E-letter July 2010

  Legal Eye e-letter  

Dear Friends,

Welcome to the second 2010 issue of Legal Eye on the ICC, a regular e-letter from the Women's Initiatives for Gender Justice. In the Legal Eye you will find summaries and gender analysis of judicial decisions and other legal developments at the International Criminal Court (ICC), and discussion of legal issues arising from victims' participation before the Court, particularly as these issues relate to the prosecution of gender-based crimes in each of the Situations under investigation by the ICC. The Court currently has cases relating to the conflicts in Uganda, the Democratic Republic of the Congo (DRC), Darfur, Sudan, the Central African Republic (CAR) and Kenya.

In addition to the Legal Eye on the ICC we also produce Women's Voices, a regular e-letter providing updates and analysis on political developments, strategies for the pursuit of justice, the status of peace talks, and reconciliation efforts from the perspective of women's rights activists from the five conflict situations.

With both online e-letters we will also update you about the programmes, legal and political advocacy, campaigns, events, and publications of the Women's Initiatives.

More information about the work of Women's Initiatives for Gender Justice and previous issues of Women's Voices and the Legal Eye can be found on our website at www.iccwomen.org.

CAR :: Update on the Bemba Trial

The trial against Jean-Pierre Bemba Gombo ('Bemba') — the ICC's third trial and the second to include charges for gender-based crimes — is set to begin 14 July 2010. Bemba faces two counts of crime against humanity (murder and rape) and three counts of war crimes (murder, rape and pillaging) for his alleged role in leading attacks perpetrated by the Mouvement de libération du Congo (MLC) in the Central African Republic (CAR).

In the months leading up to trial, one of the outstanding issues to resolve was a Defence application challenging the admissibility of the case under Articles 17 and 19(2) of the Rome Statute and alleging abuse of process.[1] The Defence claimed that Article 17 renders the case inadmissible because the CAR authorities were both willing and able to carry out such a prosecution, that an effective national investigation and prosecution were in fact carried out, and the case is not of sufficient gravity to justify action by the Court. In addition, the Defence alleged an abuse of due process based on the prosecution's failure to disclose evidence regarding complementarity, the misuse of the judicial process for political purposes, and the unlawful arrest and transfer of Bemba to the Court. On 24 June 2010, the Trial Chamber delivered its decision denying both grounds of the Defence application.[2] A detailed summary of this decision will follow in the next issue of Legal Eye on the ICC.


CAR :: Appeals Chamber reverses Pre-Trial Chamber II's decision to grant provisional release to Jean-Pierre Bemba

Bemba remains in detention awaiting the commencement of trial on 14 July, which was postponed from 5 July in an order by Trial Chamber III on 24 June 2010.[3] Since the time of his apprehension and transfer to The Hague on 3 July 2008, Bemba has applied for provisional release five times (per the Court's mandatory review of his detention every 120 days). This article analyses a decision by the Appeals Chamber in December 2009 that reversed the Pre-Trial Chamber's decision to grant Bemba's fourth request for provisional release. Since the issuance of the Appeals Chamber Judgement, the Defence submitted an additional request for interim release on 19 March 2010,[4] but Trial Chamber III denied this request on 1 April 2010.[5]


Procedural history

On 14 August 2009, after Pre-Trial Chambers II and III[6] had denied Bemba's first three applications for interim release,[7] Pre-Trial Chamber II issued its fourth decision on interim release in which it granted the accused's request.[8] This was the first evaluation of Bemba's continued detention following the Pre-Trial Chamber's Decision Confirming the Charges on 15 June 2009. (See the July 2009 issue of the Legal Eye for an analysis of this decision. For a more detailed procedural history, see the 2009 Gender Report Card, pages 127-128.)

On 3 September 2009, the Prosecution was granted leave to appeal. In its appeal, the Prosecution submitted that the Pre-Trial Chamber erred in: (1) granting conditional release without simultaneously determining which conditions to impose; (2) granting release without identifying the State to which Bemba would be released; and( 3) ordering conditional release without making a determination that the State is able to enforce the conditions imposed.


Appeals Chamber decision

On 2 December 2009, the Appeals Chamber reversed Pre-Trial Chamber II's decision granting Bemba conditional interim release (Impugned Decision). The Appeals Chamber found that a decision granting conditional release requires a 'two-tiered examination' resulting in 'a single unseverable decision that grants conditional release on the basis of specific and enforceable conditions.'[9] It thus held that the Impugned Decision was flawed for failing to specify the conditions that make Bemba's release feasible or to identify a state willing to accept him. It determined that the identification of a State willing to accept the person and able to enforce the conditions of provisional release are pre-requisites to granting an accused's request for conditional release. The Appeals Chamber noted that without the cooperation of States Parties, 'any decision of the Court granting conditional release would be ineffective'.[10]

The Pre-Trial Chamber has the authority to grant the interim release of an accused under Article 60(3). This provision requires the Chamber to periodically review the detention of the accused and to alter its decision(s) on continued detention if 'changed circumstances so require'. However, a person shall continue to be detained for as long as the Pre-Trial Chamber is satisfied that the conditions set forth in Article 58(1) are met. These conditions are that, first, the Chamber must continue to find reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court. Second, the Chamber must find the continued detention of the person appears necessary to ensure his or her appearance at trial and that the person does not obstruct or endanger the investigation or proceedings, and to prevent the accused from committing the same or related crimes of which he or she is accused. Pursuant to Article 60(2), if either of these conditions is not met, the Chamber must release the person, with or without conditions. The Appeals Chamber can only intervene in the Pre-Trial Chamber's decision where there are clear errors of law, fact or procedure.[11]

According to the Appeals Chamber, the requirement of 'changed circumstances' under Article 60(3) 'imports either a change in some or all of the facts underlying a previous decision on detention, or a new fact satisfying a Chamber that a modification of its prior ruling is necessary.'[12] The Appeals Chamber found 'clear errors of fact in the assessment of the Pre-Trial Chamber as to whether there existed changed or new circumstances […].'[13]

The Appeals Chamber reviewed each of the factors relied upon by the Pre-Trial Chamber:

• Gravity of the confirmed charges and overall length of the potential sentence.[14]
• Bemba's political and professional position, international contacts and ties.[15]
• Bemba's financial situation and resources.[16]
• Bemba's offer to surrender prior to his arrest and willingness to cooperate.[17]
• Bemba's political aspirations.[18]
• Bemba's good behaviour while in detention.[19]
• Bemba's authorised attendance at his father's funeral.[20]
• Bemba's family ties.[21]

In the Appeals Chamber's view, the Pre-Trial Chamber 'misappreciated [and] disregarded relevant facts' in evaluating each of these factors, and in reaching its conclusion that the entirety of factors before it reflected a 'substantial change of circumstances' under article 60(3) such as to require Bemba's conditional release.[22]

The Appeals Chamber Judgement is available here:


Victims/survivors and CAR activists call attention to threats inherent in Bemba's provisional release

Significantly, the Legal Representatives of victims filed observations requesting permission to participate in the appeal on behalf of participating victims in the case, which the Appeals Chamber granted.[23] The submissions argued that the Pre-Trial Chamber failed to adequately assess the risks to victims and witnesses in the event Bemba is released. They further asserted that pursuant to Rule 119(3) of the Rules of Procedure and Evidence, the Chamber must consult those victims who may be placed at risk as a result of the release, or the imposed conditions of release, prior to issuing a determination.

The threats to and fear of victims/survivors raised by the possibility of Bemba's provisional release were emphasised by women's rights activists and victims/survivors at the 'Women, Peace, Justice, Power' workshop held by the Women's Initiatives and the CAR-based NGO, Organisation pour la Compassion et le Développement des Familles en Détresse (OCODEFAD), from 2-5 November 2009, in Bangui, CAR.

During the workshop, victims/survivors stated their confusion about why the Court could consider the release of the only person currently in custody for the atrocities committed in CAR in 2002 and 2003.[24] They voiced particular concern for their own safety, given that Bemba was arrested due largely to the demands of women and victims calling for justice. Bemba supporters had previously threatened women activists during his confirmation hearing in The Hague.[25] Both victims and activists who demanded accountability reported threats to themselves, their children and family members by Bemba's supporters.[26] Workshop participants expressed their concern that, should Bemba be released, his supporters could assist him in threatening victims and potential witnesses to intimidate them from testifying against him. In a statement released following the workshop in Bangui, the Women's Initiatives joined activists and victims/survivors in strongly opposing any provisional release for Bemba, and called for his trial to begin.[27]

Women's rights activists and victims/survivors came out strongly against Bemba's provisional release in their public statements. They opposed it in their Declaration[28] issued at the close of the workshop and in the Memorandum[29] presented to the Secretary-General's Representative and Head of the United Nations Peace-building Office in CAR (BONUCA) as part of the march of over 2,000 women through Bangui on 4 November 2009. Read more about the workshop and the march in the December 2009 issue of Women's Voices.


Darfur :: Two rebel commanders make initial appearance before the Court

The first months of 2010 have seen several important developments in the Darfur situation with respect to those charged in the 2007 attack against African Union peacekeepers in Haskanita. The Prosecutor had charged three suspects with war crimes in connection to that attack, but until recently only one — Bahr Idriss Abu Garda — had been named publicly. Abu Garda made a voluntary initial appearance before the Court on 18 May 2009. An analysis of Pre-Trial I's decision on the confirmation of charges follows.

On 17 June 2010, the other two suspects in the Haskanita attack, rebel commanders Abdallah Banda ('Banda') and Saleh Mohammed Jerbo Jamus ('Jerbo'), made a voluntary appearance before the Court. The purpose of the hearing was to inform the two accused of the charges against them and their rights under the Rome Statute, and to schedule a confirmation of charges hearing. Pre-Trial Chamber I, the same Chamber that heard evidence against Abu Garda, will hold the confirmation of charges hearing on 22 November 2010.


Darfur :: Pre-Trial Chamber I declines to confirm charges against Abu Garda

On 8 February 2010, Pre-Trial Chamber I handed down a decision on the Confirmation of Charges in the case The Prosecutor v. Bahr Idriss Abu Garda ('Abu Garda').[30] The case against Abu Garda arises out of an attack by rebel forces on UN peacekeepers on 29 September 2007 (the 'Haskanita attack'). The Prosecutor had sought charges against Abu Garda[31] for war crimes, namely, Count 1, violence to life (murder and causing severe injury to peacekeepers);[32] Count 2, intentionally directing attacks against personnel, installations, material, units or vehicles involved in a peacekeeping mission;[33] and Count 3, pillaging.[34] The Prosecutor alleged that Abu Garda was individually criminally responsible as a co-perpetrator or as an indirect co-perpetrator for these crimes.[35] After analysing the evidence presented by the Prosecutor both at the Confirmation of Charges Hearing and in written submissions, the Chamber declined to confirm any of the charges requested by the Prosecutor. This is the first time an ICC Pre-Trial Chamber has declined to confirm all of the charges against an accused.

In reaching this decision, the Chamber examined the admissibility of the case, and found that the case was not being acted on by national authorities and was of sufficient gravity and was therefore admissible before the Court. The Chamber was also satisfied that there were substantial grounds to believe that a non-international armed conflict existed in Darfur at the time relevant to the charges. The Chamber started its analysis with Count 2, in light of the fact that its findings on that Count would have legal consequences for its consideration of the other charges. The Chamber then examined the law applicable to a peacekeeping mission and the requisite mens rea of the perpetrator. With respect to the objective elements of the crime alleged, the Chamber applied the law to the facts in the case before it and was satisfied both that there was an attack directed against Haskanita on 29 September 2007, and that the peacekeeping mission there retained a protected status at the time of the attack.

The Chamber then turned to whether there was sufficient evidence to establish substantial grounds to believe that Abu Garda was a direct or indirect co-perpetrator of the attack as alleged in Count 2. In this regard, the Chamber noted that the Prosecutor had submitted evidence 'purporting to demonstrate' that two meetings had taken place, that Abu Garda had participated in these meetings, and that the subject matter of the meetings was planning the attack on Haskanita.[36] While the Chamber was satisfied that the first meeting took place, they found that the Prosecution did not provide sufficient evidence regarding Abu Garda's alleged participation in the meeting, noting that the evidence is 'weak and unreliable due to the many inconsistencies'.[37] The Chamber was not however satisfied that the second meeting took place as alleged by the prosecution. As to both meetings, the Chamber concluded that the evidence is 'so scant and unreliable that the Chamber is unable to be satisfied that there are substantial grounds to believe that [Abu Garda] participated in any meeting in which a common plan to attack [Haskanita] was agreed upon'.[38]

The Chamber then examined whether the existence of a common plan could be inferred from Abu Garda's alleged conduct, namely by issuing orders to the forces and commanders, or by personally leading and directly participating in the attack. The Chamber examined the evidence provided by a number of witnesses, with respect to Abu Garda's relationship to and position in the rebel group Justice and Equality Movement (JEM) at the time of the attack. They found that the evidence presented did not support the conclusion that Abu Garda exercised control over at least one of the rebel groups alleged to have carried out the attack.

With respect to evidence of Abu Garda personally leading and directly participating in the attack, the Chamber first noted that the Prosecution had claimed both that he directly participated in the attack and that he did not. The Chamber then went on to analyse the evidence presented, and found that 'the evidence tendered by the Prosecution, far from establishing [Abu Garda's] participation in the attack, seems to concur with the submissions made by the Defence to the effect that [Abu Garda] did not personally participate in the attack on Haskanita'.[39] The Chamber concluded that 'the evidence brought by the Prosecution is not sufficient to establish substantial grounds to believe that the existence of a common plan to attack the MGS Haskanita can be inferred from any of the conducts listed by the Prosecution as the alleged essential contribution of Abu Garda to the implementation of a common plan.[40] Following on this analysis the Chamber found it unnecessary to analyse the evidence with respect to Counts 1 and 3, and declined to confirm any charges against Abu Garda.

Judge Tarfusser filed a separate opinion fully concurring with the decision but taking issue with the reasoning. In particular, Judge Tarfusser noted that 'the lacunae and shortcomings exposed by the mere factual assessment of the evidence are so basic and fundamental that the Chamber need not conduct a detailed analysis of the legal issues pertaining to the merits of the case'.[41] He felt that the Chamber should have refrained from legally characterising the historical events of the attack on Haskanita, 'in the ascertained absence of a link between the events as charged and [Abu Garda]'.[42]

Pre-Trial Chamber I's decision on the confirmation of charges is available here:


Denial of Prosecution's request to appeal the Confirmation Decision

The Prosecution filed a request for leave to appeal the decision on the confirmation of charges on 15 March 2010,[43] raising three issues discussed below. Three days later the Legal Representatives of Victims filed an application in support of the Prosecutor's request.[44] On 23 April 2010, Pre-Trial Chamber I issued a decision denying the request to appeal.[45]

The Prosecution's first assignment of error was that the Chamber applied a higher evidentiary threshold than the standard required for the Prosecution to prove at the confirmation stage of the proceedings. The Prosecution argued that the standard applied by the Chamber — 'an in-depth assessment of the evidence' — was appropriate for the trial phase, but for the confirmation phase 'the Pre-Trial Chamber should accept as reliable the Prosecution's evidence (so long as it is relevant and admissible)'.[46] The Pre-Trial Chamber found no merit to the argument that evidence is to be assessed differently at the pre-trial and trial phases. Rather, the difference between the phases is the standard of proof applied. At the pre-trial phase the Prosecution must show 'sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged', while at the trial phase the Prosecution must prove the guilt of the accused 'beyond a reasonable doubt'.[47] The Chamber thus found this issue to constitute a disagreement with the Chamber's assessment of the evidence rather than an appealable issue under Article 82(1)(d).

Second, the Prosecution alleged that the Pre-Trial Chamber applied the incorrect criteria for determining the existence of an organised armed group under the control of Abu Garda and whether Abu Garda exercised 'effective control', which led the Chamber to ignore relevant facts that would have supported confirmation. The Chamber explained that it first analysed whether a common plan existed, and finding none, did not proceed to examine evidence regarding the mode of liability.

Third, the Prosecution contended that the Chamber failed to consider evidence of orders Abu Garda gave in preparation for the attack or other evidence that pointed to the existence of a common plan, such as Abu Garda's movements with the rebels, a meeting with the attackers, and events that followed the attack. As with the first issue, the Chamber found that the Prosecutor merely disagreed with the Chamber's assessment of the evidence and did not present an appealable issue.

In light of the Pre-Trial Chamber's failure to confirm the charges against Abu Garda, the Prosecution must now rely on additional evidence to support the charges against Banda and Jerbo, as the two other Haskanita accused were originally charged together with Abu Garda.[48] At their confirmation hearing on 22 November they will face the same three charges as Abu Garda (violence to life, in the form of murder, whether committed or attempted; intentionally directing attacks against personnel, installations, materials, units, and vehicles involved in a peacekeeping mission; and pillaging).

Pre-Trial Chamber I's denial of the Prosecution's request to appeal the confirmation decision is available here: http://www.icc-cpi.int/iccdocs/doc/doc863095.pdf



1   ICC-01/05-01/08-704-Red3-tENG; ICC-01/05-01/08-704-Conf-Corr.
2   ICC-01/05-01/08-802.
3   ICC-01/05-01/08-803.
4   ICC-01/05-01/08-730.
5   ICC-01/05-01/08-743, para 29.
6   In March 2009, the Presidency merged Pre-Trial Chamber III with Pre-Trial Chamber II, and assigned the situation in the Central African Republic to Pre-Trial Chamber II. ICC-01/05-01/08-390.
7   See, ICC-01/05-01/08-49, (confirmed by the Appeals Chamber, ICC-01/05-01/08-323), ICC-01/05-01/08-321, and ICC-01/05-01/08-403.
8   ICC-01/05-01/08-475.
9   ICC-01/05-01/08-631, para 105.
10   Id, paras 106-107.
11   Id, paras 57-63.
12   Id, para 60.
13   Id, para 65.
14   Id, paras 69-70.
15   Id, para 72.
16   Id, paras 73-74.
17   Id, para 75.
18   Id, paras 76-78.
19   Id, paras 79-81.
20   Id, paras 82-83.
21   Id, paras 84-87.
22   Id, para 87.
23   ICC-01/05-01/08-479 (request by the Legal Representatives of Victims); ICC-01/05-01/08-500 and ICC-01/05-01/08-566 (the Appeals Chamber's decision granting the request and the reasons for the decision, respectively). The Legal Representatives subsequently filed a submission (ICC-01/05-01/08-507) and a corrigendum (ICC-01/05-01/08-507-Corr-Anx). The Appeals Chamber rejected the corrigendum, as it contained an additional sentence and a footnote, and did not merely correct typographical errors.
24   Statement from Women, Peace, Justice, Power Workshop, Women's Initiatives for Gender Justice, 6 November 2009, in In Pursuit of Peace/ À la poursuite de la paix, April 2010, available at http://www.iccwomen.org/news/berichtdetail.php?we_objectID=51
25   Women's Voices, March 2009 issue, available at http://www.iccwomen.org/news/docs/Womens_Voices_Mar2009/WomVoices_Mar09.html
26   See Women's Voices, October 2009 issue, available at http://www.iccwomen.org/news/docs/Womens_Voices_1009/WomVoices1009.html
27   Statement from Women, Peace, Justice, Power Workshop, Women's Initiatives for Gender Justice, 6 November 2009 in In Pursuit of Peace/ À la poursuite de la paix, April 2010, available at http://www.iccwomen.org/news/berichtdetail.php?we_objectID=51
28  Declaration by Women Leaders, Victims and Human Rights Activists, 5 November 2009, in In Pursuit of Peace/À la poursuite de la paix, April 2010, available at http://www.iccwomen.org/news/berichtdetail.php?we_objectID=51
29   Women's Memorandum on Justice and Peace in the Central African Republic, 4 November 2009, in In Pursuit of Peace/À la poursuite de la paix, April 2010, available at http://www.iccwomen.org/news/berichtdetail.php?we_objectID=51
30   ICC-02/05-02/09-243-Red. For further background on the Abu Garda case, see the 2009 Gender Report Card, pages 61-62.
31   The Prosecutor has also alleged that two other rebel commanders led the attack together with Abu Garda. These commanders have not yet been named by the Prosecutor. See ICC-02/05-162.
32   Article 8(2)(c)(i).
33   Article 8(2)(e)(iii).
34   Article 8(2)(e)(v).
35   Article 25(3)(a).
36  ICC-02/05-02/09-243-Red, para 166.
37   Id, para 173.
38   Id, para 179.
39   Id, para 228.
40   Id, para 231.
41   Id, Separate Opinion of Judge Cuno Tarfusser, para 3.
42   Id, Separate Opinion of Judge Cuno Tarfusser, para 6.
43   ICC-02/05-02/09-252-Red.
44   ICC-02/05-02/09-257-Conf.
45   ICC-02/05-02/09-267.
46   ICC-02/05-02/09-252-Red, para 18.
47   ICC-02/05-02/09-267, para 9.
48   ICC-OTP-20100616-PR548.


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