Wednesday, July 25, 2012

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. 

Wednesday, July 18, 2012

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.”

Tuesday, July 17, 2012

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.

Friday, July 13, 2012

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.


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.


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.

Two New Warrants Issued By The ICC

By Stephanie Kammer

Today, the ICC Pre-Trial Chamber granted the Prosecutor’s requests for two arrest warrants: one for Sylvestre Mudacumura and another additional warrant for Bosco Ntaganda, already wanted by the ICC.

The warrant for Sylvestre Mudacumura charges him with ordering war crimes in the Kivu region of the Democratic Republic of the Congo during the period between January 20, 2009 and September 2010. These war crimes consist of attacking civilians, murder, mutilation, cruel treatment, rape, torture, destruction of property, pillaging, and outrages against personal dignity. Mudacumura is the alleged former Supreme Commander of the Democratic Forces for the Liberation of Rwanda-Forces Combattants Abacunguzi (FDLR-FOCA), a milita group operating in the DRC, which includes Rwandan former génocidaires who fled to the DRC after the Rwandan genocide.

The ICC also issued a second arrest warrant for Bosco Ntaganda, alleged former Deputy Chief of Staff of the Forces Patriotiques pour la Libération du Congo (FPLC) and alleged current Chief of Staff of the Congrès national pour la Défense du Peuple (CNDP). A previous warrant issued for Ntaganda in 2006 charged him with three counts of the war crime of enlisting, conscripting, and using children in hostilities. The second warrant for Ntaganda, issued today, includes war crimes - murder, attacks against the civilian population, rape and sexual slavery, and pillaging - and crimes against humanity - murder, rape and sexual slavery, and persecution.

Wednesday, July 11, 2012

Response to New York Times article, “Arab Uprisings Point Up Flaws in Global Court”

By Stephanie Kammer

In a New York Times article on July 8th, “Arab Uprisings Point Up Flaws in Global Court,” Lydia Polgreen concludes that “flaws” in the ICC allow authoritarian leaders in the Middle East, such as Bashar Al-Assad, to escape the ICC's jurisdiction. The article lists situations in the Middle East where the ICC has not investigated crimes by oppressive regimes: Yemen, Syria, and Bahrain. The article sees this “failure to act against some leaders challenged by the Arab Spring” as a shortcoming of the Court that could lessen confidence in the entire international justice system.

One of the major “flaws” the article identifies is that heads of states whose nations are not parties to the ICC's Rome Statute can commit crimes with impunity so long as they have strong allies who are permanent members of the UN Security Council. The most common way for the ICC to get jurisdiction over a situation in the territory of a state not a party to the Court is through a referral by the Security Council (the Security Council has thus far referred the situations in Darfur and Libya). Many Arab states are not parties to the Statute and many of them have close allies among the five permanent members of the Security Council. If a head of a non-state party is committing crimes in his own state, the situation will not be referred to the Court by the Security Council if his permanent five ally on the Council threatens to veto the resolution. However, the article incorrectly implies that there is no other way the ICC would ever have jurisdiction in these situations. In fact, under Article 12(3) of the Rome Statute, a non-state party can accept ICC jurisdiction through a declaration submitted to the Office of the Registrar at the Court. A new government in Syria could accept ICC jurisdiction, regardless of the Security Council. This would give the Court jurisdiction over Al-Assad. The Government of Côte d’Ivoire accepted ICC jurisdiction in exactly this way and former President Laurent Gbagbo is currently on trial for crimes against humanity. 

Declarations by non-state parties that they accept ICC jurisdiction, could become more prevalent as new Arab Spring governments begin to utilize them, even if they cannot invoke the rights and privileges of a State Party to refer the situation themselves. But as an interim step, such declarations would allow new governments to hold former oppressors accountable for their crimes, bringing justice to victims and stability to countries emerging from conflict.

The Court’s limitations in responding to Arab Spring situations is not a sign that the Court is flawed. Rather it reflects the reality that the ICC is not yet universally accepted. In fact, the Court is based on a treaty that the world designed so that it would be able to act independently of the Security Council. As the article points out, the ICC has focused its actions primarily in Africa. This is simply because so many African countries have joined the Court and asked it to investigation serious atrocity crimes. Now that Arab Spring countries are beginning to seek accountability and expect justice, the ICC will be able to respond to them as they form new governments. Once they are able to make declarations, the ICC will be ready to support justice or to help deliver it.

The article also raises a concern about US citizens being tried at the ICC as “no idle fear, given the human rights scandals that have exploded in Iraq and Afghanistan involving United States personnel.” The Office of the Prosecutor has made clear that the ICC "[does] not have jurisdiction with respect to actions of non-State Party nationals on the territory of Iraq. In Afghanistan, the Office of the Prosecutor has conducted a preliminary investigation which did not produce any evidence of crimes by American nationals. The preliminary investigation is not currently active, though it might resume if the situation calls for it. Most important, the ICC functions as a Court of last resort and, under the principle of complementarity, must defer its own action on any case where a state’s courts have the ability and willingness to try offenders nationally, as is true for the United States. 

The ICC only takes on the very most serious cases. This “gravity requirement” appears throughout the Rome Statute. The Preamble to the Statute mentions crimes, which “ deeply shock the conscious of humanity.” Gravity is one of the two requirements for the Court to admit cases (the other requirement is the previously mentioned complementarity principle). The Prosecutor also uses gravity as a criterion for deciding which cases to formally investigate. The Office of the Prosecutor defines it by factors such as: the scale of the crimes, the nature of the crimes, the manner of the commission of the crimes, and the widespread impact of the crimes. This makes it highly unlikely that any US action abroad would ever come under the ICC’s jurisdiction. 

Monday, July 02, 2012

AMICC Members Celebrate ICC’s 10th Birthday

By Audrey Kim
July 1st marked the 10th anniversary of the entry into force of the Rome Statute and the beginning of the International Criminal Court. As the first permanent international court with a mandate to investigate, charge, and try people suspected of genocide, crimes against humanity, and war crimes, the ICC is a critical achievement in the history of international justiceHere are some ways AMICC Members have been celebrating the Court’s 10th birthday:  

Citizens for Global Solutions is collecting messages of support for the ICC in its 10th Birthday card to the ICC , which will be sent to U.S. Ambassador Stephen Rapp, the head of the State Department’s Office of Global Criminal Justice. On July 17, Citizens for Global Solutions will be collecting signatures on a giant birthday card at the National Mall in Washington raise awareness about the ICC.  In addition to the birthday card, on July 14th it will hold a webinar “A Giant Step Towards 'Never Again:' 10 Years of International Justice” featuring former ICC Chief Prosecutor Moreno Ocampo and Ben Ferencz, Professor of International Law and former Nuremberg  Prosecutor.

Human Rights Watch Richard Dicker, a member of AMICC’s Steering Committee and  the director of the International Justice Program at Human Rights Watch, wrote an article in Foreign Policy “The Court of Last Resort”  that analyzes in-depth the development and progress of the ICC.

Amnesty International the international counterpart to AMICC member Amnesty USA has made a short video summarizing the first ten years of the Court. Marek Marczyński, Research, Policy, and Campaign Manager of the Amnesty’s International Justice Team, spoke at an international conference entitled “The 10th Anniversary of the International Criminal Court: Achievements to Date and Prospects for Future” on June 21, 2012. His remarks can be found here.  Furthermore, Salil Shetty, the Secretary General of Amnesty International published an op-ed piece on Al Jazeera. 

Other AMICC people have written op-eds to mark the 10th anniversary of the Rome Statute’s entry into force:

John Washburn, the Convener of AMICC, gave an insider’s perspective of the Court’s relationship with the US to IJCentral

David Scheffer, member of AMICC’s Steering Committee, law professor at Northwestern University and former US ambassador-at-large for war crimes issues, wrote an op-ed in the JURIST about America's Embrace of the International Criminal Court.”

Christopher "Kip" Hale,  Senior Counsel at the American Bar Association (ABA) Center for Human Rights, a member of AMICC, wrote an op-ed entitled “ICC Turns Ten: Measure of Justice” for the Huffington Post .

The ICC has made significant progress in the past 10 years, and it will continue to face challenges in the years to come. AMICC celebrates the Court’s 10th anniversary and will continue to encourage and support the US’s relationship with the ICC.