AMICC Welcomes the International Justice Project as its Newest Member Organization

Wanda M. Akin (IJP Co-Founder), Carine Bonduelle (IJP Program Officer), Luc Walleyn (Legal Representative for Victims in Lubanga), Afi Patterson, Esq. (IJP Volunteer), and Raymond M. Brown (IJP Co-Founder) at the 2012 List of Counsel Meeting in The Hague.

AMICC is pleased to welcome its newest member organization, the International Justice Project. The IJP joined AMICC on December 12 and is its 39th institutional member. AMICC is a coalition of NGOs committed to achieving through education, information, promotion and an aroused public opinion full United States support for the International Criminal Court and the earliest possible US ratification of the Court's Rome Statute.

The IJP, a 501(c)(3) nonprofit organization based in Newark, NJ, promotes and advances human rights through the rule of law. Through transitional justice mechanisms, it also provides holistic support to victims of the world’s most heinous crimes—genocide, crimes against humanity and war crimes. The IJP works across sectors and disciplines and at the local and policy levels to help victims heal and rebuild their lives. This unique and holistic approach incorporates individual criminal justice and accountability, advocacy, human rights, education, and health, and it allows the IJP to have long-lasting, sustainable effects.

The co-founders of the IJP, Wanda M. Akin, Esq. and Raymond M. Brown, Esq. are two of only 50 American lawyers who are List of Counsel at the International Criminal Court. Presently, they represent 11 victims in the Darfur situation and four victims in The Prosecutor v. Omar Hassan Ahmad Al Bashir, the case against the President of Sudan. The IJP supports the victims in this process, reaching out to those interested in participating in the proceedings and also to those who may not qualify for participation. To date, the IJP has identified and compiled data from hundreds of potential victims in the Darfurian Diaspora in Sudan, Chad, Netherlands, and the United States, including Arizona, Indiana, Maine, New Hampshire, New Jersey, New York, and Pennsylvania.

Learn more about institutional membership in AMICC.

ICC Acquits Mathieu Ngudjolo Chui of the DRC, Defendant in ICC's Second Trial, Due to Evidence

On December 18, 2012 Trial Chamber II of the ICC acquitted Mathieu Ngudjolo Chui, a defendant in the Court's second case, because it found that the Office of the Prosecutor had not proved his guilt beyond a reasonable doubt. Accordingly, the Trial Chamber has ordered the release of Ngudjolo Chui but he will continue to be held pending a decision on the request of the Prosecutor for an appeal. This verdict affirms the careful deliberations and consideration of the Court's judges for the evidence as well as their commitment to ensuring due process for defendants. The acquittal reminds us that the judges are an effective check on the Prosecutor and will not convict all defendants who are charged by the Court.

Ngudjolo Chui was charged with nine counts of war crimes and crimes against humanity, including murder, sexual slavery, inhuman treatment, the use child soldiers in hostilities, and unlawful attacks against civilians. He and Germain Katanga were joined in a single case for trial which began on November 24, 2009. The Trial Chamber recently severed the cases. The judges have yet to decide on the guilt or innocence of Katanga.

The verdict is currently available in French. Once an English version is available, we will post it to our website.

No Arrests and Little Progress on Darfur Cases, ICC Prosecutor Tells United Nations Security Council

ICC Prosecutor Fatou Bensouda briefs the UN Security Council on December 13th. UN Photo/Eskinder Debebe.

By Kirkland Green

On December 13, 2012 ICC Prosecutor Fatou Bensouda delivered the 16th report of the her office to the United Nations Security Council. It was her first report to the Security Council which in March 2005 referred the matter to the Court. The Prosecutor told the Council that ICC indictments have not put an end to atrocity crimes in the region, including underreported alleged widespread occurrence of sexual and gender based violence. 

Mrs. Bensouda urged the Council to take a greater role in preventing continuing atrocities by ensuring that states fully cooperate with the ICC. The Court has done its work in issuing arrest warrants pursuant to the jurisdiction granted by UNSC Resolution 1953. The Pre-Trial Chamber of the ICC has issued arrest warrants or summonses to appear for President Omar Al Bashir, Ahmad Harun, Ali Kushayb, Bahar Idriss Abu Garda, Abdallah Banda Abakaer Nourain, Saleh Mohammed Jerbo Jamus, and Abdel Raheem Muhammad Hussein. The Prosecutor said that the "justice process is an essential component of any strategy aimed at truly stopping ongoing crimes, by publicly exposing to the highest independent judicial standards the reasons why and how these crimes have been committed; who has been responsible for them; and how they must be stopped."

Mrs. Bensouda emphasized that “investigating the Darfur situation remains an enormous challenge for the Office.” She did note the assistance received from relevant state organizations such as the African Union and the League of Arab States in investigating alleged atrocity crimes in Darfur. However, the Prosecutor reported that Sudan is “nether prepared to hand over the suspects nor to prosecute them for their crimes.”  She also noted the failure of states such as Chad and Malawi to arrest Sudanese President Omar Al Bashir when he was on their territory, as they are obligated to do as ICC States Parties, and surrender him to the ICC. According to the Prosecutor, the Court has communicated to the Council instances of non-cooperation on the part of the Government of Sudan with the Security Council six separate times but has not received a meaningful response. 

The United States, as a permanent member of the Security Council, made a statement welcoming the Prosecutor's report: "Reversing the cycle of violence and impunity requires accountability for the perpetrators. The ICC’s prosecution of the architects of the atrocities in Darfur is crucial in that regard," said Ambassador Jeffrey DeLaurentis, Alternate Representative of the US for Special Political Affairs in the UN. "We continue to urge all States to refrain from providing political or financial support to those individuals [wanted by the ICC], and we will work to prevent any such support," he said at the meeting.

Progress has been made towards the case of The Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus for their role in the rebel attack on the African Union peacekeeping base at Haskanita, North Darfur. Banda and Jerbo appeared voluntarily before the Pre-Trial Chamber on June 17, 2010. That trial is expected to start in 2013, but has experienced some difficulty because defense material must be translated in Zaghawa, a language which has no written form.

Recent UN General Assembly Action on Palestine and Implications for the ICC

Following the overwhelming UN General Assembly (GA) vote on November 29 to accord Palestine non-member observer state status in its meetings we have revised our background paper on this issue

Palestine options at the ICC: The Palestine Authority (PA) could: 1) Attempt to become a State Party at the ICC by ratifying the Rome Statute and then refer crimes to the ICC; or 2) Remain a non-State Party but make a declaration accepting the Court's jurisdiction over a particular set of crimes. It is very important to recognize that in either option the PA would have to refer an entire situation or train of events to the ICC. This would permit the ICC Prosecutor to investigate or prosecute any crime within that situation allegedly committed by anyone, including crimes claimed to be by Palestinians against Israelis.

The State Party option would require the PA to ratify the Rome Statute and then present a document certifying the ratification to the UN Secretary-General. The Secretary-General is responsible for administering the Rome Statute. He would have to decide whether the PA was a state competent to ratify. Should he so decide, the Prosecutor and the rest of the ICC would be obliged to proceed as with any other State Party.

In the non-State Party option of a declaration of acceptance of jurisdiction followed by a referral, the Prosecutor would have to make the first decision on whether the PA was a state competent to make the referral. This decision could be challenged in the Pre-Trial Chamber by the PA, or by another state involved in the situation giving rise to the referral, such as Israel. The PA has in fact already tried this option by submitting a report of crimes and declaration of acceptance of jurisdiction to the ICC Prosecutor in 2009. In April, 2012, the Prosecutor released a decision that at that stage he was not empowered to decide on the PA's statehood status. A UN body such as the Security Council or the General Assembly, or the ICC's Assembly of States Parties, would have to make this determination. Since the GA's recent action, the press has reported that the current Prosecutor is giving the declaration further consideration.

Please refer to our background paper for full descriptions of the processes involved in both options.

Prospects for next steps by the PA: The PA has recently said that it does not plan any immediate actions at the ICC. Should it eventually resort to the Court, its interest would apparently be in asserted illegal Israeli occupation of the West Bank. The Authority has also recognized American threats to cut off aid if it brings charges at the ICC.
 
Implications for advocacy: A bipartisan group of senators have said that they will introduce legislation to make good on those threats. Statements by its members such as senators Schumer (D., N.Y.) and Graham (R., S.C.) have included familiar misunderstanding about the Court, such as that it can try enlisted service members. If ardent supporters of Israel and opponents of the Court converge over this issue, we will have a new and formidable challenge.

AMICC's Final Report on the ASP 11 in The Hague

US Ambassador-at-Large Stephen J. Rapp, Office of Global Criminal Justice, speaking in The Hague at the ASP's General Debate. Photo: ICC/SASP.

AMICC participated in the annual meeting meeting of the ICC's governing body, the Assembly of States Parties (ASP), in The Hague earlier this month. A final report on the session and issues important to AMICC is now available on our website.

At this session the ASP adopted a program budget for the Court for 2013, elected a Deputy Prosecutor and other officials, and held substantive meetings on the issues of cooperation and complementarity. Representatives from about 90 of the 121 States Parties, as well as observer states, including the United States, participated in the meetings. AMICC was one of many NGOs participating in the ASP. AMICC has been represented at all ASP meetings to date, in support of our advocacy as well as to inform our constituents and to engage with international civil society and Court leadership. At this session, AMICC attended official ASP meetings and relevant side events organized by NGOs, and disseminated live updates through social media outlets. These updates remain archived and available on AMICC’s Twitter feed and blog.

ICC's Assembly of States Parties, Meeting in The Hague, Is Set for Early Conclusion of Work



The ICC's Assembly of States Parties meeting, in The Hague.

 The International Criminal Court's governing body, having moved quickly through its work at its eleventh session here in The Hague, appears ready to finish the session tomorrow, one full day early. The session, which began on November 14 and completed both elections and a budget deal in its first four days, has completed most items on its agenda. Aside from some final details of several draft resolutions which occupy the agenda this afternoon, the ASP decided today that it will meet in plenary on Wednesday, November 20 at 3pm to adopt its reports and formally bring the session to a close. Here are some of the major developments since Saturday, when we last reported:

Plenary Session on Complementarity: Inspired by the interest in the issue of complementarity - the preference for and deference to domestic criminal prosecutions for atrocity crimes - following the 2010 Review Conference, the ASP scheduled a special plenary session featuring contributions from experts, Court officials, governments and representatives from NGOs. The ASP held a similar session on the issue of cooperation on Friday, November 16. Helen Clark, the former prime minister of New Zealand and current administrator of the UN Development Program, delivered delivered a keynote address about the role international development agencies, such as UNDP and others, can contribute to domestic capacity for dealing with ICC crimes. While recognizing the expectations for justice raised by the ICC as well as its limited capacity, Ms. Clark urged governments to take responsibility to deliver justice. The attorney general of Guatemala, a judge from the Special Court for Sierra Leone and the president of the International Center for Transitional Justice also made expert interventions.

Among the statements made by governments, Ambassador-at-Large for Global Criminal Justice Stephen J. Rapp spoke on behalf of the United States. He lauded the ASP's crucial discussion on both the policy and practice of complementarity. Ambassador Rapp highlighted the importance to governments - States Parties and non-States Parties alike - to strengthen domestic capacity in a manner that is both concerted and coordinated. Using the Democratic Republic of the Congo as an example, he emphasized that the US supports ICC prosecutions as well as national justice, in particular through:

- Funding support of complementarity;
- Using the tools of diplomacy to support complementarity;
- Providing technical and legal assistance to national systems; and
- Improving fugitive tracking efforts.

Ambassador Rapp also cited the establishment by the White House of the US government's inter-agency Atrocities Prevention Board (APB) which will ensure more accountability in US courts for atrocity crimes.

Working Group on Amendments: On Monday afternoon, the Working Group on Amendments - the ASP's standing body established to deal with proposed amendments to the Rome Statute - agreed to recommend that the ASP adopt an amendment to the Court's Rules and Procedure and Evidence. Once it is adopted tomorrow, the new Rule 132 bis will permit a single judge to perform the functions of a Trial Chamber for the purposes of trial preparation. The amendment was agreed by consensus and is expected to expedite ICC trial preparation.

2013 ICC Budget: The ASP's budget working group met this morning to finalize the agreement reached Friday on the Court's 2013 budget and to transmit the resolution and report to the ASP as a whole. Despite an effort by one government to change some language in one of the annexes of the budget, States Parties held firmly to the compromise budget of approximately 115 million Euros and refused to reopen any text for negotiation. The ASP will approve the budget at tomorrow afternoon's final plenary session.

Other Resolutions: The ASP will also adopt by consensus other resolutions, including on cooperation, complementarity, victims and the Independent Oversight Mechanism, a matter which has been deferred again until the next session. The omnibus resolution, which covers many subjects, has been pared down this year because some issues are now covered by stand-alone resolutions. According to the latest draft of the omnibus, the next ASP will be held November 20-28, 2013 in The Hague.

NGO Events and Activities: The ambitious ASP agenda has included many substantive and helpful contributions by civil society to the work of the ICC's governing body, including facilitating dialogue between NGOs and governments, and highlighting important issues such as the relationship between the ICC and the UN Security Council and a new initiative to adopt an international crimes against humanity treaty. AMICC attended and participated in many of these meetings, most of which drew significant interest and substantive discussion. In addition, several AMICC members have also been active at this ASP, including Human Rights Watch, CASIN (especially on Twitter) and the American Bar Association Center for Human Rights' ICC Project (and its delegate's article on funding international justice).

AMICC's reporting from The Hague ends today but will culminate in a final report, to be released on our website in early December.

Report from The Hague: ICC's ASP Elects Officials and Breaks Budget Stalemate

ICC President Judge Sang-hyun Song speaking at a tenth anniversary celebration for the ICC in The Hague. ICC-CPI photo. 

The eleventh annual meeting of the ICC's governing body, the Assembly of States Parties (ASP), in The Hague began earlier this week with a celebration of the Court's tenth anniversary at the Ridderzaal (The Knights Hall) in the presence of Queen Beatrix of the Netherlands. The ASP session moved quickly to the ICC's business and is set for a one-day break on Sunday, November 18 before the final four days of the session. AMICC has been participating in the session and meeting with delegates here as well as fellow NGO representatives. Here are some highlights from the first four days:

Reports from the ICC: Following the opening of the session on Wednesday afternoon with a speech by Senegalese President Macky Sall, the ASP in plenary heard reports from the Court's President, Prosecutor and Registrar as well as the Chair of the Board of Directors of the Trust Fund for Victims. The UN Legal Counsel Patricia O'Brien also made a statement on behalf of UN Secretary-General Ban Ki-moon.

Elections: The ASP elected by consensus five members of the ICC's Board of Directors of the Trust Fund for Victims and nine members of the newly-established Advisory Committee on Nominations. The ASP held three rounds of voting for the Deputy Prosecutor (Prosecutions) on Wednesday afternoon and two more on Friday. In the last round of voting it elected James Stewart of Canada to succeed Fatou Bensouda who became Prosecutor in June 2012.

General Debate - US Statement: On Thursday, the ASP dedicated the entire day to the General Debate in which governments, international organizations and NGOs were invited to make short statements on the theme of "the challenges ahead for the ICC." US Ambassador-at Large for Global Criminal Justice Stephen J. Rapp made a statement on behalf of the US in its capacity as an ASP Observer. He reiterated US support for all of the ICC cases and outlined the ways in which the US has supported the Court and the cause of international justice. In addressing what it means for the ICC to succeed in ensuring justice for victims, and what the US has done to contribute to this project and advance shared interests and values, he made the following points:

- It is essential that the fugitives who currently remain at large in the ICC's cases are apprehended and brought to trial, and that victims and witnesses are adequately protected.
- It is crucial that members of the international community continue to reinforce the legal norms and prohibitions that led to the creation institutions such as the ICC. He made a specific reference to the US government's inter-agency Atrocities Prevention Board.
- We must strive to improve our system of international criminal justice, including building solid jurisprudence, cooperation and legitimacy.
- We must all recognize that the ICC cannot and must not operate alone, highlighting the importance of the principle of complementarity and building of national judicial capacity.

Ambassador Rapp's speech is available on the ASP's website. The State Department also issued a speech in The Hague by State Department Legal Adviser Harold Koh on the State Department's website.

2013 ICC Budget: Agreement on the ICC's annual budget, which must be approved by the ASP, was expected to be the most contentious issue of this session, as it was at last year's. Through the skillful leadership of Sweden's ambassador, the ASP today achieved a compromise. While it is not expected to meet all of the ICC's needs, this deal means that there will not be a repeat of last year's effort on the part of several of the ICC's largest contributors to severely cut the budget. As such, the ASP will be able to focus on other issues, such as a substantive session on complementarity on Monday, just as it held a similar session yesterday on the question of cooperation.

When the ASP resumes its work on Monday, it will continue negotiations on several substantive resolutions, including on complementarity and cooperation, as well as of its "omnibus" resolution which serves as a catch-all for the issues that the Court and the ASP deal with. There will also be meetings and discussions on the future premises of the Court as well as possible amendments to the Rome Statute and the Rules of Procedure and Evidence. AMICC will continue to report primarily through its Twitter feed but will also share major developments through its blog.


AMICC Reports from the ASP in The Hague

Beginning on November 14, AMICC will participate in and report on the annual meeting meeting of the ICC's governing body, the Assembly of States Parties (ASP), in The Hague. AMICC has been represented at all ASP meetings to date, in support of our advocacy as well as to inform our constituents and to engage with international civil society and Court leadership. We will report in real time, through our blog and Twitter, and we will produce a final report on the session on issues relevant to AMICC.

There are several critical issues expected to arise at this session which are important to AMICC: the question of adequate financing of the Court by its States Parties; changes to the funding of the legal aid scheme; the election of important officials and experts; and the developing structure of and oversight by the Assembly. Because these issues are relevant to responding to criticism of the Court in the US and ultimately go to the long-term success of the ICC, AMICC has participated in the substantive drafting of many of the advocacy papers developed by thematic teams of the international NGO Coalition for the ICC (CICC). AMICC will confer with NGO colleagues on these issues in The Hague. We also plan to brief NGO colleagues on the US approach to the Court following the recent presidential election and to meet with representatives of the US government participating in the session.

Update on Cote d'Ivoire Case at the ICC and Related Domestic Proceedings

Former President of Cote d'Ivoire Laurent Koudou Gbagbo at his initial appearance at the ICC on December 5, 2011. Photo: ICC-CPI/Peter Dejong

By Kirkland Green

As AMICC has explained in its advocacy papers, the International Criminal Court has been investigating the Cote d’Ivoire situation since October 3, 2011. Although Cote d’Ivoire is not party to the Court, it accepted the ICC’s jurisdiction which means the Prosecutor could and did ask for permission from the Pre-Trial Chamber to examine alleged crimes there. The scope of the investigation now includes alleged atrocity crimes that occurred between September 19, 2002 and November 28, 2010. A year ago an ICC Pre-Trial Chamber issued an arrest warrant for former Cote d’Ivoire president Laurent Gbagbo for four counts of crimes against humanity. He is now the first former head of state to face trial at the ICC. There have been some delays in this case to determine if Gbagbo was fit to stand trial and the Court recently denied his request to leave The Hague while awaiting trial. There have also been developments in domestic cases dealing with related crimes.

Background of the Conflict

Divided by ethnic and religious lines, Cote d’Ivoire has been split between the north and the south since 2002. In November 2010, the sitting president Laurent Gbagbo refused to step down after losing re-election to former Prime Minister Alassane Ouattara. Despite pressure from various organizations, such as the African Union and the United Nations, Gbagbo refused to cede power. Subsequently, Gbagbo used security forces to “terrorize citizens in the country’s principal city, Abidjan, where more than 3,000 people were killed and uncounted were raped or mistreated.”

Domestic Justice Initiatives

The new leadership under Ouattara has committed to holding perpetrators of atrocity crimes accountable in domestic courts: “The murderers will be punished. The investigations are under way to shine the light on crimes…” On October 2, 2012 General Bruno Dogbo Ble, head of Gbagbo’s Republican Guard was the first individual to stand trial for post election violence in the country. He is currently charged with “a host of abuses that ‘likely constitute crimes against humanity.’” Also, Ivorian prosecutor Noel Dje Enrike Yahau has charged eight of Gbagbo’s top allies with genocide

Despite domestic initiatives for justice, both Gbagbo’s and Ouattara’s forces are alleged to have targeted “victims based on ethnicity and presumed political affiliation.” The Republican Forces of Côte d'Ivoire, who are loyal to Ouattara, are alleged to have committed various forms of violence. One of these includes an attack in Duekoue where hundreds of people thought to be supporting Gbagbo were murdered. Under Ouattara’s government, Cote d’Ivoire domestic prosecutions have come under criticism. So far no one loyal to Ouattara has been charged of atrocity crimes. Moreover, various analysts believe that the behavior of pro-Gbagbo forces do not meet the requirements of genocide, despite claims made by domestic courts. The head of the Cote d’Ivoire Coalition for the International Criminal Court (CI CPI) believes that Ivorian courts are not equipped to offer impartial justice.

ICC Developments

Although Cote d’Ivoire is not party to the ICC, it signed the Rome Statute on November 30, 1998 and accepted the Court’s jurisdiction three times. On September 26, 2012, the government adopted a series of bills to facilitate ratification of the treaty. The CI CPI and other members of Ivorian civil society believe that this is encouraging, but that more work is necessary to ensure impartial justice, such as increased ICC outreach to victims of atrocity crimes.

In The Hague, the Gbagbo case is proceeding slowly. Pre-trial judges postponed the confirmation of charges hearing, initially set for August, in order to allow for Gbagbo's health to be assessed. A few weeks later, the judges affirmed the validity of the government's acceptance of jurisdiction, rejecting an application to dismiss the case against Gbagbo.

Domestic courts have come under criticism for claims of victor’s justice. However, since the ICC has broadened the scope of its investigation to include alleged crimes that occurred since September 19, 2002, and the Prosecutor has vowed to "collect evidence impartially and independently," all perpetrators of atrocity crimes may be prosecuted. Moreover, Cote d’Ivoire government initiatives to ratify the Rome Statute may discourage any attempts to promote unfair justice.

AMICC Examines Remark in US Presidential Debate about Genocide Indictment

The ICC has not been an issue in the presidential campaign, though there has been interest about a remark made by candidate Mitt Romney in the last debate, focused on foreign policy, on October 22. Commentators and bloggers were interested in whether his remark signaled an openness to the ICC. In the segment on Iran, Mr. Romney said:

"Secondly, I’d take on diplomatic isolation efforts. I’d make sure that Ahmadinejad is indicted under the Genocide Convention. His words amount to genocide incitation. I would indict him for it. I would also make sure that their diplomats are treated like the pariah they are around the world, the same way we treated the apartheid diplomats of South Africa."

The statement raised several questions, including where such an indictment would be made. Mr. Romney's campaign clarified that he was referring to the "World Court" which, according to Talking Points Memo, the campaign aide believed could arrest Mr. Ahmadinejad. Twitter and foreign policy blogs have been abuzz with analysis of the statement, problems with it and the political context.

Here are a few points of clarification in light of Mr. Romney's statement:

Judicial Venue
- "World Court" usually refers to the UN's primary judicial organ, the International Court of Justice (ICJ) which deals with disputes between nations. While it could adjudicate claims regarding the Genocide Convention, as it did in the Serbia case in 2007, the ICJ can neither indict nor arrest individuals, as reportedly suggested by Mr. Romney's campaign.

- US courts, under federal law, as amended by the Genocide Accountability Act of 2007, Public Law 110-151 (December 21, 2007), allows for the prosecution of genocide in US courts if the crime is committed in whole or in part the US or if the offender is a US national, legal alien, habitual resident or is brought to or found in the US after the crime occurred. Incitement charges carry maximum penalties of $500,000 or five years imprisonment. Unless Mr. Ahmadinejad were brought to or found in the US, an indictment in the US is unlikely.

- The ICC does not now have jurisdiction over the territories or citizens of Iran or Israel, at least one of which would be required in order to bring a case against an Iranian national for statements intended to incite crimes on Israeli territory. If it did, the Prosecutor could not act without a State Party referral or permission from the Pre-Trial Chamber.

- In the absence of such jurisdiction, the ICC could not act without a referral from the UN Security Council - the near certainty of a veto by China or Russia makes this unlikely.

Alleged Crimes
- Incitement to genocide is one of the crimes under the Rome Statute (Article 6; Article 25(3)(e): "In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person ... [i]n respect of the crime of genocide, directly and publicly incites others to commit genocide").

- The factual accuracy of Mr. Ahmadinejad's alleged incitement has been the subject of fact-checking. The findings so far are unclear as to the circumstances and sources of his alleged statements about Israel.

At UN Security Council Open Debate on the ICC, United States Reaffirms Role of ICC, Cooperation

On October 17, 2012 the UN Security Council debated the promotion of rule of raw and the role of ICC. UN Photo/Rick Bajornas

At the first-ever open debate in the Security Council specifically about the ICC, US Ambassador to the UN Susan Rice recognized "that the ICC can be an important tool for accountability" and that "we've responded positively to informal requests for assistance" from the ICC. Read more.

The debate also featured statements by:

• UN Secretary-General Ban Ki-moon
• ICC President Judge Sang-Hyun Song
• ICC Office of the Prosecutor Jurisdiction, Complementarity and Cooperation Division Director Phakiso Mochochoko

ICC Prosecutions Coordinator Alex Whiting to Speak at Columbia on October 11

The Columbia University Institute for the Study of Human Rights, of which AMICC is a program, will present an event on Thursday, October 11 featuring a senior attorney from the International Criminal Court, Prosecutions Coordinator Alex Whiting. Whiting is responsible for managing and providing legal guidance and direction to all of the ICC’s prosecutions. At the event, he will discuss the work of the ICC's Office of the Prosecutor and assess its successes and shortcomings.

Whiting was previously a senior trial attorney at the UN International Criminal Tribunal for the former Yugoslavia. A former assistant U.S. attorney for the District of Massachusetts and a former trial attorney in the criminal section of the Civil Rights Division in the Department of Justice, Whiting is on leave from Harvard Law School where he is an assistant clinical professor of law. He holds a B.A. and a J.D. from Yale.

The event is co-sponsored by the Columbia Society of International Law and the Human Rights Institute.

Details: Room 106, Jerome Greene Hall, Columbia Law School, 435 West 116th Street. Free and open to the public. No RSVP required. Lunch will be provided. Questions & Answers to follow.

Learn more at amicc.org or download the event flyer.

New Poll: 70% of Americans Support US Participation in the International Criminal Court

Today the Chicago Council on Global Affairs released a report indicating that 70% of Americans believe that the US should participate in "[t]he agreement on the International Criminal Court that can try individuals for war crimes, genocide, or crimes against humanity if their own country won’t try them." This latest poll is consistent with past Chicago Council polls and others which have asked similar questions on US participation in the Rome Statute of the ICC.

AMICC's John Washburn Discusses US-ICC Relationship on WHYY's Radio Times

John Washburn, Christian Wenaweser, Stephen Rapp and Marty Moss-Coane at WHYY in Philadelphia. More photos on Facebook.

 
Today AMICC's John Washburn appeared on WHYY's Radio Times to discuss the first decade of the work of the ICC, along with US Ambassador-at-Large for Global Criminal Justice Stephen J. Rapp and Ambassador Christian Wenaweser of Liechtenstein and former president of the Court's Assembly of States Parties. All three are slated to speak later today at the Philadelphia Global Initiative on the Rule of Law: Celebrate - Reflect - Promote. The broadcast includes a discussion of the US relationship with the ICC.The Podcast is available here and and soon on iTunes.

AMICC Releases a New Paper, Q&A on "Deconstructing Lubanga, the ICC's First Case"

Thomas Lubanga Dyilo at his sentencing hearing on July 10, 2012. Photo: ICC-CPI/Jerry Lampen.

By Stephanie Kammer

The Lubanga case is a major step in the history of the International Criminal Court (ICC). Thomas Lubanga Dyilo is the first person to be tried, and also convicted, by the ICC. Future ICC judges will look to the Lubanga case to guide them in their decisions, and people outside of the Court will look to the trial to assess how the Court functions and how well it works toward ending impunity for the world’s most serious crimes.

Read more in Deconstructing Lubanga, the ICC's First Case: The Trial and Conviction of Thomas Lubanga Dyilo and the accompanying Questions & Answers. 

Preview of Upcoming International Criminal Court Cases, Activities and US Events

Then-ICC Deputy Prosecutor Fatou Bensouda at a news conference in Guinea in 2010. Photo by Joe Penney.

By Audrey Kim

This summer was full of milestones for the ICC: Prosecutor Fatou Bensouda was sworn in as the ICC’s new prosecutor, the ICC handed down its first sentence and decision on reparations in its case against Thomas Lubanga Dyilo of the DRC, and Mali referred the situation in its territory to the OTP for a potential investigation. This fall, the ICC will continue to make progress in its cases and in its role in the enforcement of global justice and the deterrence of atrocities.

Progress in Cases before the ICC

Since the entry into force of the Rome Statute on July 1, 2002, 16 cases in seven situations have been brought before the ICC. Earlier this year, the Court handed down its first verdict, sentencing order and decision in the case against Thomas Lubanga of the DRC. Other cases before the Court continue to progress at the ICC.

In the case against Lubanga, the Court will implement and enforce the reparations for victims. As this is the first time the ICC has issued a reparations decision, its execution will have significant implications for its relationship with victims and future reparations. The prosecution and defense will also have the opportunity to appeal the verdict against Lubanga as well as the 14-year sentence. The deadline for appealing the verdict is 30 days from August 31, the date that the official French transition was made available to the parties.

Also part of the situation in the DRC, the trial of Germain Katanga and Mathieu Ngudjolo Chui was concluded on May 23, 2012 when the defense concluded the presentation of its case. The judges have begun deliberations after 240 hearings and will issue a verdict in the near future.

On September 3, 2012 the trial of Jean-Pierre Bemba Gombo of the Central Republic of Africa resumed in Trial Chamber III. This is the ICC’s third trial, and it started in November 2010. The defense case started in August of this year. As the alleged President and Commander-in-Chief of the Mouvement de Libération du Congo, Bemba is allegedly criminally responsible for two counts of crimes against humanity of murder and three counts of war crimes of murder, rape and pillaging.

Although unconfirmed, this fall the ICC will also likely hold the confirmation of charges hearing in the case of Laurent Gbagbo, the former President of Côte d'Ivoire. He is charged with alleged co-perpetration of crimes against humanity of murder, rape and other sexual violence, prosecution, and other inhuman acts. The date of his confirmation of charges hearing was postponed from August 13, 2012 to an undetermined date to allow the state of his health to be assessed.

The situation in Kenya, which consists of two cases, has been the subject of much international attention. Opening of trials for the case of William Samoei Ruto and Joshua Arap Sang is scheduled for April 10, 2013 and on April 11, 2013 for the case of Francis Kirimi Muthaura and Uhuru Muigai Kenyatta.

In the case against Banda and Jerbo in the Darfur situation, Pre-Trial Chamber I confirmed the charges of war crimes and assigned the case to Trial Chamber IV. The date of the trial remains unconfirmed.

In the Libya situation, Libyan prosecutors have claimed that they will try Saif Al-Islam Gaddafi in national courts in the town of Zintan. Recent report indicate that Abdullah Al-Senussi, the former Libyan military intelligence chief, has been transferred from Mauritania to Libya. Both are wanted by the ICC for crimes against humanity of murder and persecution. There is concern over whether Libyan courts will conduct a fair trial. As this situation has been referred to the ICC by the UN Security Council, the UN will be closely following the situation and hopefully will ensure that the suspects are brought before the ICC. Yesterday, the US encouraged "the Government of Libya to maintain its cooperation with the International Criminal Court in accordance with Security Council Resolution 1970" and called on Libya, if it decides to conduct domestic trials, to "try [ICC suspect Abdullah Al-Senussi] fairly in full compliance with their international obligations."

The OTP will also make progress in its preliminary investigations and other potential cases that have been brought to its attention. Particularly regarding alleged crimes in Mali that were referred to the ICC on July 18, the OTP will likely announce whether it will open a formal investigation. A referral does not require the OTP to take the case, and the OTP will soon determine whether the situation is under the ICC’s jurisdiction and if it will act.

The ICC in International Politics

The ICC continues to establish itself as an international organization and to build political support for cooperation and arrests. The Court also enjoys a close relationship with the United Nations. Recently, however, the Court has been facing serious budget constraints imposed by its members. This situation is very grave because it reduces the Court’s resources just as its natural growth is speeding up. This will limit the functionality and effectiveness of trials, proceedings, and investigations at the ICC.

ICC President Song will report to the UN General Assembly at the UN Headquarters in New York in late October. Since 2005, the President of the Court has reported annually to the UN on ICC’s activities and progress in its cases, pursuant to the Negotiated Relationship Agreement between the ICC and the UN concluded on October 4, 2004. This is the formal basis of the mutual beneficial cooperation between the ICC and the UN. The President will likely address the progress of judicial proceedings and investigations and discuss further international cooperation with the UN and ICC States Parties.

In November and December, Prosecutor Bensouda will present biannual reports on the situations in Darfur and Libya to the UN Security Council at the UN Headquarters, New York. The situations in Darfur and Libya were referred to the ICC by the UN Security Council on March 31, 2005 and February 26, 2011, respectively. This is the first time that Mrs. Bensouda will address the UN Security Council as the new prosecutor. She will likely focus on the enforcement of ICC warrants and potential actions the UN Security Council could take to support the Court.

From November 14-22, the Assembly of States Parties (ASP) will hold its eleventh session in The Hague. This follows the 19th Session of the Committee on Budget and Finance on September-October 2012, which will address budget reductions. At the 10th ASP session last year, State Parties were primarily focused on budget issues and could not address other matters fully. Thus, much of the budget discussions will likely take place in the Committee on Budget and Finance and the subsequent Hague Working Group this year so the ASP will have more time and flexibility to discuss other issues important to the Court. AMICC is closely following the budget constraints at the ICC because this affects the ICC’s ability to be an effective, fully functioning court and this provides material for ICC critics in the US.

Also, it is expected that a Deputy Prosecutor for the ICC will be elected in November. The Prosecutor nominates three candidates for the position, and the Deputy Prosecutor is elected by a secret ballot by members of the ASP.

The ICC in the US

The ICC continues to be in focus in the US, particularly through the activities of civil society. Upcoming events demonstrate support for the ICC and commemorate its 10th anniversary:

On September 10, the Philadelphia Global Initiative will hold a conference on The Rule of Law: Celebrate-Reflect-Promote in Philadelphia. This conference is a response to the ABA’s call for education about the ICC. This conference will celebrate the 10th anniversary of the ICC in conjunction with the 225th anniversary of the signing of the US Constitution in Philadelphia. Speakers include US Ambassador for Global Criminal Justice Stephen J. Rapp and AMICC Convener John Washburn.

AMICC Convener John Washburn will speak at Through the lens of Nuremburg: The International Criminal Court at its tenth anniversary on October 4-5 in Nuremburg, Germany. This conference will mark the 10th anniversary of the entry into force of the Rome Statute and focus on the role of Nuremburg principles in the development of international criminal law and the ICC.

The Whitney R. Harris World Law Institute will host an international conference in St. Louis, Missouri on November 11-12, the International Criminal Court at 10. This conference will commemorate the ICC’s tenth anniversary and will focus on the Court’s progress, future, and US relationship with the Court. This event will take place right after the elections, which AMICC is closely following because of its implications on future US-ICC relations. Speakers will include ICC Judge Hans-Peter Kaul, ICC Judge Joyce Aluoch, US Ambassador for Global Criminal Justice Stephen J. Rapp, and AMICC Convener John Washburn.

On December 7, the Program on Human Rights’ Sanela Diana Jenkins International Human Rights Series will present One Decade of the International Criminal Court: Challenges and Possibilities in Stanford, California. This event will address current challenges and possibilities for the ICC, such as reparation, US-ICC Relations, and the crime of aggression.

Find more information on AMICC's Event Calendar.

Our thanks to Audrey Kim for researching and drafting this message.

Major Party Political Platforms and the ICC

The two major US political parties have recently completed their national party platforms which either mention the ICC or its cases. Both of the platform documents, adopted by the national conventions in Tampa and Charlotte, reflect the official positions of the national political committees on major issues. They will not necessarily dictate the positions of the respective candidates. AMICC has analyzed and compared the Democratic and Republican platforms from 2008 and 2012 on the issues of the ICC and international justice.

As in the 2008 platform, the Democratic platform does not explicitly mention the ICC. It does, however, repeat the commitment expressed in 2008 about bringing to justice those who commit genocide and war crimes. In a subsection on Africa, in the section titled "Strengthening Alliances, Expanding Partnerships, and Reinvigorating International Institutions," the platform even mentions an ICC case by referring to bringing "to justice those who commit mass atrocities, like Joseph Kony." The decision to refer to the Kony case in particular, which both the administration and members of Congress believe should be tried before the ICC, is likely a result of the public outcry over his alleged crimes. The decision not to include the ICC by name reflects the cautious, case-by-case approach of the Obama administration which would likely prefer not to debate the issue of the ICC with the most vocal elements of the Republican party which negotiated the Republican platform and remain hostile to the Court.

The Republican platform repeats the party's hostility to the ICC by rejecting its jurisdiction. However, there are some noticeable differences. First, in the section on "Sovereign American Leadership in International Organizations," there is no longer a specific reference to the American Servicemembers' Protection Act (ASPA); it has been replaced with the phrase "statutory protection for U.S. personnel and officials." This may signal a willingness to make changes to anti-ICC legislation, as argued by former Bush official and current Romney adviser John B. Bellinger III, in ways that better promote US national security interests. The second major difference is that the platform refers to the party's opposition to the Court in another section, on "American Sovereignty in U.S. Courts." The text of this section seems to conflate US participation in the ICC with the use of the law of other nations, or perhaps international law, in domestic proceedings. It appears to overlook several relevant circumstances. After all, the ICC is intended to encourage the investigation and trial of individuals in domestic court systems using national laws. In fact, Congress has passed bipartisan legislation to ensure that serious atrocity crimes do not go unpunished. In addition, the platform seems to be at odds with the views of Republican members of Congress, several of whom have recently introduced or co-sponsored resolutions or bills recognizing the jurisdiction of the ICC and urging that specific persons suspected of atrocity crimes be tried by it.

The two party platforms do not necessarily reflect the views of the presidential candidates or predict how they will act if elected. President Obama, if reelected, would likely continue his administration's cautious but open and thoughtful approach of "principled engagement" with the Court. This involves case-by-case interaction with and support to the the ICC and vigorous participation as an observer in the Court's Assembly of States Parties. President Romney would likely recognize the value of the ICC, its permanence and its potential for bringing to justice those who commit atrocity crimes, while also acknowledging the concerns raised by his party's platform. A Romney administration would have a lower-profile relationship with the Court, but would not regress to hostility. It would more quietly work with the Court on issues it considered in the US national interest and/or had been identified by Congress or public opinion. The ICC as such is unlikely to be a campaign issue, but specific country situations involving the Court may be.

Trust Fund for Victims, After Lubanga Conviction, To Implement ICC's First-Ever Reparations

By Stephanie Kammer



Yesterday the ICC issued, in the case of Thomas Lubanga Dyilo, its first-ever decision on reparations to victims under Article 75 of the Rome Statute. The Chamber's Decision establishing the principles and procedures to be applied to reparations is "deliberately comprehensive," a style which has become a kind of signature for many of the Lubanga Trial Chamber's decisions, including the verdict in the case.

The Trial Chamber emphasized the importance and uniqueness of reparations as a feature of the ICC. The reparations process focuses on considerations beyond the punishment of a crimes, such as rehabilitation and redress for victims. The Chamber explained that "the Court is mainly concerned at this juncture with the victims, even though the prosecution and the defence are also parties to the reparations proceedings."

Victims advocates wanted crimes of sexual violence considered during the reparations portion of the trial, even though crimes of sexual violence were not included in the charges brought against Lubanga. The Trial Chamber addressed this concern by treating reparations "in a broad and flexible manner, allowing ... the widest possible remedies for the violations of rights of the victims and the means of the implementation."

Among the Principles set out by the Chamber to guide the reparations process were:

- That reparations should be non-discriminatory and gender-inclusive.
- That reparations take into account the needs of all the victims, particularly children and victims of sexual or gender crimes.
- That reparations be sensitive to cultural variations and contexts.
- That priority be given to especially vulnerable victims.

The Chamber delegated most of the implementation of reparations to the Trust Fund for Victims (TFV). It determined that a new Trial Chamber should be constituted to monitor and oversee the work of the TFV. The Chamber endorsed a five-step plan put forth by the Trust Fund for implementation, which focused on outreach and involving victims at the local level:

(1) The TFV, the Registry, the OPCV, and the experts, should establish which localities ought to be involved in the reparations process.
(2) There should be a process of consultation in the localities that are identified.
(3) An assessment of harm should be carried out during this consultation phase by the team of experts.
(4) Public debates should be held in each locality in order to explain the reparations principles and procedures, and to address the victims' expectations.
(5) The collection of proposals for collective reparations that are to be developed in each locality, which are then to be presented to the Chamber for its approval.

One of the main practical questions facing the Trial Chamber was whether reparations should be collective or individual or some combination thereof. The decision opened with a discussion of the concerns expressed by non-governmental organizations, the legal representatives of the victims, the Registry, and the parties about the pros and cons of collective versus individual reparations.

The legal representatives for a group of victims submitted that the victims they represented did not have homogenous views on what constituted appropriate reparations and that "they should not be treated as a single group and instead they should be treated as individuals." The Chamber noted that this group was composed mostly of males. The NGO Women's Initiatives for Gender Justice, argued that individual reparations favored victims participating in the reparations process (the Chamber received eighty-five applications for reparations) over the large number of victims who did not participate in the proceedings. Women's Initiatives argued that reparations should reach unidentified victims, particularly women and girls. It could be gleaned from the decision that generally, collective reparations were favored by groups representing female victims but in certain cases female victims could also benefit from individual reparations, such as treatment for sexually transmitted disease. The Chamber noted that since Thomas Lubanga was found to be indigent, reparations will be financed by the Trust Fund for Victims, which tends towards collective reparations.

Suggestions by victims and victims groups about the form reparations should take seemed to fall into three categories: reparations to empower victims economically and to stimulate local economic development, reparations to help heal the physical and mental health of victims, and symbolically reparations like a memorial.

The Trust Fund for Victims welcomed its substantial role in the reparations process and hailed the decision as "a historic milestone for victims of international crimes." The Fund was set up by the ICC’s governing body, the Assembly of State’s Parties (ASP) in 2002 and currently has a total income of $5.5 million. $2.7 million has been set aside for grants in the DRC and Uganda.

Although the Chamber's decision is not binding on future cases, the principles and procedures set out may be used by future Trial Chambers where they are practicable. It is possible that in a future case, where a defendant has means, a Trial Chamber may order individual reparations, or a combination of individual and collective reparations.

AMICC Relaunches its Website, www.amicc.org

We are pleased to announce the launch of AMICC's new website, the latest improvement of many to our work since becoming a program of the Columbia University Institute for the Study of Human Rights (ISHR) late last year. The new site, still at www.amicc.org, is designed to better serve AMICC's constituents, as well as practitioners, academics and the general public, by providing more current information on the work of the ICC and through better organization. It remains a repository of information on the US relationship with the ICC and we hope it will continue to be a leading resource on this topic. It is the only site we know of dedicated solely to that relationship.

The new website would not have been possible without the valuable time and technical assistance of ISHR staff member Joe Kirchhof who completely designed and coded it from scratch. It is in HTML5, the latest version of this programming language, and based on a lightweight, custom PHP framework. Unlike the previous AMICC website, which was launched in 2002, the new one is better equipped to incorporate multimedia and social media. The design remains simple, and we have been sure to include all of the information that was on the old site. Some of it has been condensed.

An early sketch of the new website.

We have also taken the time to ensure that none of the old links have been "broken." For example, if you go to a bookmark of one of the old pages, it will take you to the corresponding new page; thus if you go to http://www.amicc.org/calendar (from the old site), that will automatically lead to http://www.amicc.org/about/calendar. If you have trouble finding what you are looking for, we hope that the enhanced top and side menus and search box will be of help.

The new site is also much easier for us to update and change in response to new developments. We consider it to be an ongoing work in progress that will benefit from the input of our partners. We encourage you to take a look at the new site and let us know what you think.

US Secretary of State Hillary Clinton Addresses Prevention of Genocide and Atrocities at US Holocaust Memorial Museum

By Audrey Kim 

On July 24, 2012 Secretary of State Hillary Clinton delivered the keynote address at “Imagine the Unimaginable: Ending Genocide in the 21st Century”  a symposium hosted by the United States Holocaust Memorial Museum in cooperation with the Council on Foreign Relations and CNN. The symposium focused on practical steps and challenges of preventing genocide.

When the Secretary of State outlined the US’s actions and steps to prevent atrocities, she mentioned several situations that are under ICC jurisdiction, such as Libya, Laurent Gbagbo of Cote d’Ivoire, and Joseph Kony of the Lord’s Resistance Army. Notably, she mentioned the International Criminal Court when she described how the Administration was acting on its commitment to the prevention of genocide and atrocities. 

"So if a government cannot or will not protect its own citizens, then the United States and like minded partners must act. But let me hasten to say this is not code for military action. Force must remain a last resort, and in most cases, other tools will be more appropriate through diplomacy, financial sanctions, humanitarian assistance, law enforcement measures.

The Administration has acted on this commitment. When the Qadhafi regime threatened a massacre in the city of Benghazi, we forged an international coalition to stop the assault. When Laurent Gbagbo violently clung to power in Cote d’Ivoire, we worked with UN partners to prevent the killing of innocents and to pressure him to relent. Now, he is standing before the International Criminal Court. When the Lord’s Resistance Army escalated its attacks against civilians and its brutal work of turning children into soldiers, we helped governments throughout Central Africa increase their efforts to go after the leaders, including Joseph Kony."

Secretary Clinton also focused on the role of the recently established Atrocities Prevention Board.

"We’re putting our elements of this strategy – prevention and partnership – into action through the Atrocities Prevention Board that President Obama announced here. Now, it might not be obvious that creating yet another government board will address a problem as entrenched as this. But the fact is a body such as this can drive the kinds of institutional changes that we envision. It can help galvanize efforts across our government to focus on prevention, to ensure that all our tools and resources are being put to good use."

In her speech, Mrs. Clinton emphasized the necessity of prevention of future genocides. “The United States and our partners must act before the wood is stacked or the match is struck, because when the fire is at full blaze, our options for responding are considerably costlier and more difficult,” she said. 

New State Party Referral to the ICC: Government of Mali Requests OTP Investigation

 Malian Minister of Justice, H.E. Malick Coulibaly and ICC prosecutor Fatou Bensouda  

By Audrey Kim 
On July 18, 2012, the Government of Mali referred “the situation in Mali since January 2012”   to the Office of the Prosecutor (OTP). Mali is a state party to the ICC, as it ratified the Rome Statute on August 16, 2000. A delegation from Mali led by Minister of Justice H.E. Malick Coulibaly transmitted a letter and supporting documentations to Prosecutor Fatou Bensouda, and the Government of Mali claimed that Malian courts are unable to prosecute or try the perpetrators. 

The referral by the Government of Mali is the fourth referral by an African State Party to the ICC. The Malian Cabinet decided on May 30, 2012 to refer the situation to the ICC, and the ECOWAS Contact Group of Mali requested the ICC to investigate the situation on July 7, 2012. 

Violence erupted in Mali on January 17, 2012, and the Prosecutor has been closely monitoring the situation in Mali. There are reported instances of killings, abductions, rapes, conscription of children, and the deliberate destruction of the shrines of Muslim saints in the city of Timbuktu. The OTP is immediately launching a preliminary examination of the situation in order to assess whether the Rome Statute criteria for opening an investigation are fulfilled. 

A Look into the Situation in Mali
Mali, a former French colony, was once considered one of the most stable countries and as a democratic model in West Africa. Mali has a long history of Tuareg secessionist rebellions and Islamist separatist groups.  

On January 17, 2012 the National Movement for the Liberation of Azawad (MNLA), which is predominantly Tuareg, launched rebellion attacks on Ménaka in North Mali, resulting in mass violence and many civilian deaths. The situation in Mali is linked to the downfall of Muammar el-Quadaffi, in Libya. The Tuaregs fought for Colonel Qadaffi when he struggled to stay in power, and after his death a flood of weapons bolstered the Tuareg rebels in Mali. 

On March 22, 2012 the Army overthrew the elected government of President Amadou Toumani Touré and Dioncounda Traoré was sworn in as interim president. The Army accused the elected government of not doing enough against the MNLA and the Islamist groups

Meanwhile, Tuareg rebels and Islamist groups seized much of northern Mali, including the historic city of Timbuktu.  On April 6, 2012, the MNLA proclaimed the independent state of Azaward in Northern Mali. 

In June and July, the Islamist group Ansar Dine destroyed religious shrines in Timbuktu, provoking international outrage. On July 1, 2012  Prosecutor Bensouda condemned the campaign to destroy religious shrines and said that “Those who are destroying religious buildings in Timbuktu should do so in full knowledge that they will be held accountable and justice will prevail.”

Convener's Comment: International Justice Day, Birthday of the International Criminal Court

 By John Washburn

The court which is our cause celebrates its 14th birthday and its life in full today. It has 121 member states, a third generation of judges, its second prosecutor and second president and its first verdict and sentence in the Lubanga case. In the middle of the night on July 17, 1998, a diplomatic conference adopted the Rome Statute, the treaty which created the Court. There have been other moments to mark and remember as the Court grew into full existence: the Statute's taking effect on July 1, 2002 after 60 countries had ratified it, the swearing-in of the first judges on March 23, 2003, and now the Lubanga verdict on March 14, 2012.

Yet it is right to make the agreement on the Rome Statute the birthday of the Court. There are moments in human affairs when circumstances make the seemingly impossible happen: a window in time, the sudden effect of a long summoning of will, the arrival of new actors and the coming together of many events in a single conclusion to act. July 17, 1998 was such a moment that in the words of the poet Seamus Heaney widely quoted on that day made "hope and history rhyme."

For those involved or at least aware then, this was an act of creation by women and men at their best and determined to make accountable through justice other men and women at their worst. There is something especially important to remember about these creators - so many of them, especially those serving non-governmental organizations - were young. At most in their twenties, they were intelligently practical in the service of idealism, interconnected electronically and by their principles. They transcended varieties of nationality, culture and origins. They will never forget Rome and now in their thirties and forties, some of them are our best friends and supporters. They are everywhere in the United States and we must find and bring more of them to us.

This was the generation that made and started the Court. Now there is another generation that will make it work to its full strength and preserve its mandate. One of the joys of AMICC's task is that we work with so many of them. They take the Court as a natural part of the lives of nations and of their own. They will have much to do - to make the Court reach further, to get the resources it needs for its now rapid natural growth, to see it governed well and above all to drive it to serve its joined and fundamental purposes of condemnation, justice and redress. Now, we move faster and harder with them toward a future - their time - that will bring our country to the Court.

Convener's Comment: The Sentencing of Thomas Lubanga Dyilo by the International Criminal Court

By John Washburn

The Lubanga verdict and sentencing decision have aroused considerable controversy and some inaccurate media coverage. This short briefer will give you background and talking points on the sentence to use immediately with questioners and for speaking. (Refer to our earlier Background Paper and Talking Points on the verdict.) We do not yet know whether there will be appeals. We will update you if appeals are made and again when appellate decisions are announced. Meanwhile we are doing a complete analysis of the verdict to give you a full picture of this history-making first ICC trial for your use over a longer time.

Background

Stories and comment about the verdict and sentence have focused on: the shortness of the sentence; only a single charge having been brought against Lubanga; the criticism of the Prosecutor in the decisions; and the slow progress of the trial.

The sentence was for 14 years. With six years off for time in detention, Lubanga will serve only eight years. The press has said that the European countries in one of whose prisons Lubanga is likely to serve may apply their own rules to reduce his remaining time to be served to only three or four years. Agreements between the ICC and countries offering their prisons all specify that they may not modify sentences.

Reliable reports by witnesses and victims had made it clear that the situations Lubanga had participated in almost certainly included a number of additional war crimes, especially sexual violence. The Prosecutor also vigorously referred to crimes of sexual violence in his opening and closing statements. There has been vocal disappointment that nonetheless the Prosecutor and the Pre-Trial Chamber had charged him only with the single crime of the recruitment of child soldiers and that the trial court seems not to have taken sexual violence into account in the sentencing.

It has taken six years since the ICC took custody of Lubanga to complete his trial.

Explanations

In arriving at the sentence of 14 years, the Court balanced off the gravity of the crime, the degree of the defendant's involvement, aspects that made the way the crime was committed especially bad, and circumstances in the status and behavior of the defendant that should affect his sentence. The Court decided that the crime was especially serious, but that Lubanga did not order, but participated in carrying out a plan which required, the recruitment of child soldiers. It gave credit to him for full cooperation during the trial and for having to endure the stress and delay caused by the Prosecutor's mishandling of evidence.

The Rome Statute requires the Court's sentences to be reduced by time served in detention. This is a common provision in the criminal law of many countries. The Statute also provides that only the ICC may reduce sentences. No country where Lubanga may be imprisoned can itself shorten his sentence.

The Prosecutor chose to use evidence immediately available to start prosecution and trial. That evidence supported only the charges of recruiting and using child soldiers. Although there was considerable testimony and statements in Court about widespread sexual violence against recruited child soldiers, the Trial Chamber decided that although the evidence proved that Lubanga shared responsibility for the recruitment, it did not establish that he was aware of the sexual violence. It is important to note that the Court did not decide whether or not Lubanga actually knew about sexual violence; it only said that the evidence offered was insufficient to prove that.

The trial judges severely criticized the Prosecutor in both the verdict and the sentencing decision. They made clear that his behavior in attempting to withhold evidence from the defense on the ground that it came from confidential sources and his handling of the issue of sexual violence had endangered the completion of the trial and its fairness to the defense.

As with anything done for the first time, this prosecution and trial encountered many surprises, gaps and new questions. These included numerous appeals, motions and trial court decisions on procedural and technical questions. Two appeals by the Prosecutor against trial court decisions to either require him to disclose evidence to the defense or to release Lubanga were especially time consuming.

Important Takeaways

- The sentence of 14 years resulted for a balancing by the Court of the established seriousness of the crime, Lubanga's indirect responsibility for it, and his cooperative and respectful conduct in the trial in the face of its length and delays. The Statute requires that sentences be reduced by time in detention.

- There was no charge of sexual violence against Lubanga, only a single charge of recruiting child soldiers. Although sexual violence frequently came up during the trial, the trial court said that there was no evidence that Lubanga knew that it was happening extensively during the recruitment.

- The trial court forced the Prosecutor to reveal improperly withheld evidence and refused to allow him to make his assertions of sexual violence a substitute for a formal charge and adequate evidence. It is clear that the ICC, contrary to American opponents' claims, will discipline prosecutors and hold them to account in trials.

- The case was delayed by the need for decisions, motions and appeals for the first time on unexpected technical and procedural gaps and surprises. A key outcome on this aspect of the trial is whether future trial courts will accept these decisions as settled precedents.