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.

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. 

AMICC Members Celebrate ICC’s 10th Birthday

By Audrey Kim
July 1^st marked the 10^th 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 justice. Here are some ways AMICC Members have been celebrating the Court’s 10^th birthday:  

Citizens for Global Solutions is collecting messages of support for the ICC in its 10^th 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 D.C.to raise awareness about the ICC.  In addition to the birthday card, on July 14^th 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 10^th 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 10^th anniversary and will continue to encourage and support the US’s relationship with the ICC. 

Who Is the New Prosecutor of the International Criminal Court? A Profile of Fatou Bensouda

ICC Prosecutor Fatou Bensouda.
Photo by Max Koot Studio

By Audrey Kim

On June 15, 2012, Fatou Bensouda was formally sworn in as the new Prosecutor of the ICC. She was elected in December 2011 by the Assembly of States Parties (ASP) for a nine-year term and replaces predecessor Luis Moreno Ocampo.

According to the Rome Statute, the treaty that governs the ICC, a Prosecutor must have (a) high moral character, (b) high competence and extensive practical experience in the prosecution of trial of criminal cases, and (c) excellent knowledge of and fluency in at least one of the working languages of the court. With her former position as Deputy Prosecutor of the ICC and credentials both on the national and international level, the ASP decided that Ms. Bensouda was the most qualified candidate for the position.

Born on January 31, 1961, Ms. Bensouda grew up in Banjul, the capital of the Gambia. She was born into a polygamous family, as her father had two wives. She grew up in a large family with more than a dozen siblings. Ms. Bensouda is married to a Gambian-Moroccan businessman and is mother to three children, one of whom is adopted.

In a recent interview, Ms. Bensouda explained that at a young age she decided to become a lawyer because of the domestic abuse she saw happening in her community. “It wasn’t happening in my immediate family, but in Africa, you live in communities and you see it…and there was always this innate feeling in me saying this shouldn’t happen,” she said.

Education: After studying law in the University of Ife in Nigeria from 1986 to 1987, Ms. Bensouda attended the International Law Institute in Malta from 1990 to 1991 and holds a Masters in International Maritime Law and Law of the Sea. She is the first Gambian international maritime law expert.

Career: Ms. Bensouda has had an extensive career, both at the national and international level, making her highly qualified for the position. Since 2004, Ms. Bensouda has been the ICC Deputy Prosecutor. Before her work in the ICC, Ms. Bensouda was a Legal Advisor and Trial Attorney at the International Criminal Tribunal for Rwanda (ICTR) from 2002 to 2004, of which she was later Senior Legal Advisor and Head of the Legal Advisory Unit. In 2002, she was briefly the General Manager of the International Bank for Commerce Limited in Gambia, and since 2000 she has been a member of the International Advisory Council of the International Board of Maritime Healthcare.

In her native Gambia between 1987 to 2000, she was successively Senior State Counsel, Principal State Counsel, Deputy Director of Public Prosecutions, Solicitor General and Legal Secretary of the Republic, and then Attorney General and Minister of Justice. It was during her work as Senior State Counsel from 1990 to 1992 that she attained her Masters in International Maritime Law. As Attorney General and Minister of Justice, she was constitutionally responsible for the control and supervision of all criminal prosecutions in the Gambia. During her tenure as Minister of Justice, she was also a delegate to the Economic Community of West African States (ECOWAS) in a series of meetings on the ECOWAS Treaty, the Western African Parliament, and the ECOWAS Tribunal.

As the first female and first African prosecutor of the ICC, Ms. Bensouda has received much attention and support, especially from the African Union (AU). The ICC has been criticized for focusing extensively on Africa, and Ms. Bensouda’s appointment is expected to alleviate the tensions between Africa and the ICC. In response, she remarked, “I am an African and I am very proud of that... I'm not going to discount it or dismiss it. But I think it is not because I am an African that I was chosen for this position… I am a prosecutor for 121 states parties and this is what I intend to be until the end of my mandate...”

Although she is supported by the AU, Ms. Bensouda has rejected the AU’s criticisms that the ICC implements selective justice against Africa. In the OpenForum conference in Cape Town, South Africa, she said, “With due respect, what offends me most when I hear criticisms about the so-called African bias is how quick we are to focus on the words and propaganda of a few powerful, influential individuals and to forget about the millions of anonymous people that suffer from these crimes … Indeed, the greatest affront to victims of these brutal and unimaginable crimes … is to see those powerful individuals responsible for their sufferings trying to portray themselves as the victims of a pro-western, anti-African court.”

In the courtroom, Ms. Bensouda projects remarkable calm and poise. She has a commanding presence and combines passion, sensitivity, and self-control. Furthermore, her thoughtful demeanor and ability to communicate clearly and eloquently are some of her strongest traits. Acknowledging Ms. Bensouda’s dedication to global justice and her strong personal character, many have expressed their support and high confidence in Ms. Bensouda’s leadership.

According to Richard Dicker, the international justice director for Human Rights Watch, “In Syria and other strife-torn countries over the past 10 years, the ICC has come to symbolize the last, best hope for justice. We look to Bensouda’s leadership to advance cases, build bridges with victims, and push countries to support its impartial application of the law to get the job done.”

ICC President Song has stated, “I am confident that her strong independent voice, legal expertise and genuine concern for human rights issues will contribute greatly to the continued fight against impunity."

Former Bush Official Urges Rollback of Anti-ICC Legislation to Ease US-ICC Cooperation

Writing in today's Washington Post, former State Department Legal Adviser under George W. Bush, John B. Bellinger III, urged US Congress to amend the American Servicememmbers' Protection Act (ASPA) to make it easier for the US to support "the court in cases where justice for international atrocities cannot be achieved through other means."

ICC in the Media, Update #65

Several exciting ICC-related events have taken place recently that have drawn the media's attention. As we reported earlier, Fatou Bensouda was recently sworn in as the International Criminal Court's new prosecutor. She is both the first African and first woman to hold the post. In the Libya case, four ICC staffers part of an official mission to meet Saif al-Islam Gaddafi have been detained in Libya. Reportedly one of the four, lawyer Melinda Taylor, was carrying documents relating to Libyan national security, as well as a camera.

The ICC has released a statement expressing hope that the individuals will soon be released, and the United Nations Security Council has expressed concern about the situation and urged Libyan authorities to immediately release the ICC staff members. In addition, President Judge Sang-Hyan Song of the ICC has released a statement demanding the immediate release of the four staff members.  Reportedly the four have been held under house arrest until Taylor answers the questions of the Libyan authorities. In the Ivory Coast situation, a hearing against Gbagbo originally scheduled for this week has been rescheduled for August 13 to provide the defense with more time to prepare their case.

In other news, the prosecutor has asked the judges for a sentence of 30 years for Thomas Lubanga, who was recently found guilty by the Court. The judges have yet to set a sentencing date for Lubanga. In the Kenya case, two of the four suspects have reportedly requested that the ICC schedule their trials for as soon as possible. Uhuru Kenyatta, a 2013 election presidential hopeful, and Francis Muthaura reportedly are the two requesting speedy trials. The ICC is scheduled to set the trial dates on July 13, 2012. In Malawi, last week Malawian authorities reportedly have said it won't host the African Union Summit because it does not want to host Omar al-Bashir, President of Sudan and indictee of the ICC. Photo credits: BBC, Voice of America, AFP. 

AMICC Celebrates the Swearing-In of Fatou Bensouda as the ICC’s New Prosecutor

ICC Prosecutor Fatou Bensouda with ASP President Tiina Intelmann

By Stephanie Kammer

This morning Fatou Bensouda made her solemn undertaking as the ICC’s new prosecutor, the Court's second. Ms. Bensouda was elected by the Assembly of States Parties to serve a term of nine years. The ceremony was held in open court, presided over by the President of the Court, President Sang-Hyun Song, and administered by the President of the Assembly of States Parties (ASP), H.E. Tiina Intelmann.

In her first speech as prosecutor, Ms. Bensouda vowed to continue championing the cause of victims, particularly children and the victims of gender crimes. Ms. Bensouda said that the Office of the Prosecutor (OTP) will work to find innovative methods of collecting evidence, which ensure prosecution while protecting the victims involved in these sensitive situations.

Ms. Bensouda, a Gambian lawyer, has served as the Court's deputy prosecutor for nearly eight years. Before joining the Court, Ms. Bensouda worked as a legal adviser and trial attorney at the International Criminal Tribunal for Rwanda and as a prosecutor in Gambia’s Ministry of Justice.

In an interview with Radio Netherlands, when asked about her mentors, Ms. Bensouda mentioned her mother and other women from her community including her sister. She went on to say, “It is important as an African to have girls see that there is a possibility that they can get to here. There’s always the belief that there’s only so much you can achieve coming from Africa and nothing more, like you’ve been given a handout and you should be happy. My example shows that this is not true, that the sky is the limit. There’s no glass ceiling for Africans, for all women actually….”

Indeed, Ms. Bensouda is an inspiration to us all. We congratulate her and look forward to her continuing contributions to global justice.

Two New AMICC Members: ABA Center for Human Rights and the Bellevue/NYU Program for Survivors of Torture

We are pleased to announce the recent addition of two new AMICC members: the American Bar Association Center for Human Rights, which recently launched its ICC Project, and the Bellevue/NYU Program for Survivors of Torture, NYU Center for Health and Human Rights. We are delighted that both organization have joined AMICC and are working closely with AMICC and its other 36 members to achieve a stronger and more productive relationship between the US and the ICC.

Here are brief descriptions of AMICC's two new members:

American Bar Association Center for Human Rights
The International Criminal Court (ICC) Project converts the ABA’s strong policies on the ICC into concrete action. Its mission is to strengthen, regularize, and broaden U.S. engagement with the ICC by creating dynamic forums where meaningful and sustained dialogue can occur on both practical and policy issues among and between the ICC and various American audiences. These initiatives will advance the field of international criminal law as well as enhance understanding and trust between the U.S. and the ICC.

Bellevue/NYU Program for Survivors of Torture, NYU Center for Health and Human Rights
The Bellevue/NYU Program for Survivors of Torture provides comprehensive medical and mental health care, as well as social and legal services to survivors of torture and war trauma and their family members.  In the past year alone we provided these multidisciplinary services to more than 750 people from 75 countries.  Since its inception in 1995, PSOT has developed an international reputation for excellence in our clinical, educational and research activities.  Our mission is to assist individuals and families subjected to torture and war trauma to re-build healthy, self-sufficient lives, and to contribute knowledge and testimony to global efforts to end torture.

Please join us welcoming these two new AMICC members as we continue to work to expand civil society support for the ICC in the US.