(Part II): Arusha & the ICC: What’s going on?

Part II:

This is a follow-up the my Blog posting on having attended the Regional Seminar of the International Criminal Court (ICC) held in Arusha, Tanzania.

As is often the case, the most interesting and captivating discussions are those that take place informally during breaks and after hours. In Arusha, the discussions included the recent unveiling of charges against Daniel Ongwen, a notorious Lord’s Resistance Army Commander, the war crimes prosecution of Ahmed Al Faqi Al-Mahdi for attacking historic monuments and buildings in Mali, and the impending judgment in the long running trial of Jean-Pierre Bemba, a former VP of the DRC, accused of war crimes and crimes against humanity.

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The al-Mahdi case is historically significant as it focuses solely on the war crime of intentionally directing attacks against “cultural property”. The deliberate and wanton destruction of historic mausoleums and buildings dedicated to religion caused severe harm to the religious practices, historical heritage, and cultural identity of the people of Timbuktu, Mali, and African heritage. The Prosecutor claimed “the loss of such irreplaceable physical embodiment of history and culture was felt by the whole of humanity, and at the expense of future generations. This case underscores the seriousness of such crimes, and the necessity to hold perpetrators accountable.”

The ICC Prosecutor has subsequently revealed that on March 1, 2016, Mr al-Mahdi explicitly expressed before ICC Judges and in the presence of his lawyers, his wish to plead guilty. He did so during the course of the confirmation of charges proceedings, at a point where the proceedings were in closed session. This has now been made public.

The al-Mahdi case is also the first time that a suspect has expressed his intention to plead guilty to criminal conduct for which he is being prosecuted by the ICC; an admission of guilt, provided for in article 65 of the Rome Statute.

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In the days following the Arusha meetings, the International Criminal Court (ICC) has found Jean-Pierre Bemba guilty of war crimes and crimes against humanity committed in Central African Republic more than a decade ago. The verdicts focused on the responsibility of a military commander for the actions of his troops, as Bemba commanded a private army of 1,500 men who went on a spree of murder, rape and pillage. The charges – two of crimes against humanity and three of war crimes – stem from his militia’s intervention on the side of CAR’s then-president Ange-Felix Patasse in the neighbouring country’s civil war.

Bemba’s long-running trial was the first at the ICC to feature allegations of systematic sexual abuse by soldiers in a conflict. I am proud to say that I played a tiny part in the court eventually accepting gender and sexual violence (rape) as a component of the crimes against humanity. I contributed to an amicus brief submitted to the court on behalf of the Women’s Gender Initiative in 2009. The court proceedings and trial dragged on for years. It is gratifying to see the development of law in recognizing the particularly heinous use of sexual violence as a weapon of war and conflict. Summing up the case against Bemba in November 2014, prosecution lawyer Horejah Bala-Gaye told judges that Bemba’s forces “raped their victims at gunpoint anywhere and at any time”. In preparing the brief, I recall, the allegations included that men, women and children were all raped – in one case three generations of the same family were gang-raped by MLC soldiers who held them at gunpoint and forced relatives to watch.

The ICC’s governing “Rome Treaty” is based in the core principle of ending impunity for the worst kinds of crimes that shock the conscience of humanity.

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(Above: I’m joined by legal colleagues from Kenya.)

Another case that is attracting much interest and chatter, in international criminal law and human rights circles, is the unveiling of 70 charges of war crimes against Dominic Ongwen of the Lord’s Resistance Army (LRA). They include keeping sex slaves and recruiting child soldiers. Ongwen was himself abducted by the LRA when he was just 10, and joined the ranks of thousands of other child soldiers. However, over time he managed to rise through the ranks of the LRA, to carry out multiple attacks and working his way to the top of the group.

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Julius Nyerere, father of modern Tanzania

Ongwen was the former deputy to rebel leader Joseph Kony who remains on the run despite a massive international manhunt. Ongwen unexpectedly surrendered to US special forces in the Central African Republic. An intriguing feature of this case is that Ongwen was himself taken as a child and indoctrinated into the LRA cult and ideology. That surely presents the defence the opportunity to argue this, as perhaps a mitigating factor at sentencing, if he is eventually convicted. The moral and philosophical aspects of Ongwen’s abduction at tender age of 10, and the impact on his subsequent conduct,  will no doubt generate interesting discussion and scholarly analysis.

What is significant about these cases is not so much the development of the law or jurisprudence but rather the sense that international criminal justice seems to be on the march in its task of speaking truth to power. We have the prosecution of parts of the leadership of non-state groups that have wreaked significant destruction and misery, a judgment against a former Vice President of a state, and against a leader of an entity claiming to be a state.

More in the next Blog, including the targeting of child soldiers and the distinct legal and moral issues that arise with child soldiers.

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Of course, a Safari is a must do!

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Arusha Cultural Centre – Beautiful painting.

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On Visiting Arusha for Seminar of ICC

I recently travelled to Arusha, Tanzania for a Regional Seminar of List Counsel of the International Criminal Court (ICC).

The International Criminal Court became operational in 2002 and has jurisdiction over the most serious crimes of concern to the international community, that shock the conscience of humanity: war crimes, crimes against humanity, and genocide. The crime of aggression will be added to its jurisdiction in 2017.

I am on the Court’s List of Counsel and was invited to a Regional Seminar of the ICC held in February at Arusha, Tanzania. The Arusha Seminar was intended to improve the visibility of the court, particularly in light of the background politics, and to improve accessibility for African based List of ICC Counsel and prominent members of the legal profession. Arusha is also the where the International Criminal Tribunal for Rwanda is based.

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The ICC has come under criticism, led by the African Union. They argue that the court is biased against Africans, who account for all the cases tried by the court thus far. Supporters of the Court point out that several of the cases were referred to the court by African states themselves or the UN Security Council in the cases of Darfur and Libya.

In 2011, after Kenyan President Uhuru Kenyatta and William Ruto, his deputy were put on trial, the African Union, in a direct swipe at the ICC, declared immunity for sitting heads of state. Nairobi accused the ICC of being neocolonial and targeting Africans. Charges against Kenyatta and Ruto have since dissipated due to witness recanting or disappearance.

This was the background in which the Arusha ICC Seminar occurred. Here are a few random musings from my attendance:

Most Counsel, including the African lawyers, expressed strong support for the ICC and a universal, independent legal institution to prosecute individual crimes of responsibility committed in leadership capacity. A small minority, that one suspected might be politically connected to governing regimes in their home countries, led the criticism.

There was discussion of the Malabo Protocol that contains an extensive and ambitious list of crimes. It establishes the African Court of Justice and Human Rights and to extend the jurisdiction of the court to try 14 different crimes: the four crimes contemplated under the jurisdiction of the ICC and also crimes such as corruption, trafficking in drugs or persons, terrorism, mercenarism, and unconstitutional change of government. Thus far, there are only five ratifications of the Protocol.

The ICC statute is predicated on a core principle of Complementarity, recognizing that individual states have primary responsibility for prosecuting mass crimes of violence, including the crimes under the jurisdiction of the ICC. It is only if a state is unable or unwilling to investigate or prosecute, that the ICC will accept jurisdiction and prosecute. Accordingly, the Malabo Protocol need not necessarily be viewed as undermining the ICC, so much as consistent with the principle of Complimentarity.

Attendees included prominent actors such as an ICC judge, Chief Justices, Ministers of Justice, representatives of Regional Systems such as the African Court of Peoples and Human Rights, the Pan-African Legal Union, and civil society such as Amnesty International, and media. The Seminar was heavily focused on education and training, enhancing legal skills and knowledge, and a mock trial. I played the role of defence counsel assigned to cross-examine a child witness and victim in a factual scenario similar to events in DRC or Cote d’Ivoire.

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The best part of any such gatherings is meeting people. In this case, it was an honour and privilege to meet fellow legal counsel from across Africa, conversing in English and French, sharing legal experiences, and making new friends. I was impressed with the quality, dedication and courage of the counsel from Africa. At the end, I gave myself a couple of extra days to explore and sight-see, including a visit to a national park and a walkabout with a park ranger. It was an enriching experience and I felt I barely scratched the surface of what Arusha and Tanzania had to offer.

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More musings to follow on the ICC and international criminal law in a subsequent blog.

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