ICC Summer School in Galway

The Irish Centre for Human Rights at the National University of Ireland Galway is pleased to announce that the annual International Criminal Court Summer School will take place from 27 June – 1 July.

The International Criminal Court Summer School 2016

27 June – 1 July 2016, NUI Galway, Ireland

The annual International Criminal Court Summer School at the Irish Centre for Human Rights is the premier summer school specialising on the International Criminal Court. The summer school allows participants the opportunity to attend a series of intensive lectures over five days. The lectures are given by leading academics on the subject as well as by legal professionals working at the International Criminal Court. The interactive and stimulating course is particularly suited to postgraduate students, legal professionals, scholars, and NGO workers. Participants are provided with a detailed working knowledge of the establishment of the Court, its structures and operations, and the applicable law. Lectures also speak to related issues in international criminal law, including: genocide, war crimes, crimes against humanity, the crime of aggression, jurisdiction, fair trial rights, and the rules of procedure and evidence.

This year’s ICC Summer School will include a special session on victims at the International Criminal Court.

The list of speakers at the 2016 ICC Summer School includes the following:

Professor William Schabas (Irish Centre for Human Rights/Middlesex University);

Professor Anne-Marie de Brouwer (Tilburg University); Dr Fabricio Guariglia (Office of the Prosecutor, International Criminal Court); Professor Megan A. Fairlie (Florida International University); Paolina Massida (Office of the Public Counsel for Victims, International Criminal Court); Professor Ray Murphy (Irish Centre for Human Rights); Dr Rod Rastan (Office of the Prosecutor at the International Criminal Court); Dr Mohamed M. El Zeidy (International Criminal Court); Professor Donald M. Ferencz (Middlesex University); Dr Nadia Bernaz (Middlesex University); Fiona McKay (former head of Victims Participation and Reparations Section of the International Criminal Court) Dr Kwadwo Appiagyei Atua (University of Ghana and University of Lincoln); Dr Noelle Higgins (Maynooth University);
Dr Shane Darcy (Irish Centre for Human Rights).

An early bird registration fee of €400 is available for delegates who register before 15 April 2016, with the fee for registrations after that date being €450. The registration fee includes all course materials, all lunches and refreshments, a social activity and a closing dinner. A limited number of scholarships are also available. Please see the General Information section of our website for further information.

To register and for more information regarding the 2016 ICC Summer School, please visit our website at http://www.conference.ie/Conferences/index.asp?Conference=464, and follow us on Facebook or Twitter.

Should you have any queries, please email: iccsummerschool@gmail.com.

The Yugoslavia Tribunal also Engages in Debt Collection

Alongside yesterday’s very important judgment of the International Criminal Tribunal for the former Yugoslavia was a rather more pathetic manifestation of the fight against impunity. While the judgment was being issued, Security officials of the Tribunal, with the apparent assistance of the Dutch police, arrested French journalist Florence Hartmann. She is now in detention at the Tribunal’s prison. For a photo of her arrest, look here.

Florence Hartmann served as press officer at the Tribunal about a decade ago, When she left, she published a memoir entitled Paix et châtiment. The book referred to decisions of the Tribunal’s Appeals Chamber that were supposed to have remained confidential. After being tried and convicted of contempt of court, she was sentenced to pay a €7,000 fine. When she failed to pay the fine, the Tribunal converted the sentence into one of seven days’ imprisonment. She now has six more days to go, that is, unless the Tribunal applies its policy of early release after service of two-thirds of the sentence.

All of the international tribunals have wasted a lot of resources on prosecuting so-called ‘offences against the administration of justice’. The time and money these matters have consumed could have been usefully devoted to more serious cases involving genocide, crimes against humanity and war crimes.

It doesn't have to be this way. In the early 1990s, the International Law Commission conceived of an international court that would not concern itself with issues like contempt of court, perjury and tampering with witnesses, leaving thus to the national courts. If Florence Hartmann, or the others, really committed an offence against the administration of justice, it would make a lot more sense for them to be dealt with by domestic justice systems.

If this were the case, by the way, the door would be wide open to the European Court of Human Rights. It could address the human rights issues that arise including arbitrary detention, imprisonment for debt, and freedom of expression. But the International Criminal Tribunal for the former Yugoslavia lives in a little glass bubble where it is immune from supervision by the European Court of Human Rights.

Florence Hartmann’s arrest did not, apparently, take place on the territory of the Tribunal, but well outside its gates. Can it really be the case that United Nations security guards have the legal authority to arrest individuals on Dutch territory outside the premises of the Tribunal?

The Security Council resolution establishing the Tribunal gives it jurisdiction over ‘serious violations of international humanitarian law’. Publishing a book in France does not fit within this concept. That may explain why France has refused requests from the Tribunal to arrest Florence Hartman for non-payment of the €7,000 fine.

Nobody should be put in prison for failure to pay a fine. This amounts to arbitrary detention. If the offence merits a jail sentence, then impose one from the beginning. But if it only justifies a fine of a relatively modest amount, it should not then be converted into jail time for non-payment, If the Tribunal wants to collect the money, let it file a civil claim before a national court and attempt to seize the money from the bank account of its debtor. That’s what the rest of us have to do when we are owed money.

Did Karadžić get a fair trial?

Today, the International Criminal Tribunal for the former Yugoslavia (ICTY) will issue its judgment in the case of one of its most high-profile defendants, former Republika Srpska President Radovan Karadžić. When the ICTY was established, the Secretary-General of the United Nations noted that it was ‘axiomatic’ that those tried by the international tribunal would be tried in accordance with the highest international fair trial standards. The Karadžić case highlights just how challenging it is for the ICTY (and other international criminal tribunals like it) to ensure a fair trial in practice.

One of the issues that has blighted the Karadžić trial throughout its lifetime has been the non-disclosure by the prosecution of exculpatory materials by the Prosecution. Under Rule 68 of the Rules of Procedure and Evidence, the Prosecution is bound to disclose to the Defence any material in its possession that may suggest the innocence of the accused, affect the credibility of Prosecution evidence, or mitigate the guilt of the accused. As recently as last week, pursuant to Karadžić’s 107^th disclosure violation motion, the Trial Chamber found that the Prosecution had failed to disclose relevant evidence, but (as with its many previous findings of disclosure violations), found that no prejudice had been suffered by the accused and therefore declined to grant any remedies for this breach. Just yesterday, on the eve of the judgment, Karadžić’s legal advisor, Peter Robinson, reported that the defence had just received over 200 further pages of exculpatory evidence from the prosecution.

In a sense, the prosecution’s continued failure in fulfilling its disclosure obligations is unsurprising, given the sheer volume of the case. Over the course of the four-year trial, the testimony of 586 witnesses was received. Many of these witness statements were admitted in written form, with limited or no opportunity for cross-examination. Over 11,000 exhibits (totalling almost 150,000 pages) were received, and the transcript of the proceedings to date exceeds 45,000 pages. The prosecution has disclosed over 2 million pages of evidence. Moreover, the Tribunal has made extensive use of judicial notice of adjudicated facts – including, as I note in my book, such important facts as that Serb forces removed non-Serbs from certain areas, that these forces mistreated detainees in detention facilities, and that attacks were carried out on certain regions.

Karadžić has represented himself throughout the trial, assisted by a small team of support staff. While the Tribunal did overturn some of the Registry’s more restrictive decisions on the funding of Karadžić’s defence team, and did grant him additional time to prepare for trial, the defence team’s David has faced a prosecutorial Goliath. Most recently, the President of the Mechanism for the International Criminal Tribunals notified the UN Security Council that a prosecution team had been established to prepare for the anticipated appeal of Karadžić’s case. When Karadžić asked for funding to resource an equivalent defence team, his motion was denied as ‘purely speculative’ as there was no guarantee that the judgment would be appealed, despite the clear implications on the equality of arms before the Tribunal. 

Why should it matter that such high-profile accused persons get a fair trial? Aside from the fact that the Tribunals have already declared their procedures to reflect the highest standards of fairness, and that any derogations from fair trial practices may be utilised by domestic criminal justice systems as justification for their own shortcomings, the impact of fairness on the legitimacy and legacy of the Tribunals cannot be understated. Anything less than scrupulous protection of the rights of the accused allow the Tribunals’ detractors to declare their proceedings ‘show trials’, rigged against the defendants from the outset. With the stakes so high, and the cost of international justice so enormous, nothing less than the fairest of procedures will do.

The Bemba Trial Judgement – A Memorable Day for the Prosecution of Sexual Violence by the ICC

In this post, Niamh Hayes writes about the significance of the sexual violence aspects of the Bemba judgment. 

For interested observers of the ICC’s efforts to investigate and prosecute conflict-related sexual violence, there has been very little to cheer about over the last 14 years. Despite the broad range of sexual and gender-based crimes contained in the Rome Statute, Prosecutor Ocampo’s early failures to pursue evidence-led investigations and tendency to develop the theory of the prosecution case in the abstract led, unsurprisingly, to a very weak record on prosecutions for crimes of sexual violence. When Fatou Bensouda took over as Prosecutor, the attrition rate for charges of sexual violence at the ICC stood at over 50%, with fewer than half of all such charges successfully confirmed for trial. Those figures have improved under her tenure, particularly following the successful confirmation of all sexual and gender-based charges in the Gbagbo and Ntaganda confirmation decisions. She also spearheaded the development of the Office of the Prosecutor’s Policy Paper on Sexual and Gender-Based Crimes, which made some important recommendations about pursuing alternative modes of liability and selecting the most appropriate legal characterisation of the charges based on the evidence. However, as of yesterday, the ICC had never entered a conviction for crimes of sexual violence.

Today is a very good day for the Office of the Prosecutor. This afternoon, Jean Pierre Bemba Gombo was convicted of rape as a crime against humanity and a war crime, due to his failure as a military commander to prevent or punish such crimes committed by MLC troops under his effective control. This represents the first ever conviction for the crime of rape at the International Criminal Court. Although rape was charged in the cases against Germain Katanga and Mathieu Ngudjolo, and although the Trial Chamber ultimately concluded that the alleged acts of sexual violence had in fact taken place, Katanga and Ngudjolo’s individual criminal responsibility for those crimes were not proven to the satisfaction of the judges and they were both acquitted on those counts. Bemba is not only the first defendant to be convicted of rape as a war crime or crime against humanity at the ICC, he is also the first person to have been held individually responsible for violations of international criminal law committed during the 2002-2003 coup in the Central African Republic.

Bemba’s conviction also represents another first, not only for the ICC but for international criminal law in general. During the trial, the Chamber heard from Witness 23, a male community leader who was raped in front of his wife and children, and Witness 69, who was raped by two soldiers for protesting the rape of his own wife. The testimony of Witness 23 is powerful and heart-rending in its own right, but is also striking for its obvious parallels to the experience and testimony of female victims of sexual violence on issues such as psychological trauma, social stigma, rejection by family members and access to appropriate medical care to treat physical complications caused by the rape. Including this testimony to support the charge of rape was an important step in the ICC’s efforts to highlight and address all forms of sexual and gender-based crimes, including the commission of sexual violence against men, a crime which is habitually ignored even at the international level.

It is even more significant to realise that the Bemba judgement represents the first time in the history of international criminal law that sexual violence against men has been charged as the crime of rape (as opposed to crimes of torture, outrages upon personal dignity or cruel treatment) or that a defendant has been convicted of rape based on the testimony of male victims. The Bemba case will go down in history as a vital precedent on that basis alone, but it also represents a hugely important step in the ICC’s broader efforts to provide greater accountability for sexual violence crimes. Prosecutor Bensouda today reiterated her personal and professional commitment to that goal: “[w]here some may want to draw a veil over these crimes I, as Prosecutor, must and will continue to draw a line under them.” The inclusion of further allegations of male rape in the Ntaganda case and extensive allegations of sexual violence against civilians in the Ongwen case are important and welcome developments in that regard.

It is also worth highlighting the mode of liability in the Bemba case. Bemba was not accused of ordering or directly perpetrating sexual violence himself; he was accused of failing to prevent or punish crimes of sexual violence committed by Mouvement de libération du Congo (MLC) troops under his control. The judges found that Bemba, as President and commander-in-chief of the MLC, had the authority to exercise effective control over MLC troops, that he had knowledge of crimes which had been committed or were about to be committed by MLC soldiers, and that his failure to take necessary and reasonable measures to prevent, repress or punish such crimes directly contributed to their commission. In essence, Bemba was convicted for what he failed to do and for what he allowed others to do, rather than what he did himself.

This represents the first conviction for command responsibility under Article 28 of the Rome Statute. The ICC has struggled with more immediate forms of liability in other cases, particularly establishing responsibility for direct and indirect co-perpetration under Article 25(3)(a) or proving that sexual violence formed part of a common plan under Article 25(3)(d). Achieving a conviction for command responsibility is based on proving the knowledge of senior political and military leaders that crimes are being or may be committed, their failure to exercise effective control over forces under their command, and their failure to use their powers or authority to either prevent such crimes or submit them to the relevant authorities for investigation and prosecution.

Article 28 is therefore a powerful means of holding senior leaders accountable for creating a “climate of acquiescence” where serious international crimes can be committed with impunity. Bemba is the most senior military or political leader to be tried or convicted by the ICC to date, and it is worth remembering that he was arrested in Belgium in 2008 pursuant to a sealed warrant. While it may not be possible to accurately measure the deterrent effect of international prosecutions, it is comforting to think that, after today, senior political and military figures who have responded dismissively or permissively to allegations of sexual violence committed by troops under their command might find themselves experiencing a sudden zeal to be seen to effectively exercise their disciplinary powers, or at least a sudden rush of anxiety about their next European shopping trip. They most certainly should not sleep as soundly as they did last night. 

Supreme Court of South Africa finds Government's failure to arrest Bashir was unlawful

The Supreme Court of Appeal in South Africa issued a judgment earlier today on the failure of the Government to arrest Sudanese President Omar Al-Bashir last June. This judgment confirms an earlier decision, which found that the Government should have arrested Al-Bashir and transferred him to The Hague. 

The decision has some interesting things to say about immunity of sitting heads of state under international law. Following the International Court of Justice's position on this point, it declines to hold that there is an 'international crimes exception' to the immunity enjoyed by heads of state before foreign national courts. Instead, it finds that the domestic legislation - South Africa's Implementation Act - waives the immunity of heads of state or government. 

The wording of the Implementation Act does, however, contain a potentially important difference to Article 27 of the ICC Statute on irrelevance of official capacity. Section 4(2) of the the Act states that:

(2) Despite any other law to the contrary, including customary and conventional international law, the fact that a person—

(a) is or was a head of State or government, a member of a government or parliament, an elected representative or a government official; or

(b) being a member of a security service or armed force, was under a legal obligation to obey a manifestly unlawful order of a government or superior, is neither—

(i)  a defence to a crime; nor

(ii)  a ground for any possible reduction of sentence once a person has been

convicted of a crime.

This is essentially a reflection of Article 27(1) of the ICC Statute, except that the term 'defence' in the South African act is used instead of the ICC Statute's, arguably broader, term of 'exempt[ing] a person from criminal responsibility'. However, as Dapo Akande has previously noted, 'To say that official capacity does not exclude criminal responsibility is not necessarily to say that the person may not be immune from the jurisdiction of particular tribunals'. Crucially for me, there is no equivalent provision to Article 27(2) of the Statute in the domestic Act - this is the provision which states that: 

Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

In the absence of an equivalent provision in the South African Act, I am not convinced of the Court's conclusion that section 4(2) 'is a clear indication that South Africa does not support immunities when people are charged with international crimes.' Certainly, it does not support the invocation of official capacity as a defence to international crimes, but there is nothing in the Act that stops the accused from raising immunity as a bar to jurisdiction, which is an entirely different matter. The question of whether heads of state of non-State Parties are entitled to immunity, especially in light of Article 98(1) of the ICC Statute, remains far from fully resolved.