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The Women's Initiatives for Gender Justice is an international women's human rights organisation that advocates for gender justice through the International Criminal Court (ICC) and through domestic mechanisms, including peace negotiations and justice processes. We work with women most affected by the conflict situations under investigation by the ICC.
The Women's Initiatives for Gender Justice works in Uganda, the Democratic Republic of the Congo, Sudan, the Central African Republic, Kenya, Libya and Kyrgyzstan.
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Welcome to the March 2012 issue of Legal Eye on the ICC, a regular eLetter 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 seven Situations under investigation: Uganda, the Democratic Republic of the Congo (DRC), Darfur (Sudan), the Central African Republic (CAR), Kenya, Libya and Côte d'Ivoire.
In addition to the Legal Eye on the ICC, we also produce Women's Voices, a regular eLetter providing updates and analysis on political developments, the pursuit of justice and accountability, the participation of women in peace talks and reconciliation efforts from the perspective of women's rights activists within armed conflict situations, specifically those countries under investigation by the ICC.
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.
On 14 March 2012, Trial Chamber I unanimously convicted Thomas Lubanga Dyilo (Lubanga) of the war crimes of conscripting and enlisting children under the age of 15 and using them to participate actively in hostilities from 1 September 2002 to 13 August 2003. Lubanga is the former President of the Union des patriotes congolais (UPC) and Commander-in-Chief of the Forces patriotiques pour la libération du Congo (FPLC). Lubanga's conviction is the first time a Trial Chamber of the ICC has issued a judgement on the guilt or innocence of the accused. The case involved two stays of proceedings, an adjournment, 67 witnesses and the participation of 129 victims. The sentencing judgement, as well as the reparations order, will be issued separately.
'The conviction today is very important in demonstrating that no-one is beyond the reach of the law and that militia leaders operating in remote areas can be held accountable. This is important for the people of Ituri, for eastern DRC and for all war-torn countries especially those conflict zones involving child soldiers,' said Brigid Inder, Executive Director of the Women's Initiatives for Gender Justice. The Women's Initiatives has been working on the Lubanga case since 2006.
'This case has involved six years of work for the Women's Initiatives and our partners including a filing to the Judges regarding the exclusion of sexual violence charges, girl soldiers and the impact of the limited charges on victims participation issues; the submission of a dossier to the Office of the Prosecutor in 2006 including interviews with 31 victims/survivors of gender-based crimes allegedly committed by Lubanga's UPC militia group; the relocation of several women's human rights defenders in Ituri due to threats to their safety as a result of their local advocacy for victims and accountability; and support for victim participants and their legal representatives to ensure the gender dimensions and experiences of former girl soldiers were recognised in the public record of this case,' Brigid Inder said.
Due to the Prosecution's decision not to charge Lubanga with gender-based crimes, the Trial Chamber could not make any findings of fact on this issue. However, the Chamber left open the possibility as to whether sexual violence can be considered for sentencing and reparations. At the request of the Defence, the Trial Chamber will hold a separate hearing in due course on matters related to sentencing and reparations.
Two Judges issued separate or dissenting opinions to the trial judgement. Judge Fulford issued a separate opinion on the scope of Article 25(3)(a) of the Statute, regarding an individual who is alleged to have committed a crime 'jointly with another'. Judge Odio-Benito issued a separate and dissenting opinion concerning three particular aspects of the judgement, including the legal definition of the crimes of enlistment, conscription and using children under the age of 15 to directly participate in hostilities.
A detailed analysis of the judgement and of the separate and dissenting opinions will be provided in our next Special Edition of the Legal Eye on the ICC eLetter.
■ Read the decision of Trial Chamber I convicting Lubanga and the two separate and dissenting opinions.
■ Read the press statement by the Women's Initiatives for Gender Justice on the ICC's first conviction.
■ See also the time line of the case against Thomas Lubanga Dyilo.
■ Read 'The ICC, child soldiers and gender justice', Brigid Inder, 21 November 2011, here.
On 16 December 2011, Pre-Trial Chamber I, in a majority decision, declined to confirm any of the charges against Callixte Mbarushimana (Mbarushimana) and ordered his immediate release from International Criminal Court (ICC) custody. Following the Abu Garda case in the Darfur Situation, this is the second time a Pre-Trial Chamber has declined to confirm any charges against the accused. Pre-Trial Chamber II subsequently declined to confirm charges against Kosgey and Ali, two of six suspects in the Kenya Situation. Following these two decisions, 4 out of a total of 14 individuals who have appeared before the Court for a confirmation of charges hearing have been released without charge. The Judges have determined that the Prosecution has not provided sufficient evidence to confirm the charges against just under one-third of the individuals who have come into the Court's custody or voluntarily appeared in response to a summons to appear.
The case against Mbarushimana contained the broadest range of charges of gender-based crimes against any ICC suspect to date: eight out of 13 charges against Mbarushimana were for gender-based crimes, including rape, torture, mutilation, cruel treatment, other inhumane acts and persecution. These charges reflected the high rate of rape and other forms of sexual violence committed in the eastern DRC. The failure to have these charges confirmed is a great loss for victims/survivors in North and South Kivu, who may not have other opportunities to access justice. As discussed below, the Pre-Trial Chamber identified a number of problems with the Prosecution's investigation and presentation of evidence in this case, which contributed to the Chamber's decision not to confirm any charges.
Mbarushimana was charged with crimes related to his alleged responsibility as Executive Secretary of the Forces démocratique pour la libération du Rwanda (FDLR). The case was the most recent case in the Situation of the Democratic Republic of the Congo (DRC) and the first and only case to date arising out of investigations in North and South Kivu. He is the fourth person to have been arrested by the ICC in relation to the DRC Situation.
Following the decision declining to confirm any charges against the accused, on 23 December 2011 Mbarushimana was released to France. However, upon arrival there he was reported to have been rearrested by the French authorities, to be tried nationally for his alleged responsibility for the 1994 Rwandan genocide. The Rwandan authorities have also expressed interest in trying Mbarushimana for his alleged involvement in the genocide.
Confirmation of charges decision
The Prosecution charged Mbarushimana with eight counts of war crimes: attacking civilians, murder, mutilation, cruel treatment, rape, torture, destruction of property and pillaging. Despite finding the contextual elements for war crimes had been satisfied, the Chamber expressed concern 'that the charges and the statements of facts in the DCC had been articulated in such vague terms that the Chamber had serious difficulties in determining, or could not determine at all, the factual ambit of a number of the charges'.[24 Specifically, the Chamber observed that the evidence submitted by the Prosecution in regards to a number of incidents either came from a single UN or NGO report the source of which is anonymous, created doubt about who was the subject of the attack, or was in fact inconsistent with UN, NGO and media reports.
Having analysed the information submitted to it by the Prosecution, the Pre-Trial Chamber found substantial grounds to believe the following war crimes were committed by the FDLR: (i) attacks against civilians; (ii) murder; (iii) mutilation; (iv) rape; (v) cruel treatment; (vi) destruction of property; and (vii) pillaging. These charges were limited geographically to only five of the 25 incidents referred to by the Prosecution. The Chamber did not find substantial grounds to believe torture as a war crime was committed by the FDLR, citing to insufficiency of evidence submitted by the Prosecution. However, as explained in more detail below, on the basis of the evidence submitted to it by the Prosecution, the Chamber did not find there were substantial grounds to believe that Mbarushimana was individually criminally responsible for these alleged crimes committed by the FDLR and as such declined to confirm any charges against Mbarushimana.
With regard to the other locations where the Chamber did not find substantial grounds to believe the FDLR committed war crimes, the Chamber noted that, although finding substantial grounds to believe certain crimes had been committed, the evidence submitted by the Prosecution about the identity of the perpetrators of the violence was not sufficient and 'either based on accounts of third parties, or assumptions'. As such, the Chamber was unable to conclude that there were substantial grounds to believe that the acts were committed by the FDLR. Similarly, for a number of the charges, the Chamber noted that the Prosecution failed to provide any evidence substantiating the attacks.
Crimes against humanity
The Prosecution claimed that the FDLR committed widespread attacks against the civilian population as part of a common plan to create a 'humanitarian catastrophe' in eastern DRC, with the aim of forcing the international community to intervene and to put pressure on the governments of the DRC and Rwanda to negotiate a political settlement with FDLR leaders allowing for their return to Rwanda. Mbarushimana was alleged to be one of the leaders of the political wing of the FDLR, based in Europe, and to have contributed to the group's common plan through his role on the FDLR's Steering Committee and his direction of the FDLR's media campaign from Paris. The Prosecution alleged that Mbarushimana issued 'extortive negotiation demands' on behalf of the FDLR and accused him of 'publicly, immediately, repeatedly, vehemently and falsely deny[ing] the FDLR's direct involvement in the crimes'. The Prosecution charged Mbarushimana with five counts of crimes against humanity: murder, inhumane acts, rape, torture and persecution.
Citing to transcripts of witness interviews submitted by the Prosecution, the Chamber found that none of the FDLR insider witnesses 'directly and spontaneously' confirmed the existence of an order to create a 'humanitarian catastrophe' emanating from the FDLR leadership. Significantly, the Chamber noted that the former FDLR combatants who did acknowledge this order, 'mostly do so after specific, explicit and insistent prompting by the investigator, and they attach to such order a meaning that is different to that which is alleged by the Prosecution'. In addition, the Chamber noted that several witnesses actually referred to the need to protect civilians.
The Pre-Trial Chamber noted that other pieces of evidence purportedly supporting the Prosecution's allegation of the existence of this order/policy are a Human Rights Watch report and a statement taken by a UN Group of Experts on the DRC. The majority noted, however, that 'this qualifies at best as indirect evidence, and on its own is not enough to contradict or outweigh the information contained in direct evidence gathered from insider witnesses'. In light of this finding and the discrepancies between the Prosecution's allegations and the evidence submitted, the majority did not find substantial grounds to believe that the FDLR leadership pursued a policy of attacking the civilian population. In the absence of such a policy, the majority did not find substantial grounds to believe any of the charged crimes against humanity had been committed.
Individual criminal responsibility
The Prosecution alleged that Mbarushimana was responsible for the crimes committed by the FDLR under Article 25(3)(d) of the Rome Statute. The Chamber considered that contributions giving rise to individual criminal responsibility under Article 25(3)(d) need to reach 'a certain threshold of significance below which responsibility under this provision does not arise'. The Chamber held that in order to be held criminally responsible under Article 25(3)(d) 'a person must make a significant contribution to the crimes committed or attempted', taking into account the person's relevant conduct and the context in which this conduct is performed [emphasis added].
Observing its conclusions regarding the non-existence of a policy satisfying the contextual elements of crimes against humanity, the Chamber stressed that it could only assess the suspect's alleged responsibility for the seven counts of war crimes for which it found there were substantial grounds to believe these had been committed by the FDLR. However, in analysing the information submitted to it by the Prosecution, the majority did not find that the suspect 'provided any contribution to the commission of ... crimes, even less a 'significant' one'.
The Chamber observed that indeed there were substantial grounds to believe that throughout 2009, Mbarushimana acted as the FDLR's Executive Secretary and was a member of its Executive and Steering Committees. Similarly, the Chamber found substantial grounds to believe that in this capacity, Mbarushimana issued several press statements and often spoke to journalists on behalf of the FDLR. However, the Chamber did not find any evidence that Mbarushimana had any power over the commanders and soldiers on the ground. It stated that 'both his residence in Paris and the very nature of his tasks – limited as they were to issues concerning the relationship of the FDLR with the media and the external world – make it apparent that there is no link between him and the FDLR soldiers and troops on the ground'. In fact, the Chamber cited to several witness statements indicating that although Mbarushimana was the de jure Executive Secretary of the FDLR, given his residence abroad, it was in fact someone else, who was not identified by name in the Chamber's decision, who 'took over the leadership of the commissioners within the Executive Committee' and reported to Mbarushimana. Finding that 'by far the most significant responsibility vested in the suspect was the issuance of press releases on behalf of the organisation', the Chamber did not find substantial grounds to believe that Mbarushimana 'contributed to the FDLR's alleged plan of attacking civilians by agreeing to conduct an international media campaign in support of it'. Similarly, the Chamber did not find substantial grounds to believe Mbarushimana had knowledge of the crimes committed and that he denied these crimes in furtherance of a policy of the organisation. In addition, the Chamber found that the evidence submitted by the Prosecution failed to provide substantial grounds to believe this contribution had any impact on the commission of crimes on the ground.
Finally, although finding that there may be strong indications that Mbarushimana attempted to encourage the troops through his words in press releases and radio speeches, the Chamber observed that only one witness can even recall these statements. At least seven former FDLR soldiers said they had not heard of Mbarushimana or his role within the FDLR. In addition, several insider witnesses in fact clarified in their statements that Mbarushimana's power within the FDLR was very limited, being a 'politician' or 'only a press-person'. The Chamber found that 'the little evidence which might support the allegation that the press releases and radio appearances had some impact on the FDLR's military efforts is either too limited or too inconsistent for it to take the view that the allegation is proven to the requisite standard'.
Accordingly, the majority of Pre-Trial Chamber I found that the evidence submitted to it by the Prosecution did not provide substantial grounds to believe that Mbarushimana is individually criminally responsible for the alleged crimes committed by the FDLR under Article 25(3)(d) of the Statute. In the absence of finding Mbarushimana criminally responsible, the Chamber, by majority, declined to confirm any of the charges against Mbarushimana and ordered his immediate release.
In the majority decision, Pre-Trial Chamber I expressed concern about the investigative practices of the Office of the Prosecutor, about the vagueness of the charging document submitted by the Prosecution, and about the Prosecution's reliance on NGO and other reports to substantiate charges. In respect of the interviewing techniques of the Prosecution investigators, the Chamber noted:
The reader of the transcripts of interviews is repeatedly left with the impression that the investigator is so attached to his or her theory or assumption that he or she does not refrain from putting questions in leading terms and from showing resentment, impatience or disappointment whenever the witness replies in terms which are not entirely in line with his or her expectations. Suggesting that the witness may not be 'really remembering exactly what was said', complaining about having 'to milk out' from the witness details which are of relevance to the investigation, lamenting that the witness 'does not really understand what is important' to the investigators in the case, or hinting at the fact that the witness may be 'trying to cover' for the suspect, seem hardly reconcilable with a professional and impartial technique of witness questioning. Accordingly, the Chamber cannot refrain from deprecating such techniques and from highlighting that, as a consequence, the probative value of evidence obtained by these means may be significantly weakened.
On the opening day of the confirmation of charges hearing on 16 September 2011, the Defence raised a number of challenges to the content of the Document Containing the Charges (DCC), including an alleged lack of specificity. Briefly addressing some of these concerns, the Pre-Trial Chamber expressed concern about the use by the Prosecution of the words 'include but are not limited to' to refer to the locations of incidents relied upon in the DCC without providing any reasons as to why these other locations cannot be specifically pleaded. The Chamber stressed that 'the Prosecution must know the scope of its case, as well as the material facts underlying the charges that it seeks to prove, and must be in possession of the evidence necessary to prove those charges to the requisite level in advance of the confirmation hearing. The DCC must contain a statement of the material facts underlying the charges, to include the dates and locations of the alleged incidents to the greatest degree of specificity possible in the circumstances.'
The issues identified by the Chamber in their decision reinforce concerns raised by the Women's Initiatives for Gender Justice since 2010 about how the Prosecution constructs charges. In a number of instances, charges appear to have been constructed based on a desk review of open-source information, including from UN reports, NGO reports or information provided by governments, press clippings or newspaper articles, with the Prosecution subsequently attempting to conduct field investigations to substantiate these charges. Women's Initiatives' research shows in some instances the Office of the Prosecutor may rely too heavily on this open-source to construct charges at the application for arrest warrant or summons to appear and confirmation of charges stages of proceedings, rather than a solid reliance on witness testimonies and other primary evidence. An initial review conducted by the Women's Initiatives of the publicly available arrest warrant applications further shows a liberal use of open source material in cases for which charges have been dismissed, as in the Mbarushimana case.
Women's Initiatives research has shown that more than 50% of the charges for gender-based crimes in cases for which confirmation hearings have been held, have been dismissed before trial, making gender-based crimes the most vulnerable category of crimes at the ICC. This high rate of attrition can be attributed in part to the Prosecution's use of open-source information and failure to investigate thoroughly. With more than half of all charges for gender-based crimes which reach the confirmation stage are not being successfully confirmed, no other category of charges before the ICC faces this level of dismissal and contention.
Dissenting opinion by Presiding Judge Monageng
Presiding Judge Monageng appended a dissenting opinion, disagreeing with the majority's decision to decline to confirm the charges against Mbarushimana. In contrast to the majority, Judge Monageng found that the evidence presented by the Prosecution did establish to the requisite standard of proof that there existed an organisational policy to create a 'humanitarian catastrophe' and to attack the civilian population and that Mbarushimana 'did facilitate the commission of crimes to such an extent that they can be classified as a significant contribution'. Judge Monageng argued that the majority placed too much emphasis on apparent inconsistencies between the evidence and the Prosecution's allegations. While acknowledging that there are some differences between the allegations and the evidence presented, according to Judge Monageng, the entirety of the evidence confirms the Prosecution's allegations. Significantly, she stated that 'what the majority sees as 'insufficient evidence' [she] see[s] as 'triable issues' deserving of the more rigorous fact finding that only a Trial Chamber can provide'.
On the basis of the evidence submitted by the Prosecution, Judge Monageng would have confirmed murder, rape and other inhumane acts as crimes against humanity and attacks against the civilian population, murder, mutilation, cruel treatment, rape, destruction of property and pillaging as war crimes. Judge Monageng did not find substantial grounds to believe that torture or persecution as crimes against humanity were committed.
The Prosecution appeal
On 27 December 2011, the Prosecution requested leave to appeal the confirmation decision. On 1 March 2012, Pre-Trial Chamber I granted the Prosecution leave to appeal the following three issues:
At the time of writing, no decision has been issued by the Appeals Chamber.
■ Read the decision on the confirmation of charges and Presiding Judge Monageng's dissenting opinion.
■ Read the Prosecution's request for leave to appeal the decision on the confirmation of charges.
1 Trial Chamber I is composed of Presiding Judge Sir Adrian Fulford, Judge Elizabeth Odio-Benito and Judge Renée Blattmann.