prosecutions for rape and other sexual violence. Like the just-concluded 3-part series on post-genocide sexual violence survivors, Alison's post coincides with the 18th anniversary of the genocidal violence in Rwanda.
Alison dedicates her post to a fellow New Zealander, Kate Sheppard (1847-1934). Of Sheppard, about whom we've posted here and here, Alison writes:

'She was the woman behind the first critical step in women actualizing the right to vote. She was New Zealand’s pioneer suffragette – a tireless activist on a range of women’s rights issues, who ultimately achieved legislation which made New Zealand the first country in the world where women voted. In 1873 women rate-payers were able to vote in local body elections, and after several attempts of lobbying the national government over 15 years, parliament finally passed the law giving women the vote in 1893. She then became active in the suffragette movement in other countries, including the UK and the USA. She also adopted a range of other causes including dress reform for women, such as the abolishment of corsets, and promoted bicycling and other forms of physical activity for women. Recognized as a national treasure and a great source of pride for New Zealanders, her image appears on the New Zealand $10 banknote.'

Sheppard joins the many other inspiring women honored on IntLawGrrls' foremothers page.
Heartfelt welcome!

Lubanga Found Guilty by ICC Trial Chamber

Today, Trial Chamber I of the International Criminal Court found Thomas Lubanga Dyilo guilty of the war crimes of conscripting and enlisting children under the age of 15 and using them to actively participate in military hostilities during the conflict in Ituri, Democratic Republic of the Congo.Mr. Lubanga was the President of the Union of Congolese Patriots (UPC) and the commander-in-chief of its military wing, the Forces Patriotiques pour la Libération du Congo (FPLC, Patriotic Liberation Forces of the Congo). He was found guilty as a co-perpetrator for conscripting, enlisting and using the child soldiers in furtherance of a common plan to gain and maintain political and military power in Ituri. A separate sentencing hearing will follow.Although Judges Bonito and Fulford have written separate and dissenting opinions on discrete issues, the decision on Mr. Lubanga’s guilt was unanimous. An appeal is likely.This is the first-ever judgment of the ICC and marks a historical moment. However, the trial, which has dragged on for six years since the time of Mr. Lubanga’s arrest and transfer to the court in 2006, has been marred in controversy that demonstrates the ICC’s growing pains. The proceedings raised many critical issues the ICC will be forced to deal with as it continues to mature, including disclosure obligations, the use of intermediaries by the Prosecution, and the participation of victims in the proceedings.

Condemning Prosecution’s Use of Intermediaries
During today’s reading of the judgment, the Trial Chamber made special note of the Prosecution’s use of intermediaries—third parties non-Court staff—to gather evidence for the trial (prior IntLawGrrls posts here and here). The Court considered that the OTP should not have delegated its investigative duties to the intermediaries, even considering the security concerns the OTP faced. The Court chastised the OTP for its “negligence” in failing to scrutinize and analyze the evidence gathered by the intermediaries. The court noted that because of the OTP’s lack of oversight, the intermediaries were able to take advantage of and manipulate witnesses who were former child soldiers, given their vulnerability due to their young age and traumatic experiences. The evidence of those witnesses could not safely be relied on, the Chamber concluded. The Chamber went so far as to suggest that the Prosecution charge three intermediaries for crimes against the administration of justice (Art. 70 of the Rome Statute) for persuading, encouraging and assisting witnesses to give false evidence. The Court told the OTP to ensure that there are no conflicts of interest in pursing such charges against the Prosecution’s own intermediaries.Although at some point the conflict in Ituri was international in character, the Court found that during the period of the conflict relevant to the charges (September 2002 – August 2003) the UPC FPLC was involved in an internal armed conflict. Therefore, the Chamber changed the legal characterization of the facts pursuant to Regulation 55.

Conscripting and Enlisting Child Soldiers
The Chamber concluded that enlisting and conscripting children under the age of 15 becomes a crime as of moment the child is enrolled into or joins armed groups—with or without compulsion. The crime is continuous in nature and ends when the child turns 15 or leaves the group, the Court found. Between September 2002 and August 13, 2003, the Chamber found that the armed wing of the UPC was responsible for the widespread recruitment of young people, including children under 15.

Go On! On day of Lubanga verdict, "Atrocity Crimes Litigation 2011: Year in Review" at The Hague

(Go On! is an occasional item on symposia and other events of interest)

Pleased to announce an exciting event in which yours truly has the honor of taking part:
The Atrocity Crimes Litigation Year in Review (2011) Conference, billed as a "discussion of atrocity crimes litigation of 2011 with leading practitioners and experts," will be held from 10 a.m. to 4:30 p.m. on Wednesday, March 14, 2012, at the Special Tribunal for Lebanon, Dokter van der Stamstraat 1, in Leidschendam, adjacent to The Hague in the Netherlands. (credit for photo below of tribunal's building)
As this conference begins, we've just learned, Trial Chamber I of the International Criminal Court will "deliver its decision on the innocence or guilt of Thomas Lubanga Dyilo," the 1st person to stand trial at the ICC. That event promises rich discussion at our conference just up the road from the ICC.
The year-in-review conference began several year ago. Its founder, our colleague David Scheffer, held it at his home institution, Northwestern University School of Law in Chicago. This year will be the 1st that the Northwestern Law conference goes to The Hague, home to the ICC, the Special Tribunal for Lebanon, and others among the tribunals to be reviewed.
The day will be web-linked to Northwestern students, and a recording will be available online in due course.
What's more, this year as in the past, the conference proceedings will form a forthcoming issue of the Northwestern Journal of International Human Rights (prior issues available here).
At center stage will be prosecutors and defense lawyers, who will report on, and debate, the year's developments at the various tribunals. My role is to serve as something of a backgrounder and color commentator, then to contribute a year's recap to the Journal. In this annual role, I'm honored to follow a couple IntLawGrrls, Beth Van Schaack (contribution here) and Valerie Oosterveld (contribution here), as well as our colleagues Göran Sluiter (contribution here) and William A. Schabas (contribution here).
Here's the full lineup for this year's event:
Moderator:
► David Scheffer, Mayer Brown/Robert A. Helman Professor of Law, Northwestern University School of Law
Panelists:
► Diane Marie Amann, Emily and Ernest Woodruff Chair in International Law, University of Georgia School of Law
► Caroline Buisman, Defence Counsel, International Criminal Court
► Andrew Cayley, International Co-Prosecutor, Extraordinary Chambers in the Courts of Cambodia
► Sara Criscitelli, Prosecution Coordinator, International Criminal Court
► Mark Harmon, recently retired from his post as Senior Trial Prosecutor, International Criminal Tribunal for the former Yugoslavia
► Brenda Hollis (far left), Chief Prosecutor, Special Court for Sierra Leone (photo credit)
► Hassan Jallow, Chief Prosecutor, International Criminal Tribunal for Rwanda
► Daryl Mundis, Chief of Prosecutions, Special Tribunal for Lebanon
Preregistration is required and closes March 5, 2012; click here.

Write On! Lubanga

(Write On! is an occasional item about notable calls for papers)

The International Criminal Court Student Network invites submissions from young scholars for its conference entitled "The Lubanga Trial: Lessons Learned," to be held March 8 and 9, 2012, in The Hague, Netherlands. (h/t) Submissions should be focused on the International Criminal Court trial of Thomas Lubanga Dyilo, judgment in which is expected soon, or on some other aspect of the work of the ICC.
The opportunity to present and discuss international criminal law research is aimed at undergraduate, graduate, and law students, as well as professionals academics 5 or fewer years away from their last degree.
Invited speakers will be asked to prepare comments or a paper. A number of papers will be selected for publication in Issues in International Criminal Justice, the journal of the Network. (credit for Network logo at right)
Deadline for submission of a 400-word abstract is January 23, 2012. Details on the call for papers and the conference are available here.

Intervention at ICC ASP

NEW YORK – In my capacity as Senior Legal Officer for the Open Society Justice Initiative, I spoke yesterday to the Assembly of States Parties to the Rome Statute of the International Criminal Court that is now holding its tenth annual meeting at U.N. headquarters. (photo credit)
IntLawGrrls have covered the meeting in posts available here -- among them, a guest post by ICC Prosecutor-Elect Fatou Bensouda.
My own remarks to the Assembly are here:

As noted by others here, huge changes are coming to the ICC within the next few months alone. The Court will soon be led by an experienced prosecutor from Africa, six new judges will be sworn in and correspondingly, six judges who have rendered key decisions on issues such as intermediaries, proofing witnesses, victim participation and witness protection, and the confirmation of charges, will be leaving the court; the leadership in the Assembly of States Parties is changing; the Court’s first Trial Chamber Judgment will be issued in the Lubanga case; and the court will begin proceedings against its first former head of state. These significant changes could potentially result in the court heading in far different directions than the course that’s been charted over the past ten years.
The Open Society Justice Initiative has been working on the ICC since its inception, and in these brief remarks, I’ll simply highlight two areas we’ve been engaged with intensely for several years: intermediaries and complementarity.

Intermediaries
Intermediaries are critical to the Courts operations and in fulfilling its mandate, and these individuals or organizations assist various organs of the court. The Justice Initiative began working with and as intermediaries in the Democratic Republic of Congo in 2003. Since that time, particularly as the Lubanga trial unfolded, we have focused considerable attention on the need for guidelines in dealing with intermediaries. To this end, we urge:
► The ASP President to appoint an intermediaries facilitator through The Hague Working Group to assist in finalizing the ICC Intermediaries Guidelines and monitor their implementation to make suggestions for improvement where necessary;
► The ASP to give due consideration to the ICC Intermediaries Guidelines and adopt the Guidelines at the earliest opportunity;
► The ICC to utilize the ICC Intermediaries Guidelines to inform their interactions with intermediaries at least during 2012 pending adoption at a forthcoming ASP and to ensure the Guidelines are subject to an on-going monitoring process, involving both the Court, intermediaries and external experts to ensure the Guidelines are effective achieving their aims in managing the partnership with intermediaries.
Next month, the importance of intermediaries and dealing appropriately with them is expected to be a very fundamental issue in the Lubanga Judgment.

Complementarity
Turning to complementarity, it too is a topic that is critical to the success of the Court and for ending impunity for mass crimes. In 2008, the Open Society Justice Initiative first began working in concrete terms on assisting domestic jurisdictions in their willingness and ability to prosecute atrocity crimes. As I've posted, we began the process of designing and implementing a mobile gender justice court in eastern DRC, to provide some measure of justice to the tens of thousands of women and girls victimized by war and impunity. (See too this post.) Since then, the Justice Initiative has been analyzing complementarity options in other places, such as Kenya and Uganda.
On Monday, we launched a handbook on complementarity, titled International Crimes, Local Justice, which represents an attempt to bridge the gap between international justice and rule of law communities and to demonstrate how complementarity can be implemented once decisions are made to prioritize it.
To this end, it is important that the ASP educate development agencies, embassies on the ground, national governments, and civil society about the importance of local justice systems holding fair trials for international crimes. It can convene the relevant actors needed to address complementarity effectively, and its secretariat can promote the exchange of information between those on the ground who can best identify complementarity needs with those in capitals most familiar with knowledge of available expertise and resources.

Nuremberg prosecutor @ ICC

On Thursday, August 25, in a courtroom at The Hague, an old hand took the podium for the Office of the Prosecution of the International Criminal Court.
Joining the closing argument in the ICC's 1st trial was our colleague Benjamin B. Ferencz, 91, who had served as Chief Prosecutor for the United States in the Einsatzgruppen Case, tried before the post-World War II Nuremberg Military Tribunals (below right). (credits for 2009 and 1947 photos, respectively, here and here)
Here is the transcript of the day's proceedings in Prosecutor v. Lubanga, a case on which IntLawGrrls have frequently posted. Ferencz's argument appears at pp. 50-53, and is reprinted in full below:

MR. FERENCZ: May it please your Honours. This is an historic moment in the evolution of international criminal law. For the first time, a permanent international criminal court will hear the closing statement for the Prosecution as it concludes its first case against its first accused, Mr. Thomas Lubanga Dyilo.
I witnessed such an evolution. As an American soldier, I survived the indescribable horrors of World War II and served as a liberator of many concentration camps. Shortly thereafter, I was appointed a prosecutor at the Nuremberg War Crimes Trials, which mapped new rules for the protection of humanity. I was 27 years old then. I am now in my 92nd year. Having spent a lifetime striving for a more humane world governed by the rule of law, I am honoured to represent the Prosecutor and to share some personal observations regarding the significance of this trial.
The most significant advance I have observed in international law has gone almost unnoticed. It is the slow awakening of the human conscience. In 1948, the Universal Declaration of Human Rights proclaimed inalienable fundamental rights of all members of the human family as a foundation of freedom, peace and justice in the world.
Countless human rights declarations have been made over many 10 years by many dedicated persons and organisations, but legal action to enforce those promises have been slow in coming. In Rome in 1998, when the Statute that binds this court was overwhelmingly approved, over a hundred sovereign States decided that child recruitment and forcing them to participate in hostilities were, and Iʹm quoting now from the Statute, ʺamong the most serious crimes of concern for the international community as a whole.ʺ
Punishing perpetrators was recognised as a legal obligation. What makes this court so distinctive is its primary goal to deter crimes before they take place by letting wrong‐doers know in advance that they will be called to account by an impartial international criminal court. The law can no longer be silent but must instead be heard and enforced to protect the fundamental rights of people everywhere.
The Prosecutorʹs office spoke at length meticulously detailing grim facts establishing the responsibility of the accused for the crimes alleged. The evidence showed that waves of children recruited under Mr. Lubangaʹs command moved through as many as 20 training camps, some holding between 8 and 1.600 children under age 15. But words and figures cannot adequately portray the physical and psychological harm inflicted on vulnerable children who were brutalised and who lived in constant fear. The loss and grief to their inconsolable families is immeasurable.
Their childhood stolen, their childhood stolen, deprived of education and all human rights, the suffering of the young victims and their families left permanent scars. We must try to restore the faith of children so that they may join in restoring the shattered world from which they came.
Imagine the pain of mothers crying and pleading at the door of the camps, still suffering and wondering what happened to their children. Picture the agony of the father who said, ʺHe is my first son. All of my hopes were laid on him. The child was ruined. Today he can do nothing in his life. He has abandoned his education, and this is something which affects me greatly.ʺ
All of the girls recruited could expect to be sexually violated.
All of these events which the Prosecution has carefully presented have been proved beyond reasonable doubt. Once again the case we present is a plea of humanity to law. It was a call for human beings to behave in a humane and lawful way. The hope of humankind that compassion and compromise may replace the cruel and senseless violence of armed conflict, that is the law as prescribed by the Rome Statute that binds this court, as well as the UN Charter that binds everyone. Vengeance begets vengeance. The illegal use of armed force, which is the soil from which all human rights violations grow, must be condemned as a crime against humanity. International disputes must be resolved not by armed force but by peaceful means only. Seizing and training young people to hate and kill presumed adversaries undermines the legal and moral firmament of human society.
Let the voice and the verdict of this esteemed global court now speak for the awakened conscience of the world.
Thank you.

Upbeat take on ICC record

Criticism of the record of the International Criminal Court is in no small supply, as a quick skim of our own posts will prove.
Thus it's worth noting the upbeat note struck last week by Sir Geoffrey Bindman QC, a London-based civil liberties/human rights specialist.
In a Guardian op-ed entitled "The international criminal court's task is monumental – and vital," Bindman:
► Acknowledged common complaints that the ICC process is too dilatory, noting that Prosecutor Louis Moreno-Ocampo (right) likely will have completed his 9-year term before the court's 1st trial, Lubanga, comes to an end;
► Pointed to the apparently swift work of investigators in the Libya situation as promise of change afoot; and, most significantly,
► Enumerated why, in Bindman's view, "the problems of the ICC are structural and inherent in the magnitude of its task."
Well worth a read.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

'The whole trial has been a nightmare since the disputes between judges and the prosecutor began in 2008. ... There appears almost a breakdown between the two sides.'

-- Our colleague William A. Schabas (below right), Professor and Director of the Irish Centre for Human Rights, National University of Ireland-Galway, in yesterday's New York Times article by Marlise Simons, entitled "For International Criminal Court, Frustration and Missteps in Its First Trial." Blogreaders will recognize the subject of Simons' critique as the on-again/off-again ICC proceedings about which we've frequently posted -- the trial of Congolese militia leader Thomas Lubanga Dyilo for illegal recruitment of child soldiers. Problems cited include:

► The "'ugly and healthy'" relations, as Schabas termed them, between judges and the prosecution, stemming out of an evidentiary dispute that implicates the due process rights of the accused.

► Continuing doubts about the strength of the case -- about whether "'all this time and effort was worthwhile,'" in the quoted words of Lorraine Smith, who's monitoring for the International Bar Association.

► The decision of the prosecution not to press charges of sexual crimes, a complaint voice by IntLawGrrls guest/alumna Brigid Inder, the Women's Initiatives for Gender justice representative who posted on the issue a while back.

Scarcely a welcome account on the same day that trial #2 commenced, against Jean-Pierre Bemba.

Breaking News: The OTP Prosecutor Dodges Another Bullet

The ICC Appeals Chamber, with Judge Sang-Hyun Song (Korea) presiding (above right)), ruled today that Thomas Lubanga Dyilo (above left) should not be released on account of the prosecutor's failure to comply with a court order to reveal the identity of an informant ("intermediary 143").

If you recall, on July 8, 2010, a Trial Chamber ordered a stay of the proceedings; a week later, it ordered the defendant's release. (See our prior coverage here & here).

Judge Song ruled today that while it was undisputed that the Prosecutor did not comply with a court order, releasing the defendant was not the appropriate remedy. Rather, the Trial Chamber should first impose sanctions on the Prosecutor to bring about compliance. He explained:

Sanctions are a key tool for Chambers to maintain control of proceedings within the trial framework and to safeguard a fair trial without having to have recourse to the drastic remedy of staying proceedings.

The full opinion is available here.

Outsourcing Investigations: The ICC and Intermediaries

The International Criminal Court’s first trial is once again on the verge of coming to an abrupt end before the completion of the proceedings. The defendant, Thomas Lubanga has again been ordered released, and the Office of the Prosecutor (“OTP”) is again appealing that order. (Prior IntLawGrrls posts) It’s déjà vu all over again – and why? For the second time, because of the controversial role of intermediaries in building the prosecution’s case.
What’s all the hubbub about? IntLawGrrl guest/alumna Yvonne McDermott's earlier post provides the details, but the big picture is this: the OTP has been using third parties to assist it in conducting its investigation of the situation in the Democratic Republic of Congo (“DRC”). These third party intermediaries include organizations like MONUC (the UN Mission in Congo) (emblem below left) that have long been involved in investigating the atrocities that have occurred in the conflict there. In June 2009, the OTP was unable to disclose evidence as ordered by the court because of confidentiality agreements with the third parties who provided the evidence; now, the OTP has not identified an intermediary whom witnesses have claimed encouraged them to provide false testimony.
In my recent article, Outsourcing Investigations, I assessed the benefits and risks that come with using third parties as intermediaries in an international criminal investigation.
On the one hand, it makes enormous sense for the OTP to make use of the contacts that MONUC and other IGOs and NGOs already have with victims and witnesses in the DRC and to take account of the evidence they have already uncovered. These organizations know the country, the situation and the involved parties very well. They have already carried out their own investigations and produced their own reports on the war crimes and crimes against humanity that the OTP began investigating far more recently. The OTP is also no competition for MONUC in the size and scope of its investigations, particularly since it has adopted a targeted and sequenced investigations policy that deliberately limits its investigations’ aims and resources. Due to all of these factors, the OTP has relied on the work done by third party intermediaries at a minimum as the basis for selecting the incidents on which it has focused, making initial contact with the witnesses the third parties have already interviewed, and obtaining and reviewing any evidence they have already secured.
But this reliance creates problems: problems with reliability, credibility, equality of arms, the right of the defense to confront witnesses, and confidentiality. The Lubanga case has demonstrated that these problems are very real. And the Lubanga case is not a one-off: similar questions have emerged in at least one other DRC case. Unless the OTP radically changes its investigations strategy and the amount of resources it puts into its investigations, it will continue to need intermediaries. But unless the OTP changes its approach to using intermediaries, the problems that have arisen in the Lubanga case are not going to disappear on their own.
Accordingly, the OTP needs to develop a more effective set of policies and practices for dealing with intermediaries. At a minimum, it needs to reach agreements with intermediaries in advance that will permit the disclosure of evidence and of sources of evidence that is necessary for the defendant to have a fair trial. In Outsourcing Investigations, I suggest two approaches that could help the OTP maximize the benefits and minimize the risks of using intermediaries:
► (1) The OTP could draw experts into its investigations from the UN mission and other IGOs and NGOs operating in the area and/or
► (2) The OTP could develop a detailed set of guidelines for intermediaries to follow in carrying out their investigations.
By taking either or both of these steps, the OTP could maintain some control over the methods of the investigation and thereby maximize the reliability of the evidence it obtains as well as the transparency of its provenance.

Abuse of process & the ICC trial in Lubanga

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

As is well known to readers of this blog, the first trial of the International Criminal Court, respecting charges that Congolese rebel leader Thomas Lubanga Dyilo (left) had recruited child soldiers, was delayed back in 2008 because the Prosecutor’s failure to disclose exculpatory materials rendered the fair trial of the accused impossible. Late in that year a resolution was reached, and the ICC trial commenced in January 2009. (photo credit)
Difficulties in the proceedings did not, however, end.
To the contrary, the first prosecution witness raised eyebrows and paved the way for what was to become the singlemost controversial issue in the trial to date: the pretrial conduct of 'intermediaries', non-ICC employees who interviewed potential witnesses in the field on behalf of the Prosecutor.
The first witness testified that his initial statement was untrue and that he had been trained what to say by one of the prosecution intermediaries. This testimony later was recanted. But as summarised in the Decision on Intermediaries (Trial Chamber I, 15 May 2010), several later witnesses provided similar accounts of promises in exchange for giving fabricated accounts of having served as child soldiers. In that decision, the Chamber ordered the disclosure of further details on some intermediaries who were already known to the Prosecutor. Crucially, the disclosure of one intermediary, P-143, was ordered, pending protective measures.
The P-143 disclosure order-- and the issues it raises in the context of the "abuse of process" doctrine that has emerged out of the jurisprudence of the ad hoc international criminal tribunals -- is the crux of this post.
Before discussing the P-143 order further, however, it is important to note another ruling, Decision on the press interview with Ms Le Fraper du Hellen, issued on the same date. In that ruling, Trial Chamber I took serious issue with an interview in which a member of the prosecution team inter alia insinuated that the accused, Lubanga, had intimidated witnesses while they testified. The Chamber, which comprises Judges Adrian Fulford (Britain) (far right), Elizabeth Odio Benito (Costa Rica) (middle right), and René Blattmann (Bolivia) (near right), said that the remark by the interviewee

involved a clear imputation against the judges.

The Chamber further held that the interviewee had “seriously intruded” on the role of the Chamber, in a way that prejudged the outcomes of the abuse of process issue and the trial itself.

The Press Interview decision is significant in that it points to the emerging pattern of frustration over the conduct of the prosecution. An apex was reached on 8 July, when Trial Chamber I granted another stay of proceedings on account of the Prosecutor's failure to comply with the Decision on Intermediaries.

The Chamber based this stay on two grounds:

► Disclosure of P-143 had not been carried out as ordered, even though the ICC Victims and Witnesses Unit had expressed confidence that the limited disclosure agreement reached would protect the safety of P-143; and

► It appeared that the Prosecutor was operating in accordance with his own interpretation of the Rome Statute. The Prosecutor, Trial Chamber I underscored,

declines to be 'checked' by the Chamber.

Whether the Prosecutor’s delay in following orders stands as an abuse of process in and of itself is debatable. A stay of proceedings stemming from an abuse generally only stems from the most exceptional of circumstances, and specifically for prosecutorial misconduct, when a court is convinced that a suitable caution could not cure the prejudice. It is notable that the current stay arose not from an abuse of process motion from the defence, but from the Chamber itself, as a Decision on the Prosecution's Urgent Request for Variation of the Time-Limit to Disclose the Identity of Intermediary 143 or Alternatively to Stay Proceedings Pending Further Consultations with the VWU.
Speaking for the trial panel, Judge Fulford further had indicated that, pursuant to Article 71 of the ICC Statute, Trial Chamber I would consider sanctioning the Prosecutor at some later date:

'The Prosecutor has failed to implement two of the Chamber's orders; those of 7 July, 2010. For the reasons set out in the decision imposing the stay, this constituted a deliberate and in our judgment, wholly unjustified refusal to comply with the directions of the Court. ... [However, i]t is fair that the issue of sanctions should await the outcome of the appeal.'

Despite the stay, the accused remains in custody. At July's end, citing a risk that the defendant might flee, the ICC Appeals Chamber suspended an order to release Lubanga that Trial Chamber I had issued mid-month.

Meanwhile, developments in Lubanga are beginning to affect another case arising out of the ICC's Situation in Democratic Republic of the Congo.
In the background to the drama of the Lubanga stay, defendants in Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui have continued to express their discontent, asserting that they are affected by the same issue of intermediaries. Accordingly Trial Chamber II, in its mid-July Ordonnance urgente relative à la mise en oeuvre de mesures de protection, ordered that the Victims and Witnesses Unit provide a report on the safety situation of intermediary P-143, the central figure in the Lubanga stay. It may be presumed that the Unit's confidential report will reiterate its assertion in Lubanga that the limited disclosure, as ordered, would not place P-143 under threat. If so, stays of proceedings -- as well as consideration of prosecutorial misconduct -- may be forthcoming in the cases against Katanga (near left) and Ngudjolo (far left).

Whether the most recent finding of Trial Chamber I with respect to abuse of process in Lubanga will be upheld on appeal remains to be seen.

In 2008, the Chamber lifted its stay of proceedings at the point that the conditions of abuse no longer existed, due to the Prosecutor's assurances that he would disclose the material he had previously failed to reveal. Regarding the present situation, if the Prosecutor offered finally to release the identity of P-143 and promised to comply unhesitatingly with all orders of the Chamber, the stay could very well be lifted, and the trial would proceed.
If this were to happen, the Court would then have to examine what is, in my view, the real issue at hand. The real questions concern the intermediaries:
► Whether the intermediaries in fact were involved in encouraging false witness testimony; and
► If yes, whether the Prosecutor knew or should have known about this.
If both points are answered in the affirmative, and another stay is therefore granted, it is difficult to imagine how the abuse of process could be remedied. The prosecution's case is closed, and all of its witnesses have been heard. The result in such a scenario could very well be “third time lucky” -- permanent release for Lubanga.

Senier on Lubanga

Kudos to IntLawGrrl Amy Senier!

Amy (left) just published the ASIL Insight on a case before the International Criminal Court; the commentary's entitled "The ICC Appeals Chamber Judgment on the Legal Characterization of the Facts in Prosecutor v. Lubanga." Her final thought:

[T]he Prosecutor can rest assured that his authority to charge individuals before the ICC remains intact.

You can read from beginning to end of Amy's insightful Insight here.

The Interface of Two Principles: Complementarity & Ne bis in idem

(My thanks to IntLawGrrls for the opportunity to guest post.)

As many previous posts have commented, the International Criminal Court is founded on a principle of “complementarity.” This means that the ICC is a backup or default system of justice, complementary to national jurisdictions. The basic premise is that the ICC ordinarily will not take cases that are adjudicated in national courts.
One of the concerns expressed about the implementation of complementarity under the ICC statute is whether a state will have the prerogative of deciding which crimes to charge without running the risk that the ICC will minimize the state’s choice by prosecuting the same acts under the ICC statute. (See, e.g., Michael A. Newton, "The Complementarity Conundrum: Are We Watching Evolution or Evisceration," forthcoming in the Santa Clara Journal of International Law.) The primary question is this:

What happens if a state chooses to prosecute for an “ordinary” crime, such as murder or rape, rather than for an “international” crime, such as genocide, crimes against humanity, or war crimes?

Suppose, for example, that a state is prosecuting or has prosecuted an accused for multiple murders for a particular incident that also arguably was part of a widespread or systematic attack against a civilian population. Is the case inadmissible in the ICC, or could there be a prosecution in the ICC for crimes against humanity of murder?
Assuming that jurisdictional requirements are met, the issue becomes one of admissibility of the matter and, in the case of completed cases, also an issue of ne bis in idem, or double jeopardy. As set forth in Article 17 of the ICC Statute, a case is not admissible in the ICC if a state with primary jurisdiction is willing and able to proceed with the investigation and prosecution or if the accused was already tried for the conduct and a further prosecution is now barred under the ne bis in idem provision. There are exceptions, however, to the willing and able provision, and to the ne bis in idem bar, if the state prosecution was a “sham” trial aimed at shielding the accused from responsibility, or if it was an improper proceeding, lacking in independence or impartiality and inconsistent with bringing the accused to justice.
In a recent paper for a panel on the ICC and complementarity at a symposium on the future of international criminal justice at Santa Clara School of Law -- moderated by Santa Clara Law Professor and IntLawGrrl Beth Van Schaack -- I focused on the issue of cases already adjudicated in national courts and the impact of the ne bis in idem principle on complementarity.
(For an excellent treatment of complementarity and admissibility issues from the same symposium, see the article by IntLawGrrl guest/alumna Linda M. Keller, "The Practice of the International Criminal Court: Comments on 'Complementarity in Crisis,'" also forthcoming in Santa Clara's international law journal.)
The design of the ne bis in idem principle in the ICC statute is highly protective of state prosecutions and is expressly different from the statutes for the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, both of which permit greater control by the international tribunal than exists with the ICC. The definitions chosen for ne bis in idem in the ICC Statute foster the priority of States in initially prosecuting crimes, give states great leeway to prosecute after an ICC prosecution, and greatly limit the ability of the ICC to prosecute after a state adjudication of the facts. The application of the ne bis in idem provision is not settled, however. As detailed in my own forthcoming article arising out of the Santa Clara symposium, the ICC has yet to interpret the provision, although the Lubanga, and the Katanga and Ngudjolo cases have raised related issues that were ultimately rejected or abandoned.
A broad interpretation of ne bis in idem -- one that favors state prosecutions over ICC prosecutions -- would be more consistent with the language of the statute and the underlying principle of complementarity. How can we tell that the ICC ne bis in idem provision is designed to give great deference to state prosecutions? Ne bis in idem is commonly stated by reference to the text of Article 14(7) of the International Covenant on Civil and Political Rights, which states:

No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

One of the most common variations in drafting is the choice of defining “offense” as “conduct” or as “crime.” This simple variation in language carries enormous consequences. “Conduct” is construed broadly, while “crime” is construed narrowly. By means of Articles 17(1)(c) and 20 of the ICC Statute, the drafters at Rome chose to bar the ICC from conducting a subsequent prosecution if the same “conduct” had already been adjudicated in a State court system.
If we apply this to our initial question of a state prosecution of murder when the charge could have been a crime against humanity, the most likely result is that the murder prosecution would preclude an ICC prosecution for a more serious charge based on the same underlying “conduct.”
The ICC provisions are in stark contrast to the ne bis in idem provisions in Article 10(2)(a) of the ICTY Statute and Article 9(2)(a) of the ICTR Statute, both of which explicitly allow subsequent prosecution in the international tribunals if the State has prosecuted only for an “ordinary” crime. Because murder would be viewed as an ordinary crime in contrast to a crime against humanity, the ICTY and ICTR could go forward with a subsequent prosecution, but the ICC would be barred from doing so. In this way, states are given significant control over whether they prosecute a case or whether the ICC prosecutes it.
This is not to say that the extensive deference to State prosecutions is necessarily the best balance between national and international prosecutions. The deferential approach will potentially preempt ICC jurisdiction in cases in which one might argue that an international prosecution based on more serious crimes would result in greater justice. Significantly for the accused, the state-protective approach of the ICC Statute may result in multiple prosecutions for the same conduct. These concerns are not inconsequential, and deserve consideration from a policy and drafting perspective. With regard, however, to a concern that the ICC will minimize or override a state’s choice of what to prosecute, the ICC ne bis in idem provisions, as presently drafted, are highly protective, rather than preemptive, both of state prerogatives and of the principle of complementarity.

In Prosecutor v. Bemba, disturbing ICC decisions on gender-based crime

(Our thanks to IntLawGrrls for the opportunity to contribute this guest post)

Rulings by Pre-Trial Chamber II of the International Criminal Court in the case of Jean-Pierre Bemba Gombo (left) present a worrying development in the prosecution of gender-based crimes.
Twice now that Pre-Trial Chamber has refused to allow the Prosecutor to bring multiple charges of sexual violence to address the full range of harms experienced by victims of rape. The first refusal occurred in its June 15 decision confirming the charges against Bemba (prior IntLawGrrls posts); its second, in its recent decision to deny the Prosecutor’s request for appeal.
At the heart of the Pre-Trial Chamber’s reasoning is the idea that two charges sought by the Prosecutor to address crimes of sexual violence — torture and outrages upon personal dignity — are “in essence” the same as the single charge of rape. Such reasoning fails to appreciate that the elements of torture and outrages were drafted to capture harm distinct from the penetrative act of rape and to address different policy goals. This reasoning:
► minimizes the harm, impact, and purpose of the rapes suffered by the victims of these particular crimes;
► contravene a decade of jurisprudence by the ad hoc tribunals; and
► ignores the various provisions in the Rome Statute of the ICC that allow for the prosecution of sexual violence; the statute thus recognizes that gender-based violence, like other crimes, can be charged cumulatively to address different harms arising from the same criminal acts.
In its June 15 ruling, the Pre-Trial Chamber had confirmed charges against Bemba, including charges of rape as a war crime and crime against humanity. (Bemba, alleged President and Commander in Chief of the Mouvement de libération du Congo, was originally charged with eight counts of war crimes and crimes against humanity that Mouvement members committed in the Central African Republic in 2002-2003; the attacks included rapes perpetrated on a mass scale which, the Prosecutor alleged, were committed with such extreme violence and cruelty so as to amount to torture.)
However, the Chamber declined to confirm three counts that were also based on acts of sexual violence: torture as a crime against humanity, torture as a war crime, and outrages upon personal dignity. These separate charges of torture and outrages address, respectively, the pain and suffering experienced by the rape victims and their family members, as well as the victims’ humiliating and degrading treatment from the public and intra-family nature of the rape acts.
In addition to finding the Prosecutor had not provided sufficient notice to the Defence of the material basis for the charges other than rape, the Chamber reasoned that the counts of torture and outrages were “fully subsumed by the counts of rape.” In the view of the Chamber, these charges could therefore not be confirmed because they lacked a distinct element to the charge of rape; to allow them to go forward would be “detrimental to the rights of the Defence” because the Defence would have to confront “all possible characterizations.” Noting that Regulation 55 of the Regulations of the Court allows the Trial Chamber to modify the legal characterization of the facts, the Pre-Trial Chamber stated that the issue could be rectified at a later stage.
The Prosecutor submitted a request for leave to appeal the Chamber’s dismissal of the torture and outrages charges. Soon after, our human rights organization, the Women’s Initiatives for Gender Justice, requested, and was granted, leave to file an amicus curiae brief with the Court on the issue of cumulative charging and the rights of the accused.
Just a few weeks ago, on September 18, the Chamber issued its most recent decision, in which it refused to grant the Prosecutor’s request for leave to appeal, and reiterated that the facts presented by the Prosecutor “were in essence constitutive elements of force or coercion in the crime of rape, characterizing this crime, in the first place, as an act of rape.”
Written by Patricia Viseur Sellers (left), former Legal Advisor for Gender Related Crimes at the ICTY, the Women’s Initiatives’ amicus curiae brief argued that the Chamber misapplied the cumulative charging test that the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia had developed in Prosecutor v. Delalic. The practice of cumulative charging, which can occur until the end of trial, must be distinguished from due process violations arising from cumulative convictions, which may be pronounced by the judge upon a finding of guilt. Cumulative charges, as long as they are supported by sufficient evidence, are not inimical to the rights of accused because these rights are safeguarded throughout the trial. The Chamber’s approach also both appears to ignore the distinct crimes, articulated in the Rome Statute, under which an accused can be charged for sexual violence, and contradicts the Elements of Crimes, an instrument that states, in its general introduction, “a particular conduct may constitute one or more crimes.”
In this particular case, the Chamber’s narrow construction of the cumulative charging test resulted in the exclusion of certain sexual violence evidence with respect to certain categories of witnesses. For example, it is now unclear whether the Chamber will allow testimony from family members who were forced to watch their relatives being raped, even though the harm these individuals suffered is surely distinct from the harm of penetration as an element of rape. In the amicus filing by the Women’s Initiatives, Viseur Sellers compared the Chamber’s approach to the very different result reached by the ICTY Trial Chamber’s judgment in Prosecutor v. Furundžija (1998). There a witness who had been forced to watch the repeated rapes of another was held to have been the victim of torture.
On the issue of rape as torture, the International Women’s Human Rights Law Clinic at CUNY School of Law had proposed a separate amicus in Bemba, but the ICC's Pre-Trial Chamber II denied that request.
Taken together the two Pre-Trial Chamber decisions, while not binding on other pre-trial chambers, raise critical issues, all of these issues were discussed in the Women’s Initiatives’ amicus brief, for those concerned about gender justice at the ICC to monitor:
► As mentioned, the Pre-Trial Chamber's referred to the Trial Chamber's power to revise the legal characterization of facts under Regulation 55. As IntLawGrrl Susana SáCouto posted on Thursday, this issue has also surfaced in the Lubanga trial: there the Trial Chamber gave notice to the parties, after the prosecution had presented its case, that the Trial Chamber may recharacterize the facts to include charges of sexual slavery and cruel and/or inhuman treatment.
► There are concerns about the sufficiency of evidence the Prosecutor is required to put forward at the pre-confirmation stage with respect to sexual violence charges.
► Similarly, there are concerns about the Chamber’s duty under Article 21(3) of the Rome Statute to apply the provisions of the Rome Statute in a non-discriminatory manner.