Le Bureau du Procureur

The Office of the Prosecutor

OTP Weekly Briefing

Issue #122 17 May 25 May 2012
ICC Prosecutor reports on the situation in Libya to the UN Security Council

NEWS
ICC Prosecutor reports on the situation in Libya to the UN Security Council

16 May Prosecutor Moreno Ocampo presented his report to the Council on the situation in Libya. The Prosecutor Deputy Prosecutor emphasized the positive impact Bensouda addresses of the unanimous UNSC referral key civil society gathering in Cape over receiving cooperation from Town States. Regarding the Libyan admissibility challenge, the Prosecutor stated: The Rome Statute is based on the primacy of national proceedings. As mentioned on numerous occasions in relation to Darfur and other situations, the Office will not evaluate the Libyan judicial system as a whole The Office will check the factual situation in accordance with the Statutes requirements that include the intervention of an independent and impartial judiciary. The Security Council may decide to present observations, but this is a judicial issue that will be decided by the Judges of the Pre Trial Chamber. The Prosecutor also stated that the OTP is collecting evidence in relation to a second case in Libya on gender crimes committed against both men and women: The UN Commission of Inquirys findings confirmed the commission of these crimes. My Office is mindful of the sensitivity surrounding rape in Libya, and has adopted a strategy to limit exposure of victims by focusing on obtaining evidence from doctors and soldiers. The investigation is progressing. About the civilian casualties due to NATO bombings the Prosecutor added: The OTP takes due note of the UN Commission of Inquiry findings. The Office has no jurisdiction to evaluate the proper scope of the NATO mandate in relation with UN Security Council Resolution 1973, but the Office is requesting further information about these five incidents identified by the Commission of Inquiry. The Prosecutor further stressed: While the Government faces challenges on many fronts, this comprehensive strategy must remain a priority if the Government is to show that impunity will no longer be tolerated. This strategy must address as a priority the transfer to the central authorities and the screening of thousands of detainees, the investigation of allegations of crimes by these detainees where warranted, to ensure justice for the victims, and the release of those against whom there is no basis for investigation. [] The Government of Libya expressed its commitment to conduct targeted investigations and prosecutions to address the most serious crimes committed by all sides. The Government of Libya has adopted a Transitional Justice Law that created a Fact Finding and a Reconciliation Commission that could contribute to strengthening the rule of law in the country.

Deputy Prosecutor Bensouda addresses key civil society gathering in Cape Town
23 May Deputy Prosecutor and Prosecutor elect Fatou Bensouda delivered a keynote speech at the OpenForum conference in Cape Town, bringing together more than 600 participants. Speaking on Power Day, the Deputy Prosecutor stated: With due respect, what offends me most when I hear criticisms about the so called African bias is how quick we are to focus on the words and propaganda of a few powerful, influential individuals and to forget about the millions of anonymous people that suffer from these crimes Indeed, the greatest affront to victims of these brutal, unimaginable crimes women and young girls raped, families brutalized, robbed of everything, entire communities terrorized and shattered is to see those powerful individuals responsible for their sufferings trying to portray themselves as the victims of a pro Western, anti African, Court. Justice, real justice is not a pick and choose system. To be effective, to be just and to have a lasting impact, justice has to be guided solely by the law and the evidence The Office of the Prosecutor will go where the victims need us. Mrs. Bensouda concluded her speech by underlining the importance of the Courts independence and integrity by stating We are a new tool, a judicial tool, not a tool in the hands of politicians who think they can decide when to plug or unplug us.

OTP Activities
OVERVIEW
7 situations under investigation 15 cases in relation to 24 persons 11 outstanding arrest warrants 7 preliminary examinations in 4 different continents Phases 2 cases before Pre Trial Chambers 6 cases before Trial Chambers 1 verdict

I. Preliminary Examinations
Preliminary examinations refer to the analytical process by which the OTP assesses whether there is a reasonable basis to proceed with an investigation in a given situation. In accordance with Article 15 of the Statute, the OTP proactively gathers and evaluates information from multiple sources, including communications from individuals and parties concerned (phase 1 initial review). Following a sequential process, and irrespective of the mechanism by which the jurisdiction of the Court is triggered, the Office then applies the same legal criteria laid out in Article 53 of the Statute, namely temporal/territorial/personal jurisdiction (phase 2a), subject matter jurisdiction (phase 2b), admissibility, including complementarity and gravity (phase 3) and the interests of justice (phase 4). Currently, the OTP is conducting preliminary examinations into seven Afghanistan, Honduras, Korea and Nigeria (phase 2b), Colombia, Georgia and Guinea (Phase 3).

II. Investigations and Prosecutions

1. Situation in the Democratic Republic of the Congo (DRC) Referred: April 2004 Investigation Opened: June 2004
Trials The Prosecutor v Thomas Lubanga Dyilo charged with war crimes of conscripting, enlisting and using children to actively participate in hostilities committed in the Ituri region 2002 2003 Status: Judgment delivered on 14 March 2012; hearing for submissions of sentencing set for 13 June 2012 The Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui charged with war crimes and crimes against humanity committed during the attack of the village of Bogoro in the Ituri region on 24 February 2003

Status: Defence case presentation concluded, closing oral statements set from 15 to 23 May 2012 Confirmation of Charges Hearing The Prosecutor v Callixte Mbarushimana charged with war crimes and crimes against humanity, including massive sexual violence, committed in the North and South Kivus 2009 2010 Status: Pre Trial Chamber I declines to confirm the charges (16 December 2011); Prosecution appealed to Appeals Chamber on 12 March 2012 Warrant Pending The Prosecutor v Bosco Ntaganda charged with war crimes of conscripting, enlisting and using children to actively participate in hostilities committed in the Ituri region 2002 2003 Issued: 22 August 2006

7 May Trial Chamber II rejected the Ngudjolo Defences request that it suspend the hearing for closing statements scheduled to start on 15 May 2012 if it decides to apply regulation 55 of the Regulations of the Court to re characterise the armed conflict in Ituri from international to non international. It noted, inter alia, that: the Defence failed to request an extension of time before the deadline; and the issue of the characterisation of the armed conflict has already been extensively discussed by the Defence in its final brief. It recalled that it will take into account in its final judgment the totality of arguments presented in the final briefs, the Defence responses and relevant discussions during the closing statements. It also invited the Defence to present during their closing statements any additional arguments related to the consistency of re characterisation of the armed conflict with the right to a fair trial. 7 May The Prosecution opposed the Katanga Defence application for leave to appeal Trial Chamber IIs decision rejecting its application to either admit, as evidence, portions of the judgment from the Lubanga case which address the two intermediaries 143 and 316, or have regard to those findings as the findings of another Chamber on a question of fact relevant to this case. It submitted that the Defence failed to identify any appealable issue that satisfies the requirements of article 82(1)(d) and that the Defence has not demonstrated that the two issues presented meet the criteria for leave to appeal. 10 May The Womens Initiatives for Gender Justice submitted its amicus curiae observations on reparations related to Lubanga case. It argued, inter alia, that: the Court should order both collective and individual reparations, with an emphasis on collective reparations; the modalities of collective reparations should have individualised components and allow for the taking into account of individual considerations; TCI should undertake further consultations with victims/survivors and experts, incorporating a gender perspective, to determine to whom and how reparations should be directed; and the Trust Fund for Victims is an appropriate body to implement reparations in this instance as it has taken a specific focus on gender based crimes in implementing its general assistance mandate in the DRC, Uganda, and the CAR. 10 May Justice plus, Terre des Enfants, Centre Pelican, Fdration des Jeunes pour la Paix Mondiale and Avocats Sans Frontires filed their amicus curiae observations on the reparation regime related to Lubanga case. They recommended TCI to explore the possibility of extending reparation to those victims who have not participated in the proceedings and noted that consultation of community leaders has revealed strong tendency in favour of collective reparation due to its inclusive character and long term impact. They also advocated for symbolic forms of reparation, for example, the construction of commemorative monuments. 10 May UNICEF submitted its observations on reparations related to Lubanga case. It argued that the following principles should be applied: (a) reparations should be designed with the best interests of the victims as a primary consideration; (b) the eligibility for reparations in this case should be assessed as broadly as possible; (c) reparations should be applied in a non discriminatory manner; (d) the views of victims, their families and communities should be a major consideration in formulating reparations; and (e) reparations should be crafted to promote non repetition of the crimes. It further submitted that the Court should grant both individual reparations that help address individual specific needs and collective reparations that take account of the damage caused to communities and address their needs, including the need to support the rehabilitation and on going protection of victims. 2. Situation in Uganda Referred: January 2004 Investigation opened: July 2004
Warrants Pending The Prosecutor v Joseph Kony et al. charged with war crimes and crimes against humanity committed during LRAs insurgency activities in Northern Uganda 2002 2004

Issued: 8 July 2005. On 11 July 2007, Pre Trial Chamber I ordered to terminate the proceedings against Raska Lukwiya. On 8 November 2007, the OTP submitted information to the PTC on the reported death of Vincent Otti.

3. Situation in Darfur, the Sudan Referred: March 2005 Investigation opened: June 2005
Trial The Prosecutor v Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus charged with war crimes committed during an attack against the Haskanita AU peacekeeping base in North Darfur on 29 September 2007 Status: Charges confirmed, trial date to be set Prosecution to present additional evidence The Prosecutor v Bahar Idriss Abu Garda charged with war crimes committed during an attack against the Haskanita AU peacekeeping base in North Darfur on 29 September 2007 Warrants Pending The Prosecutor v Omar Al Bashir charged with war crimes, crimes against humanity and genocide committed as part of the counter insurgency campaign in Darfur 2003 2008 (at least) Issued: 4 March 2009 & 12 July 2010 The Prosecutor v Ali Kushayb and Ahmad Harun charged with war crimes and crimes against humanity committed during the attacks against the civilian population in Darfur August 2003 March 2004 Issued: 27 February 2007 The Prosecutor v Abdel Raheem Muhammad Hussein charged with war crimes and crimes against humanity committed during attacks against the civilian population in Darfur August 2003 March 2004 Issued: 1 March 2012

4. Situation in the Central African Republic (CAR) Referred: January 2005 Investigation opened: May 2007
Trial The Prosecutor v Jean Pierre Bemba Gombo charged with war crimes and crimes against humanity, including a massive rape campaign, committed in CAR between 26 October 2002 15 March 2003 Status: Prosecution has completed the presentation of its case on 21 March 2012.

5. Situation in Kenya OTP request to start investigation: November 2009 Investigation opened: March 2010
Trials The Prosecutor v William Samoei Ruto and Joshua Arap Sang charged with crimes against humanity committed during the post electoral violence in Kenya on or about 30 December 2007 end January 2008 Status: Case sent to trial on 23 January 2012, date of trial to be set (charges were not confirmed against Henri Kosgey, but the OTP will present additional evidence) The Prosecutor v Francis Kirimi Muthaura and Uhuru Muigai Kenyatta charged with crimes against humanity committed during the post electoral violence in Kenya 24 28 January 2008

Status:

Case sent to trial on 23 January 2012, date of trial to be set (charges were not confirmed against Mohammed Ali, but the OTP will present additional evidence)

14 May Trial Chamber V issued orders convening the OTP, the Defence, Legal Representatives of the Victims, and the Registry to a Status Conference on 11th and 12th June 2012, at 1:00 pm. The Chamber requested specific parties to make submissions, by 28 May on issues that include the languages to be used in the proceedings, disclosure, witness protection and the conduct of the proceedings. 16 May The OTP submitted its response to a Defence Request to postpone setting a trial date until the ICC Appeals Chamber has issued its ruling on the Defences jurisdictional appeal. The OTP recognized that there are those who have publicly called for the trials to commence as soon as possible, so the Court can render a final decision on the guilt or innocence of the accused before Kenyas next general elections. The OTPs filing noted, however, that even if the trial were to commence today, it would not be concluded before March 2013. The filing stressed that the Courts processes must not be influenced by Kenyas domestic politics, which are the exclusive domain of the Kenyan people. The OTP noted that it is not the role of the ICC to define the outcome of Kenyas electoral process nor to intervene in the political process. Rather, the Prosecution indicated that it is up to Kenyans to determine who will be candidates for election and who will be elected. The Prosecution stated that it will continue its work in accordance with the judicial rules.

24 May The Appeals Chamber decided unanimously to reject the appeals regarding the challenges to the ICCs jurisdiction, raised by the Defence teams in the two Kenyan cases: The Prosecutor v. William Samoei Ruto and Joshua Arap Sang and The Prosecutor v. Francis Kirimi Muthaura and Uhuru Muigai Kenyatta. The Defence teams of the accused had challenged the Courts jurisdiction before the Pre Trial Chamber, submitting that the Court should decline to exercise jurisdiction over their cases and contesting the interpretation of the term organizational policy as a component of crimes against humanity under article 7 (2) (a) of the Rome Statute, which the Pre Trial Chamber had adopted, by majority, in its decision authorising the opening of an investigation into the situation in Kenya, dated 31 March 2010. In its decision the Appeals Chamber indicated that the interpretation and existence of an organizational policy relate to the substantive merits of this case as opposed to the issue of whether the Court has subject matter jurisdiction to consider such questions. These issues relate to whether the Pre Trial Chamber erred when it confirmed the charges in respect of the accused. As the Prosecutor has expressly alleged crimes against humanity, including the existence of an organizational policy, the Appeals Chamber found that the ICC has subject matter jurisdiction over the alleged crimes. 6. Situation in Libya Referred: February 2011 Investigation opened: March 2011
Warrants Pending The Prosecutor v Saif Al Islam Gaddafi and Abdullah Al Senussi charged with crimes against humanity committed during attacks on the civilian population by the Libyan Security Forces 15 February at least 28 February 2011 Issued: 27 June 2011; the Government of Libya submitted an application pursuant to Article 19 challenging the admissibility before the ICC of the case concerning Saif Al Islam Gaddafi and Abdullah Al Senussi on 1 May

7. Situation in Cte dIvoire OTP request to start investigation: June 2011

Investigation opened: October 2011

Warrant executed The Prosecutor v Laurent Gbagbo charged with war crimes and crimes against humanity committed after the November 2010 Ivorian elections. Issued: 23 November 2011 (under seal) Status: initial appearance on 5 December 2011; confirmation of charges hearing set for 18 June 2012

III. Arrests Cooperation

10 PERSONS SOUGHT BY THE COURT

The Prosecutor v Bosco Ntaganda (more information here) Current location: DRC, in and around Goma

The Prosecutor v Joseph Kony et al (more information here) Current location: variously, at different times, in the border area between DRC, CAR and South Sudan The Prosecutor v Ahmed Harun and Ali Kushayb (more information here) Current location: South Kordofan, Sudan (A. Harun) Sudan (A. Kushayb) The Prosecutor v Omar Hassan Ahmad Al Bashir (more information here) Current location: Khartoum, Sudan The Prosecutor v Abdel Raheem Muhammad Hussein (more information here) Current location: Khartoum, Sudan

IV. Other Co operation

17 May A congressional committee in the United States House of Representatives voted to cut off aid to any state that hosts Sudanese President Omar Al Bashir. The amendment to the fiscal year 2013 State and Foreign Operations Appropriations bill was pushed for by Congressman Frank Wolf. During the deliberations he stated, surely we can all agree that bringing a war criminal to justice is in our national interest. Leveraging our foreign assistance in this way sends a powerful message. 23 May Ian Khama, the President of Botswana, advised Malawian leader Joyce Banda not to invite Omar Al Bashir to the AU summit which will take place at Malawi in July. President Khama indicated [Bashirs] failed leadership is like a cancer in his country. It is for this reason I have requested the President of Malawi to deny him entry to her country when Malawi hosts the next AU summit in July. 24 May Lord Arton of Liverpool has submitted an oral question in the House of Lords about the individuals that are sought by the ICC. Lord Arton said: to ask Her Majestys Government what progress has been made in securing the arrest of Joseph Kony, Omar al Bashir and others indicted by the ICC for crimes against humanity. He further asked: does not a failure to bring those indicted to account risk compromising the ICC and bringing it into disrepute? What resources are we committing to the work of the ICC? When a head of state is indicted by it, how is that reflected in the conduct of our economic and diplomatic policies?. Lord Howell of Guildford answered these questions with following remarks: the indictments are out there but there are real problems in pinning these people down Mr Joseph Kony is highly elusive and can slip across borders As for the leader of Sudan, we know exactly what the position is. We and our EU colleagues seek to keep contact with Khartoum because all the parties South Sudan, Sudan itself, the opposition parties and, indeed, the Opposition as well believe that we should do so. However, the problem of fulfilling an ICC charge against Mr Omar al Bashir is obviously a practical, physical one in that he is not in reach unless he were to leave the country. Lord Altons article about the issue can be found here. 14 March UN Human Rights chief Navi Pillay hailed the verdict in the case of Thomas Lubanga, saying it is a real step forward for international justice and a major milestone in the fight against impunity. For many years, and on a daily basis, we have been documenting gross violations of human rights of the sort perpetrated by Lubanga against the people of the Democratic Republic of the Congo []. The Lubanga verdict sends a strong signal against impunity for such grave breaches of international law that will reverberate well beyond the DRC. [] Two decades ago, international justice was an empty threat. Since then a great deal has been achieved, and the coming of age of the ICC is of immense importance in the struggle to bring justice and deter further crimes.

V. Upcoming Events May

28 29 Prosecutor and Deputy Prosecutor participate in OTP NGO roundtable 30 Prosecutor and Deputy Prosecutor participate in OTP NGO roundtable 31

June
1 4 Deputy Prosecutor gives keynote address at conference on The Incidence of the Female Child and the ICC organized by ASIL and Eng Aja Eze Foundation, New York 5 Prosecutor and Deputy Prosecutor present briefing on the situation in Darfur to the UNSC, New York 6 7 Deputy Prosecutor gives keynote address at a seminar entitled Societal Reintegration of Victims of Core International Crimes, organised by the Forum for International Criminal and Humanitarian Law, held on the occasion of the 10th anniversary of the entry into forces of the Rome Statute, Oslo 14 8 2 9 3 10

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13 Prosecutor attends the public hearing on sentencing in the Thomas Lubanga case 20

15 Swearing in ceremony for the new ICC Prosecutor

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18 Start of the confirmation of charges hearing in the Laurent Gbagbo case 25

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27 Prosecutor Fatou Bensouda gives a speech at the Helen Stacy s Program on Human Rights, Stanford

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VI. Other Information

* This document reflects the views of the Office of the Prosecutor of the ICC. For more information, contact Mrs. Olivia Swaak Goldman, International Cooperation Adviser in the Office of the Prosecutor, at Olivia.Swaak Goldman@icc cpi.int