Category Archives: ICC

International Criminal Court says no to suspension of reparations process in Jean-Pierre Bemba Case

Convicted Congolese warlord Jean-Pierre Bemba Gombo received a huge setback recently when the Trial Chamber of the International Criminal Court on May 5, 2017 rejected his appeal which urged the Court not to continue with reparation proceedings till his pending appeal was decided.  In the case of the Prosecutor v. Jean-Pierre Bemba Gombo, decision on the defence’s request to suspend the reparations proceedings, the Court observed that Article 75 of the Rome Statute gives the Chamber the power to make a reparations order against any convicted person.

Post the conviction and the order on sentence, in July 2016 the Chamber made an order requesting submissions relevant to reparations and in October 2016 the Prosecution, Defence, Legal Representative of Victims (LRV), Office of Public Counsel for Victims (OPCV), Trust Fund for Victims (TFV) and the Registry filed their observations on reparations. Finally in February 2017, the Chamber issued an order inviting submissions on experts to assist the Chamber in its determinations on reparations.

The defence team of Bemba Gombo urged the Chamber to refrain from instructing expert witnesses and to suspend the reparations process at the latest after the selection of any expert(s) and the finalisation of any letter of instruction as it argued that it was inconsistent with the rights of the accused as it operated as an effective presumption of guilt and also placed a heavy burden on the defence’s resources. It argued that even in the Katanga case, the reparation proceedings started only after the withdrawal of the appeals when the LRVs asked the Chamber to set a schedule for filing observations on the principles for reparations in August 2014, two months after the parties had withdrawn their appeal.

It further argued that as reparation orders were intrinsically linked to the individual whose criminal responsibility was established in a conviction and whose culpability for these criminal acts was determined in a sentence and that an accused should not have to remedy harms that are not the result of the crimes for which he was convicted, continuing with the reparations process whilst there was an extant live appeal against conviction was inappropriate.

But the Chamber refused holding that the Appeals Chamber in Prosecutor v Lubanga (Judgment on the appeals against the “Decision establishing the principles and procedures to be applied to reparations”) had identified five constitutive elements, which, at a minimum, must be contained in an order for reparations: 1) it must be directed against the convicted person; 2) it must establish and inform the convicted person of his or her liability with respect to the reparations awarded in the order; 3) it must specify, and provide reasons for, the type of reparations ordered, either collective, individual or both; 4) it must define the harm caused to direct and indirect victims as a result of the crimes for which the person was convicted, as well as identify the modalities of reparations that the Trial Chamber considers appropriate based on the circumstances of the specific case before it; and 5) it must identify the victims eligible to benefit from the awards for reparations or set out the criteria of eligibility based on the link between the harm suffered by the victims and the crimes for which the person was convicted. For addressing these elements the Chamber needed to take a number of preparatory steps. Also the legal texts of the Court contemplated that reparation proceedings may commence in parallel to a pending appeal. Referring to the established practice that preparatory steps to facilitate and expedite the reparations proceedings are launched following a conviction, it held that the issuance of a reparations order is not prejudicial to the rights of the convicted person irrespective of whether there is an appeal against the conviction decision.

The Chamber further observed that in the present proceedings reparations were only at a preliminary stage. Finally Article 64(3)(a) of the Rome Statute gave the Trial Chamber the power to suspend the proceedings if this was necessary to facilitate the fair and expeditious conduct of the proceedings. But suspending the reparations case would in fact be fatal to the fair and expeditious conduct of the proceedings.  It held that the suspension of all reparations proceedings until after the Appeals Chamber had rendered its decision would substantially impact the victims’ interests to access reparations in a timely manner. Thus the Court disallowed the relief sought by Bemba Gombo.

‘Universal Jurisdiction’ enters African continent: The landmark verdict of the Extraordinary African Chambers (Senegal) in the Hissène Habré “Africa’s Pinochet” case.

After a long and tortuous wait for more than 25 long years, justice has been finally delivered to tens of thousands of victims of Hissène Habré. The case moved from domestic to regional to International Court of Justice and was finally decided by an African court formed specially for this trial, the Extraordinary African Chambers, with its seat in Dakar, the capital city of Senegal on May 30, 2016. Hissène Habré was President of the Republic of Chad from 1982 to 1990 when he was deposed by Idriss Déby Itno. Habré has been living in exile in Senegal ever since. Habré was first indicted by a Senegalese judge in 2000 when a group of Chadian victims filed a complaint against Habré in Senegal. But the appellate courts dismissed the case on the ground that Senegalese courts lacked competence to try crimes committed abroad.

Some Habré victims who were Belgian citizens of Chadian origin, then filed a case against Habré in Belgium in 2000. The Belgian authorities investigated the case for four years and in 2005 the Belgian investigating judge issued an international warrant in absentia for the arrest of Habré, indicted as the perpetrator or co-perpetrator, of serious violations of international humanitarian law, torture, genocide, crimes against humanity and war crimes, on the basis of which Belgium requested the extradition of Habré from Senegal. But in November 2005, the Chambre d’accusation of the Dakar Court of Appeal ruled against Belgium’s extradition request, holding that as a court of ordinary law it could not extend its jurisdiction to matters relating to the investigation or prosecution of a Head of State for acts allegedly committed in the exercise of his functions.

In July 2006, the African Union called on Senegal to prosecute Habré on behalf of Africa before its own courts. Senegalese law was amended to give the country’s courts explicit universal jurisdiction over international crimes, including torture and crimes against humanity. Then the Court of Justice of the Economic Community of West African States (ECOWAS) ruled that Habré should be tried before a “special ad hoc procedure of an international character.” But Senegal again withdrew from the negotiations.

Then Belgium bought the matter before the International Court of Justice which found that the Republic of Senegal, by failing to make immediately a preliminary inquiry into the facts relating to the crimes allegedly committed by Habré and also by failing to submit the case of Habré to its competent authorities for the purpose of prosecution, had breached its obligation under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It thus held that the Republic of Senegal must, without further delay, submit the case of Habré to its competent authorities for the purpose of prosecution, if it does not extradite him. The new Senegalese government of Macky Sall (after the ouster of the Abdoulaye Wade who was considered as shielding  Habré from prosecution) reacted quickly to the ICJ judgment and negotiations resumed between Senegal and the AU which lead to an agreement to create the Extraordinary African Chambers to conduct proceedings within the Senegalese judicial system. The Extraordinary Chambers were then instituted in Dakar.

The process before the Extraordinary African Chambers was governed by its own Statute and the Senegalese Code of Criminal Procedure. The chambers have four levels. It consists of an Investigative Chamber with four Senegalese investigative judges, an Indicting Chamber of three Senegalese judges, a Trial Chamber, and an Appeals Chamber. The Trial Chamber and the Appeals Chamber each have two Senegalese judges and a president from another African Union member state.

On 16 February 2015, the Court charged Habré with the crimes of torture, homicide, executions, illegal detention, breach of physical integrity, torture, and abduction of civilians. There were various allegations including the repression of political opponents, the population in the the south, the Hagarai, and the Zagawa. After Habré took power, he began to undertake mass arrests. Initially, these were carried out against political opponents but later any Chadian citizen suspected of being part of the opposition was arrested. A 1992 Chadian Truth Commission accused Habré’s government of systematic torture and said that 40,000 people died during his rule. Most abuses were carried out by his political police, the Documentation and Security Directorate (DDS). This included extrajudicial arrests and interrogations conducted by the DDS and the BSIR, followed by incarceration in N’Djamena in DDS prisons where systematic torture was undertaken.

The Court held that there were attacks against the civil population in Chad constituting the crime of torture and crimes against humanity. Also women were forced to have sexual relationships with the DDS officers, prisons authorities, and soldiers of the BSIR which amounted to torture, rape, and crimes against humanity. There were also crimes against humanity for sexual slavery regarding the offenses in the camps. The Court thus found Habré guilty of the crimes against humanity of rape, forced slavery, murder, mass executions, kidnapping and disapearing, torture and the autonomous crime of torture. It further found him guilty of war crimes of murder, torture, inhuman treatments and illegal detention. He has been awarded life imprisonment. It is for the first time that an African Union backed court had tried and convicted a former ruler for human rights abuses.

African quagmire metamorphosed to cataclysmic carnage : DR Congo, Ntaganda, Kabila and the road ahead (PART 4 of 5)

The escalating disquietude of Rwanda and Uganda with Kabila government led to a protracted tragedy of modern Africa. Kagame’s plan for another regime change in Kinshasa was anticipated by Kabila resulting in his dismissing all Rwandan soldiers and ordering them to return home. Kabila even started recruiting ex-Hutu militias who had been accused of killing Tutsis in the 1994 genocide.

A rebellion group by the name of Rassemblement Congolais pour la Démocratie (RCD) alongwith Congolese Tutsis and Banyamulenge (ethnic Tutsi of South Kivu of Congo), with active assistance of the Rwandan Army, started a rebellion against Kinshasa. The rebels initially made rapid progress but intervention by neighbouring countries like Angola and Zimbabwe in favour of Congo turned the tables. Robert Mugabe’s dream of becoming a regional power broker and Angola’s concern about its internal security were the primary reasons for their involvement in this foreign crisis. Namibia and Chad soon joined the fray assisting Kabila, whereas Tutu led Burundi government took the side of Rwanda and Uganda. Active military assistance of Angola and Zimbabwe saved Kabila’s regime.

The war, though ostensibly fought for saving the national governments, was primarily to capture and exploit the vast natural resources of Congo. Unsurprisingly, Angola and Zimbabwe Generals started looting, despoiling and grabbing diamond, gold and other mining businesses. On the other hand, Rwanda and Uganda turned eastern Congo into their own fiefdom.  All the belligerents indiscriminately plundered the natural resources at an unprecedented scale. Gradually RCD splintered into rival factions. The war became even more complicated with multitudinous factions changing sides as per their financial interests. Banyamulenge fighters also split into separate factions. Rwanda and Uganda even fought among themselves for the spoils of the war! It seemed as if war would never end. But Kabila’s assassination in January 2001 changed the scenario. Kabila Jr., ‘western educated’ and ‘english speaking’, but a political greenhorn, was put in place of his father.  Since Kabila Sr. was considered as the major impediment to a peaceful settlement of the war, as he adamantly refused to share power, the change of guard was seen as a positive development towards the peace negotiations. Gradually Rwanda too found it difficult to sustain the war as RCD splintered and many joined the Congo government. Many from the Banyamulenge changed sides. Finally Suncity agreement, in April 2002, provided the framework of the multipartite government in Congo. Later in July, the main belligerents Rwanda and DRC signed a peace deal (Pretoria Accord). Congo and Uganda also signed a peace deal (Luanda Agreement). These peace deals led to the withdrawl of Rwandan and Ugandan troops from DRC’s territory and led to a substantial contraction in hostilities. In December 2002, the primary warring factions like the national government, MLC (Mouvement pour la Liberation du Congo, a group backed by Uganda), RCD, split factions of RCD as well as the opposition party alongwith representatives of civil society signed an agreement which formally ended the bloody second Congo War. In July 2003, the transitional government was formed.

But Kivu, Ituri and Katanga conflicts persisted despite the formal end of the Congo War. Alleged role of Ntaganda in Ituri conflict is now before the ICC.

DR Congo, Ntaganda, Kabila and the road ahead (Part 1 of 5)

DRC’s pillage continues unabated. DRC (second largest country of Africa by area and as large as Western Europe) abounds in reserves of diamond, gold, copper, coltan (important ingredient in manufacture of mobile phone), cobalt and other precious minerals. Yet its abject poverty raises arduous questions. Human Development Index Report 2014 ranks DRC 186 out of 187 countries! Its social indicators are appalling. The ICC trial which commenced this month against Congolese warlord Bosco Ntaganda (Terminator), puts back the focus of international community on the perturbing circumstances in DRC and neighbouring Rwanda.

After eluding ICC for nine long years, Ntaganda startlingly surrendered before the US Embassy in Kigali (capital of Rwanda) in 2013 and requested transfer to ICC. This keenly watched trial, having a record number of 2149 participating victims, will be a watershed in International Criminal Law as multiple charges consisting of 13 counts of war crimes including murder and attempted murder, rape, sexual slavery of civilians, pillaging, enlistment and conscription of child soldiers under the age of fifteen years and 5 counts of crimes against humanity: murder and attempted murder, rape, sexual slavery, persecution, forcible transfer of population allegedly committed in 2002-2003 in the Ituri Province have been framed.

Ntaganda’s case reminds us of the serious issues concerning not only DRC but the whole of central Africa. Bitter conflict between Hutus and Tutsis have further aggravated the dispute. It brings back the whole dark history of DRC (and Rwanda) back to limelight. The fleecing by the Portugese and the later colossal misrule of Belgium  (DRC began its life not as a colony but only as a personal property of Spanish Monarch Leopold II who named it the ‘Congo Free State’!). Congo’s ‘Rubber Terror’ led to the Belgian Government’s control over the state but the plight of the Congolese remained unchanged. Post WW II, with rise of nationalist sentiments, dynamic leader Lumumba came to power in the first democratic elections in 1960. Congo’s independence in 1960, escalating violence, murder of Lumumba, coup by Mobutu and his subsequent dictatorship lead his country to wretched poverty. By institutionalizing corruption, Mobutu amassed humungous wealth. But the acrid differences between Hutus and Tutsis, particularly in Rwanda leading to the despicable Rwandan genocide in 1994, and Mobutu’s subsequent complicity with siding anti Tutsi militia led to his overthrow. President Joseph Kabila’s desperate attempts to cling to power even after the constitutional mandate of maximum two terms threatens Congo’s political future.

Ntaganda (Rwandan born Tutsi who fled Rwanda to neighbouring Uganda to escape from the Hutu militia) fought with the Rwandan Patriotic Army and participated in the overthrow of the Hutu-led Rwandan government which was responsible for the Rwandan genocide. Though the change of regime led to immediate discontinuance of the pogrom, future machinations led to the Congolese Wars (deadliest war in modern African history, also known as African World War). Peace agreement in 2002 (Sun City Agreement) reduced the hostilities.

But in the volatile Eastern Congo region of Ituri, bloodshed between Hema and Lendu communities continued. Ntaganda served as the Deputy Chief of Staff of the Patriotic Forces for the Liberation of Congo (Forces Patriotiques pour la libération du Congo, FPLC), the armed wing of the Union of Congolese Patriots (Union des Patriotes Congolais, UPC) headed by Thomas Lubanga Dyilo. UPC with active assistance from the Ugandan army, launched an attack against the Lendu community in Ituri province whereas  Nationalist and Integrationist Front (Front des Nationalistes et Intégrationnistes, FNI) fought on behalf of Lendu and against Hema community. EU’s ‘Operation Artemis’ (UN sanctioned) finally subdued the violence. Lubanga has already been found guilty in 2012 of the war crimes of enlisting and conscripting of children under the age of 15 years and using them to participate actively in hostilities. He has been sentenced to a total of 14 years of imprisonment and his appeal has been dismissed in 2014(first person transferred to the International Criminal Court, also the first war criminal to serve a final sentence given by the ICC). Presently ICC is deliberating on his application for early release.

Now it is Ntaganda’s rendezvous with the ICC!