ICC complementarity to be revisited

Tomorrow, Monday, June 1, Pre-Trial Chamber II of the International Criminal Court will hear argument on a defense motion in Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, challenging the admissibility of the proceedings against defendant Katanga (right) on the ground that the proceedings violate the principle of complementarity. The complementarity principle is set forth in Article 17(1) of the Rome Statute, which states that a case is inadmissible if it

is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.

Katanga, alleged commander of the Patriotic Resistance Force in Ituri, and Ngudjolo, alleged leader of the Nationalist Integrationist Front, have been charged with war crimes and crimes against humanity arising largely from their forces’ joint attack on the village of Bogoro, in northeastern Democratic Republic of the Congo, on February 24, 2003. During the attack, the defendants’ forces allegedly intended to annihilate the village’s civilian population in order to gain control of a key transit route. Charged crimes include the murder of nearly 200 civilians, sexual enslavement of women and girls, and conscription of child soldiers.
The February 10, 2009, defense motion (a redacted version of which was made public on March 11), Katanga’s counsel distinguished the ICC from the International Criminal Tribunals for Rwanda and the former Yugoslavia by asserting that, unlike those ad hoc tribunals, the ICC has a subsidiary role that is triggered only when national investigations fail to occur or are somehow “defective.” The submission outlines state concerns, expressed during the negotiations leading to the Rome Statute, that ICC proceedings could infringe upon national sovereignty and argues that the Court’s current practice has only justified those fears by asserting "nothing less than primacy of the ICC over national courts."
The defense motion noted that, at the time Katanga’s arrest warrant was issued, he was being prosecuted in the DRC for identical charges — crimes against humanity in Bogoro — and his case is thus inadmissible under Article 17.
While distinguishing its case from that of another DRC defendant currently on trial, Thomas Lubanga, the defense criticized the iCC’s treatment of complementarity in that case. Specifically, in Prosecutor v. Thomas Lubanga Dyilo, Pre-Trial Chamber I upheld the arrest warrant against the defendant despite his investigation by DRC authorities, on the ground that the national investigation focused on crimes other than those charged by the ICC’s Office of the Prosecutor. The Katanga defense criticized this "same-conduct test," which was applied subsequently in the decisions reviewing the arrest warrants of Katanga, of his co-defendant Ngudjolo, and, in the matter regarding Darfur, Sudan, of Ali Kushayb, on a variety of grounds:
► The scope of inquiry regarding the conduct at issue is unsettled, the defense argued, adding that this leaves parties to question the factual inquiry that pre-trial chambers employ in determining whether the conduct investigated by national authorities is similar to that investigated by the prosecution.
► The "same-conduct test" is tantamount to ICC primacy, and thus subverts the principle of complementarity, the defense further argued. It reasoned that the decision whether to deploy scarce national resources vis-à-vis broad international crimes necessarily entails some degree of selection at the domestic level, and this fact opens the door for international prosecutors to assert ICC jurisdiction on the basis of little more than resource gaps or national prosecutorial discretion. Scholars such as William A. Schabas have criticized the ICC's interpretation of complementarity.
The defense proposed that rather than applying the "same-conduct test," the ICC should apply 1 or both of the following when considering the admissibility of a case for complementarity purposes:
► A "comparative-gravity test," which holds that when the need for investigation “significantly exceeds” that undertaken by a national authority, a case may be deemed admissible by the ICC.
► A "comprehensive-conduct test,: which holds that when the factual basis of an international investigation "is significantly more comprehensive" than that of a domestic prosecutor, a case likewise may be admissible.
The defense argued, however, that even under the "same-conduct test" Katanga’s case is inadmissible given that he was charged with crimes against humanity arising out of the attack on Bogoro, and there is no evidence that the DRC is unwilling or unable to pursue a corresponding investigation and possible prosecution.
The hearing will be available on livestream webcast here. It is scheduled to begin at 9:30 a.m. (3:30 a.m. Eastern time) Monday at the ICC courthouse at The Hague (left).

Sexual Violence in the ICTR and ICTY: Successes and Disappointments

I have been thinking a lot recently about the progress made from the perspective of women’s distinctive experience of conflict by the ICTY and the ICTR, both of which are soon to complete their work. Although I am somewhat reluctant to engage in any kind of ‘accounting exercise’, where the ‘achievements’ and ‘disappointments’ are lined up against each other and compared, it strikes me that some kind of summarising exercise would be a good idea.
The good:
► (a) sexual violence was included in the statutes of the tribunals themselves following very concerted efforts by international NGOs, their success being what Janet Halley calls ‘governance feminism’ (see her latest article in the Melbourne Journal of International Law on this here);
► (b) significant numbers of women were involved in the running of the tribunals as chief prosecutor (Louise Arbour; Carla del Ponte), as judges (notably Navi Pillay (above) (photo credit), about whom IntLawGrrl Amy Senier also posts today, and Florence Mumba), and as other staff; and
► (c) sexual violence was recognised as the actus reus of other crimes, most notably we recognised in the ICTR that rape could be the actus reus of genocide (Prosecutor v. Akayesu) and in the ICTY that rape could be the actus reus of torture (Celebici Case).
The not so good:
► (a) female victims continue to suffer extreme distress and post-testimony ostracised and abuse after testifying before the tribunals; this can include being subjected to further sexual violence;
► (b) some decisions by the Office of the Prosecutor have been simply baffling, particularly in relation to whether to include sexual violence charges in indictments. Take, for example, the Akayesu indictment which included sexual violence charges only after the presiding judge (Judge Pillay) and NGOs intervened to ask the OTP to consider amending the indictment.
► (c) For quite some time (especially in the early 2000s) there was a clear prosecutorial policy of sidelining sexual violence charges: specialised investigative units were disbanded, clear cases where sexual violence should have been included in the indictment had no such charges and these decisions continue to have repercussions (the Lukic case is an obvious example -- IntLawGrrl Beth Van Schaack discusses it here).
A mixed record then, it is fair to say. Of course, there have been enormous advances and these continue to have positive ramifications in other international and hybrid tribunals (not least in the Special Court for Sierra Leone), and to ignore these would be churlish. But we should also be careful not to overstate progress; identifying the ‘must do better’ areas is vital to the continuing development of international criminal law.

International Justice Overload

Greetings from The Hague. I am here with a team of Santa Clara Law students who are competing in the International Criminal Court Trial Competition, sponsored by the International Criminal Law Network and others. (The team was invited to compete in the international rounds by virtue of winning the North American Regional Rounds last month).

As part of our program, we had the opportunity to visit several of the international tribunals based here in The Hague. At the ICC, we witnessed part of the trial of Thomas Lubanga Dyilo (left), the first defendant to be tried before the fledgling Court. The witness on the stand was under protective measures, his identity hidden from those of us in the public gallery by blinds and a pixelated image on screen. The testimony culminated in the showing of a video in which very young children sang and chanted about the glory of "Papa Tom," as he watched on. Children carrying weapons on their shoulders weaved throughout the crowd, and a jeep with two additional child soldiers patrolled behind everyone.

Lubanga has been charged with the offense set forth in Articles 8(2)(b)(xxvi) and 8(2)(e)(vii):

Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.

Sub-sections (b) and (e) of Article 8 relate to international and non-international armed conflicts, respectively. Interestingly, the prosecutor had originally charged Lubanga only with respect to the crime within a non-international armed conflict. At the time the indictment was confirmed, the pre-trial chamber insisted on adding the charge with respect to an international armed conflict. The Prosecutor sought leave to appeal this change in the indictment, but such leave was denied. Accordingly, the Court will directly address the question of whether the conflict in the relevant region of the DRC amounted to an international armed conflict within the meaning of international humanitarian law.

It was a judge--Judge Adrian Fulford (United Kingdom) (right)--who asked the most pointed questions, specifically calling the attention of the witness to the child soldiers depicted in the video. (We entered the gallery mid-examination, so it is not clear if the witness was also depicted in the video).

The video was introduced by the prosecution, who according to the guiding Elements of Crimes much show:

1. The perpetrator conscripted or enlisted one or more persons into the national armed forces or used one or more persons to participate actively in hostilities.


2. Such person or persons were under the age of 15 years.


3. The perpetrator knew or should have known that such person or persons were under the age of 15 years.


4. The conduct took place in the context of and was associated with an international or non-international armed conflict.


5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

Unlike other international crimes that require a showing of intent or actual knowledge, the crime of conscripting, enlisting, or using child soldiers applies more of a negligence mens rea ("knew or should have know" that such persons were under 15). In addition, it is not necessary to use child soldiers in combat; it is enough that the defendant conscripted or enlisted them. The video certainly suggested that Lubanga was aware of the existence of child soldiers in his ranks.

Next, we visited the chambers of Judge A. A. Cançado Trindade (left), a member of Santa Clara's overseas faculty until he was recently elected to the International Court of Justice (winning the most votes of any judge to that court (163)).

Finally, we attended two trials at the International Criminal Tribunal for the Former Yugoslavia. The first was of Momcilo Perisic (below left), former Chief of the General Staff of the Yugoslav Army (VJ). After the death of former President Milosevic, this defendant is crucial to linking crimes committed in Croatia and Bosnia-Herzegovina back to Belgrade. He is charged with various war crimes and crimes against humanity, including murder, inhumane acts, persecutions, and extermination. Perisic's case was one of the ones subject to Rule 73bis, whereby the Trial Chamber may invite the prosecutor to reduce the scope of the indictment in an effort to streamline the case. While the judges of the ICTY adopted this rule to help implement the tribunal's Completion Strategy, the judges of the International Criminal Tribunal for Rwanda have determined that it interferes with prosecutorial discretion and have not followed suit.

When Perisic's trial went into closed session, we sat in on the trial of Popovic (right) et al., another Srebrenica case. All 7 defendants are former members of the Bosnian Serb Army (the VRS). They are charged with genocide, conspiracy to commit genocide, extermination, and murder. So far, the Srebrenica massacre has yielded convictions for complicity to commit genocide, but not straight genocide. Today's testimony contained a somewhat numbing presentation of evidence (including transcripts of intercepted conversations) concerning fuel requisition. The trial has been ongoing since 2006.

They don't call The Hague the International Law Capital of the World for nothing.

UN Convention on the Prevention on Punishment of Genocide

Today marks the 60th anniversary of the introduction of the UN Convention on the Prevention and Punishment of the Crime of Genocide. The Convention contains an absolute prohibition on genocide, which is also long recognised as a jus cogens norm in international law. Genocide is defined in Article 2:

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

The need for a Convention on the crime of genocide was, of course, starkly illustrated by the Holocaust, in which Jews, persons with disabilities, Roma, homosexuals and others suffered enormous harm and loss. Unfortunately, in the past 60 years, the absolute prohibition of genocide has not been sufficient to prevent other genocides from occurring. Scholarship on genocide is constantly evolving, and one of the most interesting areas of current and innovative inter-disciplinary work relates to gender, sexuality and genocide. This has arisen in a number of ways. Adam Jones has been instrumental in the development of ‘gendercide’ as an area of scholarship, focusing mostly on the targeting of men of military age in genocidal campaigns. Other scholars, myself included, have focused on the use of sexual violence against women as part of the evolving law and scholarship of genocide.

The conflicts in the Former Yugoslavia and Rwanda in the 1990s were largely characterised by the extensive use of sexual violence and exploitation as a weapon of war and a genocidal method. Although sexual violence as part of armed conflict was not a new phenomenon, and indeed continues to occur, a number of matters suggested that any formal legal response taken by the international community to this violence would address the particular experiences of women and girls in these conflicts.

Firstly, the widespread use of sexual violence and exploitation in both cases had received sustained media attention and been the subject of extensive commentary by non-governmental organisations. Secondly, the international community’s record on addressing women’s particular sexualised experiences of women in conflict was especially weak. Thirdly, since the failures of the Nuremburg Tribunal and the International Military Tribunal for the Far East to address women’s experiences of sexual violence and exploitation a corpus of law on women’s human rights had been developed with a particular emphasis on ensuring that sexual violence and exploitation were addressed by law and were not consigned to the unregulated realm of the ‘private’.

As a result of this context, when the Security Council established the ad hoc International Criminal Tribunals for the Former Yugoslavia and Rwanda the inclusion of sexual violence within the tribunals’ statutes was to some extent to be expected. That notwithstanding, experiences at both international and domestic levels taught that the mere inclusion of sexual violence and exploitation within courts’ and tribunals’ formal jurisdiction was no guarantee of effective prosecution of these crimes, or of the provision of an adequate or real remedy to women and girls affected by such violence. Rather, sustained attention to such crimes by both the prosecutor and the tribunals themselves, together with the creation of a juridical climate within which women’s stories can be told and heard, remain have been somewhat absent.

As has been well documented here on IntLawGrrls, particularly in the posts of Beth Van Schaak (posts here) difficulties continue to arise in relation to the prosecution of sexual violence before the Yugoslav and Rwandan tribunals. However, on this day of commemoration we can, perhaps, choose to remember the momentous decision, handed down by Judge Pillay (now UN High Commissioner for Human Rights) in Prosecutor v Akayesu, where for the first time an international tribunal recognised that sexual violence can be constitute the actus reus of the crime of genocide in respect of measures designed to prevent births in the targeted group (para. 507)

For purposes of interpreting Article 2(2)(d) of the Statute, the Chamber holds that the measures intended to prevent births within the group, should be construed as sexual mutilation, the practice of sterilization, forced birth control, separation of the sexes and prohibition of marriages. In patriarchal societies, where membership of a group is determined by the identity of the father, an example of a measure intended to prevent births within a group is the case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother's group.