Tag Archive | "International Criminal Court"

Michael Kirby, Chairman of the U.N. Commission of Inquiry on Human Rights in North Korea

Critical Analysis: Will the Crimes Against Humanity perpetrated in North Korea be prosecuted in the ICC?

October 28, 2014

Speaking before the UN General Assembly on Oct. 28, 2014, Marzuki Darusman, the Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea (DPRK) encouraged action to stem the ongoing human rights abuses in the country.  Specifically, Mr. Darusman encouraged submitting the Commission of Inquiry’s report to the Security Council to “send an unequivocal signal” to the DRPK that serious follow up would be taken.

The report itself found systematic, widespread, and gross human rights violations amounting in some cases to crimes against humanity.  The human rights violations are unsurprising to most members of the international community.  Amnesty International and Human Rights Watch have both reported on the many egregious conditions imposed upon the people of the DRPK.  One example are prison camps for political offenders that impose ‘collective punishment’ (imprisoning entire families, including the children of offenders).  According to the US State Department, the political prisoners number in the tens of thousands and may exceed 80,000 individuals.

Although Mr. Darusman’s recommendation before the General Assembly made headlines, the statement is a reiteration of the findings of the Commission.  Specifically, the Commission stated that:

The United Nations must ensure that those most responsible for the crimes against humanity committed in the Democratic People’s Rebublic of Korea are held accountable.  Options to achieve this end include a Security Council Referral of the situation to the International Criminal Court or the establishment of an ad hoc tribunal by the United Nations.

The language used in the Commission’s report demonstrates a clear call for justice on the international stage.

Michael Kirby, Chairman of the U.N. Commission of Inquiry on Human Rights in North Korea

Chairman of the U.N. Commission of Inquiry on Human Rights in North Korea, Michael Kirby, spoke at U.N. headquarters, urging action on the report. Photo Credit: Salvatore Di Nolfi / European Pressphoto Agency, http://articles.latimes.com/2014/feb/17/world/la-fg-un-north-korea-20140218.

Non-cooperation has been an ongoing problem for the Commission, as is noted in the report, but recent developments must have caught the attention of the DRPK officials.  Mr. Darusman was “unexpectedly” met by four North Korean diplomats who sought to discuss a potential visit to the DPRK.  The meeting was the first contact with a UN inspector regarding the human rights situation in the last 10 years.  Reaching out may be a good sign, but it remains to be seen whether North Korea will allow Mr. Darusman access to the political prisons much less acknowledge their existence.

Equally unclear is whether the issue would withstand the veto powers of Russia or China if it reaches the Security Council.  Both nations have aligned with North Korean interests in the past.  Russia itself currently faces significant political pressure in the international arena, but that is certainly no predictor of how the delegation will vote.

Jordan Edmondson is a 3L at University of Denver Sturm College of Law and a Staff Editor for the Denver Journal of International Law and Policy.

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Sign at the International Criminal Court.

Critical Analysis: Gaza Conflict, Palestine, and the ICC

After a cease-fire ended the fifty day war between Gaza and Israel, Palestine wants to bring charges against Israeli individuals for war crimes and crimes against humanity. Therefore, Palestine has an important decision to make: become a state to the Rome Statute, which grants the ICC jurisdiction, or remain a non-member observer state and submit another ad hoc declaration to the ICC, which grants the ICC jurisdiction. To understand the arguments circling Palestine’s decision, it is important to know the history of the Gaza conflict.

The Palestine-Arab and Israel conflict (“Gaza conflict”) began after WWII when Jewish people wanted their own country and were given land in Palestine.  In 1967, Israel went to war and gained authority over the Gaza Strip from Egypt and the West Bank from Jordan: two territories that were heavily populated by Palestinian-Arab persons. In 2005, Israel “removed” its troops and a group called Hamas rose to power. Most countries, including the United States, consider Hamas a terrorist organization. The Hamas group refuses to recognize Israel as a country, and wants Palestinians to have their original land back and is not afraid to use violence to get it. With the rise of Hamas, Israel is a target and unsafe, therefore, Israel has been holding Gaza under a blockade, controlling Gaza’s coastline and the Gaza-Israel border. This blockade has resulted in many effects for over a million Palestinians: unemployment, hunger, and poverty.

Sign at the International Criminal Court.

International Criminal Court. Image Source: © Richard Wareham Fotographie / Alamy.

Thus, the main Palestinian demand is for the blockade to be lifted. Furthermore, Palestinians want prisoners released, reconstruction, and rights to fish off the Gaza coast. Conversely, Israel wants Hamas to recognize it and ensure its safety.

Now with a better understanding of the Gaza conflict, this brings us to the current issue: should Palestine grant the ICC jurisdiction either by accession to the Rome Statute or submitting another ad hoc declaration without accession? Because an ad hoc declaration does not obligate the prosecutor to open an investigation, accession is a better option. Accession will allow Palestine to seek judicial review if the prosecutor exercises her discretion and does not proceed with an investigation. However, under the Rome Statute, the UN Security Council can prohibit the prosecutor and the court from launching an investigation by passing a Chapter VII Resolution every twelve months. Added in 1998, this provision allows sensitive political negotiations (in this case, peace talks in the Middle East) to outweigh justice. As Joe Stork, Deputy Middle East Director at Human Rights Watch, points out this balancing test should not apply to the current conflict: “[t]he argument that Palestine should forego the ICC because it would harm peace talks rings hollow when 20 years of talks have brought neither peace nor justice to victims of war crimes.” Furthermore, “[t]he US, Israel and others who are pressuring Palestine not to seek the ICC’s jurisdiction cannot credibly argue that continued impunity for serious international crimes will help bring the conflict to an end.”

If Palestine decides to accession to the Rome Statute, it should determine whether it can secure a veto from one of the five permanent members of the UN Security Council in case a Chapter VII Resolution is submitted. Because countries like the U.S., the U.K., and France are opposed to Palestine becoming a state, it is likely that a Chapter VII Resolution would be submitted, and if a veto cannot be secured, then there is hardly a point to accession.

Open Issues:

In July 2014, the Palestine Liberation Organization (PLO) announced that at the Committee on the Elimination of Racial Discrimination’s annual meeting in August, PLO would request that Israel be designated an apartheid state because of its policies and measures against Palestine. If Israel is labeled an apartheid state, would this cause countries to shift from opposing Palestine’s enlistment of the ICC to supporting Palestine’s enlistment?

If Palestine becomes its own state, like Hamas wants, what will happen to Israelis who live in the current territory, such as the West Bank? And if the ICC is granted jurisdiction by Palestine, but Israel remains in control of Gaza, can the ICC conduct a proper investigation?


Cheyenne Moore is a 2L at the University of Denver, Sturm College of Law, and Survey Editor for the Denver Journal of International Law and Policy.

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Critical Analysis: Kenya’s Deputy President William Ruto to be Tried at the International Criminal Court, and the ICC to be tried by the Kenyans

William Ruto, Kenya’s Vice President appeared before the International Criminal Court (ICC) for the first time on September 10, 2013 for his trial.  Ruto is charged with crimes against humanity in response to the ethnic cleansing that occurred shortly after the 2007 presidential election.  During this cleansing, more than 1,000 people died and 600,000 people were homeless.  Along with Ruto, two other Kenyans are being tried for the same crimes: a radio journalist named Joshua Arap Sang and Kenyan President Uhuru Kenyatta, who during the 2007 election supported the opposing political party, former President Kibaki.


William Ruto, Kenya’s Vice President appears in the ICC for trial.

Ruto was the first of the three Kenyans to appear in court, and specifically faces charges of murder, persecution, and forcible transfer of people.  He is also charged as being a co-conspirator with Sang for orchestrating the murder and deportation of political supporters of the rival political party in the Rift Valley region.  He pleaded not guilty to all counts, and has assured his supporters that the case against him is fiction since the case is built upon a conspiracy of lies.   Despite Ruto’s calm and almost cavalier attitude about the case, Chief Prosecutor Fatou Bensouda opened by explaining that Ruto’s actions resulted in cold-blooded, deliberate murder and the relocation of thousands of people, decimating Kenya as well as the world’s perception that Kenya was a peaceful country.  Bensouda is expected to call forty witnesses to try her case.  Consequently, this case is far from decided.  It is estimated to last months, if not years.

Additionally, another type of trial is occurring during the prosecution of Ruto.  Ruto’s case has brought forth questions of whether the ICC is as unbiased and credible as it used to be.  The International Criminal Court is an independent court located in The Hague, Netherlands.  It is intended to be a court of last resort and only tries people for the most serious crimes, which include crimes against humanity, and it does not target specific jurisdictions.  Notwithstanding the ICC’s claims to unbiased, it had been claimed by African countries that the ICC focuses on African countries and avoiding war crimes in other hotspots.

The credibility and effectiveness of the ICC has also been called into question.  The ICC has a low success rate in cases where it is trying public officials for crimes against humanity, and Kenyan support for this case has dramatically diminished.  First, this case is unprecedented in that Ruto, and eventually Kenyatta are still acting public officials.   Ruto will be the first serving politician to be tried in the ICC.  Ruto was re-elected as Kenyatta’s Vice President in 2012, around the same time that the ICC announced that Ruto would face charges.  This continued support for Ruto was evident by the number of Ruto supporters packing the gallery.  This support has even gone so far as to the Kenya’s parliament that recently passed a vote to withdraw from the ICC, symbolizing the dissatisfaction that Kenya has with the ICC.  The other cases where the ICC has had successful convictions only involved previously ousted, unpopular leaders.  Consequently, the ICC is fighting the public opinion of Kenya in this case.

Although the public opinion of the case and the ICC does not have any influence on the actual trial or the evidence presented, the ICC will have an uphill battle in the coming months to convict Ruto of the alleged crimes against humanity given the unpopularity of the case.  Additionally, this case must also prove the unbiased nature and the competence of the ICC to the Kenyan country, the African continent, and the world.  In short, not only must the prosecutor prove her case, but the ICC must indicate through this trial that the ICC can effectively try an alleged and acting politician solely for his crimes against humanity to bring to justice the deaths of Kenyans, demonstrate that political leaders are not above justice, and to bring sustainable peace back to Kenya.

 Katelin Knox is a 3LE and Sutton Editor for the Denver Journal of International Law and Policy.

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Critical Analysis: Don’t forget the “Lost Boys” of Sudan

The name “Lost Boys” was given to a group of over 20,000 boys, between the ages of 5 and 17, who were separated from their families during the Second Sudanese Civil War (1983-2005).  These “Lost Boys” of Sudan trekked enormous distances over a vast unforgiving wilderness, seeking refuge from the fighting that emerged when their Christian villages in southern Sudan were attacked by northern Islamist forces.  Orphaned, these boys traveled a thousand miles across 3 countries, Sudan, Kenya, and Ethiopia.  During their journey, half of the boys died due to starvation, dehydration, disease, and attacks by wild animals and enemy soldiers.  It took these boys 5 years to find safety in a refugee camp in Kakuma, Kenya.  U.N. workers gave the “Lost Boys” their name after the lost boys in the fabled Peter Pan story.

Omar al-Bashir

Omar al-Bashir faces arrest warrants for criminal violations of the Rome Statute.

In 2000, the United States along with the U.N. High Commissioner for Refugees resettled approximately 3,800 Lost Boys in the United States across 38 cities.  The program was stopped after 9/11 for security reasons, though it was eventually restarted in 2004.  As these boys prepared to leave their refugee camps for America, they had to be prepared for a life that they could barely comprehend.  They had to be taught the concept of an electric stove, indoor bathrooms, and winter; essentially a crash course in America 101.  While many of the Lost Boys have become successful, attending medical school, law school, and joining the U.S. military, not all have been so fortunate.  It is no surprise that the horrors they faced as children compounded with being shipped to an unknown country, that some have turned to alcohol, drugs, and crime.

The perpetrator of these unimaginable horrors is Sudanese President Omar al-Bashir.  He came into power in a coup in 1989 and has ruled Sudan with an iron fist ever since.  There are currently 2 arrest warrants for President al-Bashir from the International Criminal Court (ICC).  It is alleged that he is criminally responsible for 10 violations of the Rome Statute based upon his individual criminal responsibility.  The counts include 5 counts of crimes against humanity, 2 counts of war crimes, and 3 counts of genocide.  These warrants require member countries to detain him if he enters into their territories.

Bashir has applied for a U.S. visa so that he may attend the upcoming U.N. General Assembly where he is scheduled to speak.  He would be the first head of state to address the U.N. General assembly while facing charges from the ICC, if he shows up as scheduled.  The U.S. government has made it clear that it does not want Bashir to arrive in New York, but the U.S. has never banned a visiting head of state that wants to speak to the U.N.  Furthermore, per a treaty dating back to 1947, the U.S. is obligated to issue the visa as the U.N. body’s host country.  Bashir says he has already booked his flight and hotel and that he is not worried about U.S. authorities arresting him, as demanded by international human rights groups, since the U.S. is not a member of the ICC.  Bashir says he has a right to attend the U.N. assembly and that “[n]obody in the U.S. can question me or hold me.”

The Lost Boys suffered as children and still suffer from those memories as adults.  Though the U.S. is not a member of ICC, it has ratified the Geneva Convention that punishes those who commit genocide and it has transferred suspects to the ICC before. If he appears in New York, let’s hope that the U.S. remembers the horrors the Lost Boys and millions of others have suffered at the hands of al-Bashir and that the U.S. takes al-Bashir into custody.

Sarah Emery is a 3L and the Executive Editor for the Denver Journal of International Law and Policy

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Why are War Crimes Sentences So Short?

Earlier this summer, a US District Court issued sentences in a international maritime piracy case that involved four US victims. The defendant was not an actual pirate but a ransom negotiator for the piracy financiers.

A Somali man who acted as a ransom negotiator for pirates who seized a yacht last year and killed four American hostages has been given 12 life sentences by a US federal judge.

Mohammad Shibin was convicted in April on 15 charges including piracy, hostage taking, kidnapping and conspiracy. He was paid $30,000-$50,000 (£19,000-£32,000) in cash for his negotiating services, according to a federal indictment.

In a courtroom in Norfolk, Virginia, Judge Robert Doumar of the US district court sentenced Shibin to serve 10 concurrent life sentences, two consecutive life sentences and two 20-year sentences and ordered him to pay $5.4m in restitution. The Guardian (UK)

Judges of the International Criminal Court
(Christian Science Monitor)

The case illustrates a key difference between domestic courts and international tribunals when exercising jurisdiction over international crimes.  To my knowledge, no international tribunal has ever issued consecutive sentences.  As I recently blogged, the International Criminal Court issued three sentences of 12, 13, and 14 years in its first concluded trial against Thomas Lubanga.  However that Tribunal ordered the sentences to be served concurrently.  They could have issued the sentences to run concurrently up to a maximum of 30 years.  Article 78(3) of the Rome Statute pertains to sentencing and it provides:

 3.  When a person has been convicted of more than one crime, the Court shall pronounce a sentence for each crime and a joint sentence specifying the total period of imprisonment. This period shall be no less than the highest individual sentence pronounced and shall not exceed 30 years imprisonment or a sentence of life imprisonment in conformity with article 77, paragraph 1 (b).

It has always struck me as curious that the drafters of the Rome Statute would want to impose sentencing limits of judges in cases as serious as genocide and other mass atrocity cases.

A sentence of consecutive life sentences such as issued in Shibin is obviously symbolic but nonetheless a powerful statement about the nature of the crime.  Take for example the Dos Erres Massacre case in El Salvador in which four soldiers were convicted of murdering 201 people and sentenced to 6060 years.  As the BBC noted

The sentence is largely symbolic as the maximum actual [maximum] term is 50 years …

The cases at international tribunals often deal with much more egregious crimes – the Ituri region in Lubanga saw 60,000 persons killed.  And yet tribunal judges have been unwilling to issue symbolic sentences that reflect the fact that mass atrocities are not ordinary crimes and should not involve ordinary sentences.

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ICC’s Sentence for Lubanga is a Shaky Conclusion to a Troubled Case

After ten years, the International Criminal Court issued its first verdict on March 14th, finding Congolese warlord Thomas Lubanga guilty of three child soldier related war crimes offenses: conscripting, enlisting, and using child soldiers. The trial phase of the case concluded this summer when the ICC sentence Lubanga to 14 years in July. The paltry sentence is a shaky conclusion to a case that has been troubled from the beginning.

Thomas Lubanga at the ICC

Controversy first appeared when the Prosecution team charged Lubanga only with the child soldier offenses. The prosecution surprisingly did not indict Lubanga with the substantive crimes committed by the child soldiers, namely thousands of instances of murder and rape. It is standard fare for tribunals to charge military commanders for the crimes committed by their subordinates, and so the Lubanga indictment seemed conspicuously narrow and unrepresentative of the mass crimes in the Ituri region of the Congo in which 60,000 were killed. And the indictment rankled many because of its failure to reflect the widespread commission of gender crimes.

The start of the trial saw the proceedings immediately halted over allegations of impropriety by the prosecution in its reliance on investigative “intermediaries.” It turns out the prosecution paid Congolese civilians to help them in the Congo. The “intermediaries” helped prosecutors identify and locate witnesses during its investigation, a practice which the court found in the trial judgment to be a misplaced delegation of responsibilities. The court indicated that several intermediaries may have facilitated false testimony. The prosecution did itself no favors by stubbornly defying direct court orders to disclose the names of intermediaries to the Lubanga defense team.

Congolese Child Soldiers

Despite this rough beginning, an appropriate judgment and sentence would have gone a long way toward erasing the memory of the ignominious start. But there would be no such luck. The court issue sentences of 12, 13, and 14 years for the “enlisting”, “conscripting”, and “using” counts respectively, a sentence that does not seem commensurate with Lubanga’s role in the mass slaughters or the enslavement and brutalizing of children. Adding insult to injury, the court ordered the sentences to be served concurrently and imposed an actual sentence of 14 years. The court had the option of ordering the sentences to be served consecutively — up to a 30 year maximum. Even better, it could have issued a life sentence.

The BBC reported at the time of the sentencing that Mike Davis, from the human rights organisation Global Witness, said that “the sentencing of Lubanga was an ‘important development’ but that it sounded like ‘a rather low sentence in relation to the crimes that he committed.’” Congolese government spokesman Lambert Mende “agreed that he should have been jailed for longer…” Mende diplomatically offered that the meager sentence was at least a “positive signal” for peace in the region.
In his sentence, Judge Adrian Fulford went out of his way to compliment Lubanga for his conduct and cooperation during the trial and critical of the prosecution. And Fulford lambasted the prosecution.

I am not defending the prosecution in Lubanga, but it should never be the case that a prosecutor’s conduct ever serves as mitigation in the sentence of a war criminal (just as the conduct of the defense attorney can never constitute an aggravating factor). Criminal sentences can only be issued on the merits of the case. Punitive measures against a prosecutor should be an entirely independent action.

Receiving credit for his six years of pre-trial detention, the 51 year old Lubanga has eight years remaining on his sentence – a term that could be significantly lessened for good behavior. It is a sweet deal for Lubanga, but the latest in a long string of bitter pills the Congolese have had to swallow.

At the very least, one hopes Lubanga’s deal is sweet enough to cause Sudanese President al Bashir to rethink his refusal to submit to the court’s jurisdiction.

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Critical Analysis: Libya’s Lessons for the Responsibility to Protect

Libya Post-Qaddafi (The Guardian)

As the dust from the armed intervention in Libya settles, the dangers of outright regime change are laid bare.  This has brought about a certain amount of what might be called buyer’s remorse on the part of organizations and governments previously supportive of the humanitarian intervention in Libya.  One of the main problems of regime change is the power vacuum left by the previous regime.  Once the previous regime is removed, the ensuing vacuum opens up space for various previously repressed or insignificant power brokers to take prominence in the new order.  In the case of Libya, removing the Qaddafi regime precipitated the rise of local government and militias at the expense of the central government.  Additionally, the sudden release of oppressive pressure from the top has led to acts of retribution based on longstanding grudges.  These acts of retribution have been both organized and unorganized, and human rights organizations, such as Amnesty International and Human Rights Watch, accuse the Libyan anti-Qaddafi militias of gross and widespread human rights violations.  Homelessness, violence, and lawlessness are widespread and acts of retaliation against the Tuareg population are ubiquitous.

In the last few days, the rift between the central government and the local power brokers hit the world stage with the detention of the International Criminal Court’s delegation.  The delegation was on its way to visit Saif al-Islam Qaddafi, Muammar Qaddafi’s son, when a local militia group detained them in the western town of Zintan.  Although the central government and the ICC have demanded their release, the militia has refused.  The refusal lays bare the divisive issue of prosecution of the previous regime.  Although the ICC has asserted jurisdiction over members of the previous regime, the Zintan militia and other factions within the Libyan state have expressed their desire to have members of the previous regime tried in Libyan courts.

The ICC has a statutory responsibility of complimentarity to domestic jurisdictions; that is, the ICC may only take jurisdiction over a case if the domestic courts are unwilling or unable to prosecute.  Although various human rights organizations, and the ICC itself, have expressed doubts about the capability of the Libyan judicial system and, moreover, the state of human rights within the Libyan state, various factions within Libya assert that the judicial system is willing and able to prosecute members of the previous regime.

Other divisions since the end of the Qaddafi regime are becoming apparent, as relations between the majority Arab population and the minority Tuareg population demonstrate.  Indeed, whereas the speedy removal of Colonel Qaddafi was hailed as a victory for the principle of the responsibility to protect, recent attacks by local and national militias, particularly against the city of Tawargha, have been decried as war crimes, undermine that progress.  These crimes might also fall under the jurisdiction of the ICC, though a continued relationship with the new Libyan regime would be necessary in order to bring the violators to justice.  Such a continued fruitful relationship seems unlikely at this point.

These divisions underline the importance of the humanitarian aspects of any humanitarian intervention.  It is apparent that armed intervention in support of a civilian revolution is insufficient to fulfill humanitarian goals, and that, as demonstrated in Afghanistan and Iraq, regime change must be followed with extensive support to rebuild infrastructure and civil and political institutions.  Invoking a responsibility to protect during the armed intervention and then stepping back to allow the inevitable violent effects of regime change to take their natural course is irresponsible at best, and criminal at worst.  The responsibility to protect must apply not only to vicious dictators, but also to well-meaning intervening states.  That is to say, in order to be a meaningful, coherent policy, any state invoking the responsibility to protect must include a plan to address the consequences of their actions, including the prosecution of members of the previous regime and the ensuing violence and retaliation.

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Seif al-Islam Gadhafi

News Post: ICC orders Libya to hand over Gaddafi’s son

On April 4th, the International Criminal Court (“ICC”) ordered Libyan authorities to surrender Moammar Gadhafi’s son, Seif al-Islam Gadhafi after the Libyan transitional government requested a second postponement in surrendering him.  Libyan rebel fighters arrested Seif al-Islam Gadhafi in November 2011 when he was attempting to flee to Niger and the country means to try him in their own court system first.  In its ruling, the ICC requested that Libya “proceed immediately with the surrender,” but Libyan authorities intend to challenge the jurisdiction of the court.

Seif al-Islam Gadhafi

Seif al-Islam Gadhafi

The Pre-Trial Chamber of the ICC issued an arrest warrant against Mr. Gadhafi for crimes against humanity on June 27, 2011. The Libyan National Transitional Council confirmed the arrest of Mr. Gadhafi in November 2011, but requested a postponement of the Surrender Request until they could complete national proceedings regarding crimes charged against Mr. Gadhafi. In March, the Pre-Trial Chamber dismissed the postponement request.  Later in the month, Libya filed another postponement request.  The Court rejected this postponement request as well, holding that it had jurisdiction over Libya and needed to “start making arrangements in preparation for the surrender of Mr. Gadhafi to the Court without further ado.”

Libyan authorities are currently building a special prison in Tripoli where Gadhafi will be held while the militia is holding him in the western town of Zintan.  Once the prison is complete and Gadhafi has been moved, his trial will begin.  However, many people fear that Gadhafi will not receive a fair and safe trial in Libya.  In addition to the anger felt by Libyan citizens against Gadhafi, a Libyan court could sentence Gadhafi to death for persecuting and killing protestors during the uprising, while an ICC conviction could only result in a prison term.

While Libyans want to see justice in their own country for their citizens, Liz Evenson, senior counsel with Human Rights Watch’s International Justice Program has stated that it is “imperative that Libyan authorities start preparing to surrender Seif al-Islam … This is what cooperation with the court means.”  If Libyan authorities do not hand Gadhafi over to the ICC, it is possible that the matter will be brought before the Security Council, as a Security Council Resolution has ordered Libya to cooperate with the ICC.

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The Comparative Cost of Justice at the ICC

On March 14th, the International Criminal Court (ICC) delivered it first judgment, finding Thomas Lubanga guilty of three child soldier war crimes offenses.  The verdict is a welcome victory in the fight against impunity and it is some measure of justice for the 60,000 persons killed in the Ituri province in Eastern Congo.  But the judgment highlighted the ICC’s painstakingly slow pace to date – the ICC has been in existence for ten years and so far they have indicted 15 persons and achieved one conviction.  And it should be noted this is not a final conviction, but only a trial verdict.  To be fair, three other accused are in the midst of trials.

Thomas Lubanga at the ICC

Just how much have these 15 indictments and lone conviction cost the ICCs signatories?    The cumulative total of the ICC’s budgets over the initial decade is $900 million.  By way of comparison, the International Criminal Tribunal for the Former Yugoslavia (ICTY) spent $695 million in its first ten years, and the International Criminal Tribunal for Rwanda (ICTR) spent about a $1 billion.   So at a glance the ICC is not out of line with its brethren institutions.

However, the ICTY and ICTR both indicted far more suspects for that money.  The ICTY indicted 161 persons, 1 while the ICTR indicted 91 persons.2  I didn’t have time to research every indictment, but my memory was that most of those indictments had been issued by the ten year mark.

Let’s break those numbers down a bit more.  Based on the numbers above, the cost per suspect indicted at the ICTY, regardless of the outcome of the case, was $4.3 million, it was $11 million at the ICTR and $60 million at the ICC.

I am not going to address the overall cost of international tribunals in this blog. Suffice it to say that they are too expensive and too inefficient in my view.  What I would like to talk about here is the ICC relative costs to the ICTY and ICTR ad hoc tribunals.

While we can expect that the ICC will approach the cost structures of the ad hocsover time, the ICC will never be able to match their operational costs (particularly the lower ICTY costs) for several reasons.

First, the ICTY and ICTR were both mandated by Security Council resolutions, and thus the major political and legal questions about their right to adjudicate matters was resolved before their work began.  At their inception, they had the luxury of focusing their energies on criminal investigations rather than jurisdictional challenges.  The ICC is a wholly different animal.  It must establish its right to exercise its jurisdiction in each situation it chooses to “officially” investigate, and must walk a diplomatic tightrope along the way.  (The only exception to that rule is when the Security Council refers cases to it, as it did with Sudan and Libya.)

Second, the ICTY and ICTR both had clear and specific mandates — to prosecute those most responsible for offenses in defined conflicts.  The ICC, on the other hand, has a global mandate with an obligation to consider crimes committed in any of its 139 signatory territories plus any others referred to it by the Security Council.   The ICC gets thousands of unofficial communiques each year.  It must conduct a cursory review of these communiques regardless of whether it decides to launch an official investigation.

Third, the ICTY and ICTR had one-time ramp-up costs and learning curves.  The ICC goes through this ramp-up process for each official investigation.  The ICC must establish information and logistical beachheads in each situation, creating an investigational infrastructure for each official investigation.  Key witnesses have to be located, relationships formed and nurtured and local politics mastered. Even small details such as safe hotels for accommodation have to be sorted out.

Fourth, the ICC’s broad mandate brings with it an immense problem of language. The two ad hoc tribunals had to contend with difficult regional languages – Kinyarwandan in Rwanda and several Balkan languages in Yugoslavia.  The ICC is obligated to function in all of the languages relevant to the conflicts it investigates: there are 200 languages are spoken in the Congo, 72 in the Central Africa Republic, 45 in Uganda, 142 for Sudan, 79 in The Ivory Coast and 69 in Kenya.  The ICC could breathe easy with Libya where only 9 languages are spoken.  Of course, many people in the Congo speak a lingua franca, Swahili or Lingala.  But many witnesses have stronger language capabilities in their local tongues.

We have given the ICC a complicated mandate to achieve and it is no surprise that it is taking it a while to hit its stride.

  1. The ICTY has concluded proceedings in 126 cases which includes 64 convictions.  17 cases are on appeal.
  2. he ICTR has concluded proceedings in 78 which includes 42 convictions.  18 cases are on appeal.

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The International Criminal Court Issues its First Verdict: Guilty

In a landmark decision, on March 14, the International Criminal Court issued its first verdict and found Thomas Lubanga Dyilo guilty of enlisting and conscripting children under the age of 15 years to be soldiers and using them to participate actively in hostilities in the context of an internal armed conflict.

There are some critics of the decision itself, arguing that Lubanga was only a middle-level official in the Ugandan and Democratic Republic of the Congo (DRC) conflict itself and that the ICC Office of the Prosecutor failed to indict senior level-officials involved in the killing of a reported 50,000 Ugandan and Congolese civilians, as well as the enlistment and conscription of child soldiers. For the most part, however, the decision remains uncontroversial.

Below are a background of the conflict, a description of the counts against Lubanga, and an overview of the legal theory under which he was convicted.

Background of the Conflict

Thomas Lubanga

In September 2000, an inter-ethnic war began in the Ituri region of the DRC, with fighting and savage killings occurring between the Lendu and Hema tribes.  This internal conflict consisted of a regular series of violent battles, largely between a Hema group, the UPC/FPLC (Union de Patriotes Congolais/ Forces Patrotiques pour la Libération de Congo), led by Thomas Lubanga, and other military or rebellion groups.

Uganda, with its army the UPDF (Uganda People’s Defense Force), was also involved in the armed conflict occurring in the DRC, both directly  and indirectly. As early as September 15th, 2000, the Ugandans supplied support to the UPC/FPLC and other DRC armed groups, including the recruitment and training of soldiers, providing of weapons, and actual organization of several of the previously mentioned armed groups.

During these conflicts, children from villages throughout the DRC were conscripted and enlisted as soldiers for the UPDF and various rebel groups from villages, trained in the art of war, and directly used in the hostilities.

The Counts Against Lubanga

Thomas Lubanga Dyilo was charged with enlisting and conscripting of children under the age of 15 years into the Forces patriotiques pour la Libération du Congo [Patriotic Forces for the Liberation of Congo] (FPLC) and using them to participate actively in hostilities in the context of both an international armed conflict and a non-international armed conflict, between early September 2002 and June 2, 2003 (punishable under Article 8(2)(b)(xxvi) and Article 8(2)(e)(vii) of the Rome Statute).

Enlistment is the act of recruiting a child, under the age of 15, voluntarily into an armed force or group. A child’s consent during enlistment is not a valid defense. The Prosecution offered evidence that beginning at least as early as July 2000, the active recruitment of soldiers began, for purposes of officially creating the UPC, the armed branch of the FPLC. Many children joined the UPC/FPLC to earn money, seek revenge, protect themselves or their families, or because their parents offered them for enlistment upon request or demand from UPC/FPLC commanders.

Conscription is the act of forcibly recruiting a child, under the age of 15, into an armed force or group. During the conflicts in Uganda, children were forced into military service for the UPC/FPLC or threatened with force into joining. The Prosecution provided evidence that children were abducted or arrested by armed soldiers and brought to training camps. Once at the training camps, the recruits were threatened with beatings or death for not obeying orders or attempting to desert.

Co-Perpetration Overview

Co-perpetration is codified in Article 25(3)(a) of the Rome Statute and generally establishes that any individual responsible for making a contribution to the furtherance of a crime can be held vicariously responsible for the contributions of all others involved in the crime. In addition, the co-perpetrator may be considered a principle to the entire crime. Principals to a crime need not physically carry out an objective element of the offense, but rather can be found liable if they control or mastermind the commission. This type of liability is referred to as co-perpetration based on joint control.

Angelina Jolie at the ICC

In order to establish liability under a theory of co-perpetration based on joint control, it is necessary for the prosecution to prove certain objective and subjective elements essential to the claim. The objective elements of co-perpetration liability can be established by demonstrating 1) the existence of a common plan or agreement between two or more persons; and 2) that each co-perpetrator provided an essential contribution, resulting in the realization of the objective elements of the crime. The subjective elements may be proved by establishing that 1) the accused fulfilled the subjective elements of the crime in question; 2) the accused and his co-perpetrators were mutually aware and mutually accepted that implementing their common plan may result in the realization of the objective elements of the crime; and 3) the accused must be aware of the factual circumstances enabling him or her to jointly control the crime.

The Prosecution in the Lubanga case alleged that also involved in the common plan were Thomas Lubanga’s top commanders, Floribert Kisembo (FPLC Chief of Staff), Bosco Ntaganda (the FPLC Deputy Chief of Staff for Military Operations), Chief Kahwa, and commanders Tchaligonza, Bagonza, and Kasangaki.  The Prosecution argued that these five individuals exercised joint control over the commission of the objective elements of the crimes. Evidence supporting a common plan or scheme was circumstantial but indicated a common plan based on the widespread nature of the activities, including: the widespread recruitment and conscription of child soldiers, numerous training camps for child soldiers, and evidence of families fleeing Uganda to avoid their children being abducted for conscription purposes.

Additionally, Thomas Lubanga did not attempt to hide the fact that he used child soldiers as personal bodyguards. Numerous witnesses testified during the trial that it was common knowledge in Ituri that Thomas Lubanga and his family used child soldiers as bodyguards. On several different occasions, Thomas Lubanga was witnessed attempting to recruit children from Hema villages by appealing to tribal elders.

The Chamber’s Decision

The Chamber concluded that the Prosecution had proven all of the elements of the Indictment crimes beyond a reasonable doubt. Interestingly, the Chamber did note that an international armed conflict had not been sufficiently established relating to the crime base and the UPC/FPLC’s involvement in the conflict, and accordingly, the Chamber convicted Lubanga solely on crimes perpetrated within the context of an internal armed conflict.

On interesting side note, American actress Angelina Jolie attended the public reading of the verdict today. She commented that, “The delivery of the ICC’s first verdict today is an important moment for the Court, for the Democratic Republic of Congo, and for the rule of law. Perhaps today’s verdict of guilty provides some measure of comfort for the victims of Mr Lubanga’s actions. Most of all it sends a strong message against the use of child soldiers.”

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University of Denver Sturm College of Law


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