OTP Briefing

Issue #138 12 – 31 March 2013

NEWS
Bosco Ntaganda in the custody of the ICC
22 March – Bosco Ntaganda surrendered himself voluntarily at the US Embassy in Kigali, and is now in the ICC’s custody. Upon arrival, Mr Ntaganda received a medical visit and appeared on 26 March before the Judges in the presence of a Defence Lawyer. During this hearing, the Judges of Pre-Trial Chamber II verified the identity of the suspect and the language in which he is able to follow the proceedings. Mr. Ntaganda was informed of the charges against him and the Pre-Trial Chamber II set the date of the beginning of the confirmation of charges hearing for 23 September 2013. This is the first time that a suspect has surrendered himself voluntarily to be in the ICC’s custody. ICC Prosecutor Fatou Bensouda welcomed news of the transfer of Bosco Ntaganda to the ICC. "This is a good day for victims in the DRC and for international justice. Today those who are alleged to have long suffered at the hands of Bosco Ntaganda can look forward to the future and the prospect of justice taking its course", the Prosecutor said. The Prosecutor thanked all States, international and other regional actors who have been working for so long to make this day possible and particularly acknowledged the support of the authorities of the United States of America, Rwanda and the Netherlands in facilitating today’s transfer and the continued cooperation of the DRC. However, she stresses that "As we welcome progress in one case, others also subject to ICC warrants in the region remain at large", and urges all States now to renew and refocus their efforts to secure the arrests of FDLR commander Sylvestre Mudacumura, the top commanders of the Lord's Resistance Army who reportedly continue to commit grave crimes in the DRC and beyond, and all others subject to ICC warrants who are still at large. Also UN Secretary-General Ban Ki-moon made a statement welcoming this development. “The International Criminal Court has today confirmed the transfer to its custody of Bosco Ntaganda who is expected to face charges of war crimes and crimes against humanity for atrocities committed in the Ituri region.” He affirms that, “in accordance with the Relationship Agreement between the two institutions, the United Nations will cooperate with the International Criminal Court with a view to ensuring that Mr. Ntganda receives a fair and expeditious trial.” Additionally, the members of the Security Council welcomed the surrender of Bosco Ntaganda to the ICC, and paid tribute to all victims of serious crimes of international concern in the Democratic Republic of the Congo (DRC). They expressed their appreciation to the governments of Rwanda, the Netherlands, the United Kingdom, and the United States of America, as well as to the ICC, for facilitating the surrender of Mr. Ntaganda to the ICC, and emphasized that their cooperation was essential in order to bring Mr. Ntaganda to justice. The members of the Security Council view Mr. Ntaganda's surrender to the ICC as a

positive step for international criminal justice as well as toward the restoration of peace and security in eastern DRC., however, they remain deeply concerned about abuses and violations of human rights and violations of international humanitarian law in the DRC, and recall that those responsible for war crimes, crimes against humanity and genocide, as well as for violence against children and acts of sexual and gender-based violence, must be held accountable. Moreover, the members remain deeply disturbed by the worsening security and humanitarian situation in eastern DRC and reiterate their demand that the Mouvement du 23 mars (M23), the FDLR, and all other armed groups cease immediately all forms of violence and destabilizing activities, permanently disband, and lay down their arms. EU High Representative Catherine Ashton also welcomed the transfer of Mr Bosco Ntaganda, and thanked all those who made this possible. According to Lady Ashton, this transfer is consistent with the commitments taken in the peace, security and development framework for the DRC and the region, which the EU supports. Mr Ntaganda’s transfer to the ICC in preparation for a fair and credible trial at the Court sends a strong message to others accused of atrocities that they too will face justice one day.

Judges issue a decision on the non-compliance of Chad regarding the arrest of President Omar Al-Bashir
26 March – Pre-Trial Chamber II rendered a decision on the non-compliance of Chad with the Court’s cooperation requests. The Chamber noted that Chad, as a State Party, is under the obligation, in accordance with articles 86 and 89 of the Statute, to execute the pending decisions and orders of the Court concerning the arrest and surrender of Omar Al-Bashir. However, according to the Registry’s and the Prosecutor’s reports the Government of Chad continues to welcome the visits of Omar AlBashir on its territory without any attempt to arrest him, despite several warnings on the part of the Court. The Government of Chad has also, contrary to article 97 of the Statute, avoided consultations with the Court prior to said visits in order to resolve any problems concerning the execution of the pending cooperation requests. The Chamber thus found that Chad: (a) has failed to comply with its obligations to consult with the Chamber on the problem(s) which have impeded the execution of the requests for arrest and surrender of Omar Al-Bashir during his visit; and (b) has failed to cooperate with the Court by deliberately refusing to arrest and surrender Omar Al-Bashir, thus preventing the Court from exercising its functions and powers under the Statute; (c) the Chamber thus referred its decision to the President of the Court for transmission to the Security Council, through the UN Secretary General, and to the ASP.

OTP Activities
OVERVIEW
8 situations under investigation 18 cases in relation to 25 persons Arrest warrants outstanding against 12 individuals 7 preliminary examinations in 4 different continents Phases 6 cases at Pre-Trial Stage 5 cases before Trial Chambers 2 cases before Appeals Chamber 2 verdicts

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 INCLUDED IN THE 14 CASES?4 cases before Trial Chambers 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 jurisdiction, including temporal/territorial/personal and subject-matter jurisdiction (phase 2), admissibility, including complementarity and gravity (phase 3) and the interests of justice (phase 4).
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Currently, the OTP is conducting preliminary examinations into seven situations: Afghanistan, Honduras and Korea (phase 2), Colombia, Georgia, Guinea, and Nigeria (phase 3).

25-28 March – As part of the preliminary examination of the situation in Georgia, the Office sent a mission to Tbilisi. Following the mission, Georgia’s new Minister of Justice and the Chief Prosecutor have publically reiterated Georgia’s readiness to investigate crimes committed in relation to the 2008 conflict impartially, stressing their obligation under the Rome Statute to investigate and prosecute all crimes falling under the jurisdiction of the ICC. Information collected during the mission will inform the Office’s ongoing admissibility assessment.

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; Mr. Lubanga was sentenced on 10 July to a total of 14 years of imprisonment; principles and procedures to be applied to reparations established on 7 August. This decision is subject to appeal. The Prosecutor v Germain Katanga and The Prosecutor v 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: Closing oral statements took place from 15 to 23 May 2012; charges severed by Judges on 21 November; on 18 December, Ngudjolo Chui acquitted of all charges; on 21 December, Ngudjolo Chui was released from custody. The Prosecution has appealed the decision. Pre-Trial 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; a second warrant was issued to include war crimes of murder, attacks against the civilian population, rape and sexual slavery, and pillaging, as well as crimes against humanity of murder, rape and sexual slavery, and persecution Status: Initial appearance on 26 March 2013; confirmation of charges hearing scheduled for 23 September 2013 Warrant Pending The Prosecutor v Sylvestre Mudacumura – charged with war crimes of attacking civilians, murder, mutilation, cruel treatment, rape, torture, destruction of property, pillaging and outrages against personal dignity committed in North and South Kivu Provinces of the DRC between 20 January 2009 and end of September 2010 Issued: 13 July 2012

28 March – The UN Security Council adopted resolution 2098 (2013) extending the Mandate of MONUSCO in DRC until 31 March 2014. This resolution also contains important ICC references: paragraph 20 welcomes “the commitment made by the Government of the DRC to hold accountable those responsible for atrocities in the country, noting the cooperation of the Government of the DRC with the International Criminal Court (ICC)”, and stresses “the importance of actively seeking to hold accountable those responsible for war crimes and crimes against humanity in the country and of regional and international cooperation to this end.” Paragraph 21 welcomes “the surrender of Bosco Ntaganda to the ICC on 22 March 2013 as a positive step for international criminal justice as well as towards the restoration of peace and security in eastern DRC and expressing its appreciation to all Governments concerned as well as to the ICC for their cooperation, which was essential to bring Bosco Ntaganda to justice.” Finally, paragraph 12(d) demands “support and work with the Government of the DRC to arrest and bring to justice those responsible for war crimes and crimes against humanity in the country, including through cooperation with States of the region and the ICC.” 27 March - The Appeals Chamber dismissed by majority the appeal raised by the Defence of Germain Katanga against the decision of Trial Chamber II giving notice of a possible change in the legal characterization of the form of responsibility with which Mr. Katanga is charged. The Appeals Chamber considers that the timing and the scope of the Trial Chamber II decision are in conformity with regulation 55 (2) of the Regulations of the Court. The Appeals Chamber also finds that the Trial Chamber’s decision does not violate Mr. Katanga’s right to a fair trial. The Appeals Chamber also emphasises that, considering the advanced stage of the proceedings, the Trial Chamber will need to be particularly vigilant in ensuring Mr. Katanga’s right to be tried without undue delay. The proceedings before Trial Chamber II will continue in the way indicated by Trial Chamber II in its notice of the potential change in the legal characterisation of the facts.

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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 LRA’s 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 set for 5 May 2014 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 counterinsurgency 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 completed the presentation of its case on 21 March 2012; Defense started its presentation on 14 August 2012; the trial resumed on 4 March 2013 following a temporary suspension.

15 March – Prosecutor Bensouda made a statement on the events in CAR, expressing deep concern about reports of the worsening situation in the Central African Republic and allegations of the commission of serious crimes in the context of the on-going conflict. Furthermore, she reminded all parties to the conflict in CAR that ICC has jurisdiction in CAR and that OTP will not hesitate to investigate and prosecute all those alleged to be committing these crimes. “Those who seek to attain or retain political power by targeting civilians will be held accountable.” On 20 March, the UN Security Council also voiced strong concern over the deterioration of the security situation in the CAR. Council members condemned the attacks conducted recently by rebels, and the threats by militias and related movements against civilians and called upon all actors, including the media, to refrain from inciting violence. “Of vital importance is the impact of all of these developments on the people, adding that there are a lot of human rights violations, assaults on the population, looting, sexual exploitation, and recruitment of children. “At the best of times, the record in the CAR was not good but it is exponentially worse," stated Margaret Vogt, Special Representative of the SecretaryGeneral for CAR. “What makes the situation even more complex, she added, is that Séléka has now moved to the south-west of the country, where the Ugandan rebel group known as the Lord's Resistance Army is operating.” 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, trial date set for 28 May 2013 The Prosecutor v 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, trial date set for 9 July 2013 (charges withdrawn against Francis Kirimi Muthaura)

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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 Chamber decided that Libya could postpone the execution of the request to surrender Saif Al-Islam Gaddafi on 1 June 2012, pending a final determination on the admissibility challenge. Regarding Abdullah Al Senussi, the Chamber rejected Libya’s request to postpone the execution of the arrest warrant on 6 February 2013, and ordered immediate surrender

14 March – At its 6934th meeting, the UN Security Council adopted Resolution 2095 (2013) calling upon the Libyan government to continue to cooperate fully with and provide any necessary assistance to the International Criminal Court and the Prosecutor as required by resolution 1970 (2011). 7. Situation in Côte d’Ivoire – 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 took place from 19 to 28 February 2013. Warrant pending The Prosecutor v Simone Gbagbo – charged with war crimes and crimes against humanity committed after the November 2010 Ivorian elections. Issued: 29 February 2012 (under seal)

8. Situation in Mali – Referred: July 2012 Investigation opened: January 2013

III. Arrests - Cooperation
12 PERSONS SOUGHT BY THE COURT

The Prosecutor v Simone Gbagbo (more information here) Current location: Côte d’Ivoire

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The Prosecutor v Sylvestre Mudacumura (more information here) Current location: Eastern DRC 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 The Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi (more information here) Current location: Libya

IV. Other Co-operation
20-21 March – Prosecutor Bensouda traveled to Paris, France. During her visit she delivered a lecture at the Forum for New Diplomacy in Paris, hosted by the International Herald Tribune and the Académie Diplomatique Internationale, on “International justice and diplomacy: partnering for peace and international security”. To complement this speech, the Prosecutor published an op-ed in the New York Times, referring to the parallels between justice and peace. Here, Prosecutor Bensouda argues that the debate about peace versus justice or peace over justice is a patently false choice: “Peace and justice are two sides of the same coin. The road to peace should be seen as running via justice, and thus peace and justice can be pursued simultaneously. The next day she gave a keynote address at a conference on "Business, Armed Conflict and International Criminal Law", organized by the ABA and the Conseil National des Barreaux. 18 March – The ICC held a ceremony to welcome Côte d’Ivoire as the 122 nd State Party to the Rome Statute. The Statute will enter into force for Côte d’Ivoire on 1 May 2013. The Ambassador of Côte d’Ivoire, H.E. Mr Sallah Ben Abdelkader Hamza said that, “Côte d´Ivoire is expecting an opened and fruitful dialogue with the International Criminal Court. In this regard, we will not hesitate to revert to the Court for advice and support, particularly for the implementation of the Rome Statute in our judicial system”. 15 March – The 57th session of the Commission on the Status of Women in New York, in which Prosecutor Bensouda participated, led to the adoption of a set of Agreed Conclusions, including: “the Commission recalls the inclusion of gender-related crimes and crimes of sexual violence in the Rome Statute of the International Criminal Court, as well as the recognition by the ad hoc international criminal tribunals that rape and other forms of sexual violence can constitute a war crime, a crime against humanity or a constitutive act with respect to genocide or torture.” The Commission also called to “end impunity by ensuring accountability and punishing perpetrators of the most serious crimes against women and girls under national and international law, and stressing the need for the alleged perpetrators of those crimes to be held accountable under national justice or, where applicable, international justice.”

V. Upcoming Events April
1 2 Prosecutor Bensouda participates in a series of meetings and events organized by the Dutch embassy in Washington and The Hague Municipality as part of The Hague - International City of Peace & Justice delegation, Washington DC 3-6 7

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16 Prosecutor Bensouda participates in an event organized by the Norwegian Ministry of Foreign Affairs and IPI for the re-opening of the UN Security Council Chamber, NY

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23 Prosecutor Bensouda participates in the twentieth session of the CBF, The Hague

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May
1 Prosecutor Besouda participates in an event on “International law, whose law?” at Theater Frascati, Amsterdam 2 6-9 Prosecutor Besouda reports to the UN Security Council on the situation in Libya, NY 10 11 Prosecutor Besouda participates in the Annual Graduation Ceremony of Webster University, Leiden 18 12 2 3 4 5

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15-16 Prosecutor Besouda participates in meetings and events, Geneva

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23-24 Prosecutor Besouda participates in the 38th Congress of the FIDH, Istanbul

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28 Start of the Kenya 1 trial

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VI. Other Information
15 March - Prosecutor Bensouda announces the appointment of Mohammed Ayat as Special Adviser on regional cooperation with MENA by stating: “Mr. Ayat is a renowned expert in his field who will greatly contribute to the work of the Office of the Prosecutor by enhancing and strengthening cooperation with MENA”, stated the Prosecutor. Mr. Ayat is currently a professor of law at Mohammed V University and Member of the Moroccan National Council on Human Rights. He previously served as Senior Legal Advisor to the Prosecutor of the International Criminal Tribunal for Rwanda, and was also his personal Representative in liaison with the Rwandan Government and Diplomatic Community. Mr. Ayat was elected member of the United Nations Human Rights’ Committee in 2008 and has contributed to a World Study on Conflicts, Victimization and Post-Conflict Justice as an expert for the Arab and Islamic world. Furthermore, he has published books and articles on Criminal Law, Criminal Procedure and Criminology, and periodically trains lawyers in the MENA region on International Criminal Justice and Human Rights.
* 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

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