Content Writing Team Content Writer

Prof. Rashmi Raman (Assistant Professor

& Assistant Director, Centre for
International Legal Studies, Jindal Global
Law School)

Content Reviewer Dr. U.C. Jha

Paper Co-ordinator Rashmi Raman (Assistant Professor &
Assistant Director, Centre for
International Legal Studies, Jindal Global
Law School)

Landmark Decisions of the International Criminal Court

LEARNING OUTCOMES:

I. In this module you will study about the 22 cases in 9 situations, which have been
brought before the International Criminal Court.

II. You will study the first Judgment of the International Criminal Court.

OUTLINE:

a) Introduction
b) Cases
- PROSECUTOR V. MATHIEU NGUDJOLO CHUI
- PROSECUTOR V. GBAGBO
- PROSECUTOR V. KENYATTA AND PROSECUTOR V. RUTO
- PROSECUTOR V. LUBANGA (APPEALS CHAMBER)
- PROSECUTOR V. LUBANGA (TRIAL CHAMBER)
- PROSECUTOR V. DOMINIC ONGWEN
C) FURTHER READINGS

D) SELF-ASSESSMENT

I. INTRODUCTION:

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The International Criminal Court (ICC), is the premier permanent international
criminal court that was intended to serve the aim of helping end the lack of
punishment for the conspirators and operators of the most heinous crimes that affect
the international community. The International Criminal Court, unlike the common
misconception, is not an organ of the United Nations Organisation but is in fact
situated at The Hague in the Netherlands and derives its funding primarily by the
State Parties, but many a time governments, individuals, corporations and
international organisations contribute on a voluntary basis.

The ICC is governed by the Rome Statute which was adopted by the international
community when 120 countries accepted it (in 1998), providing a legal framework
that allowed for the setting up of the permanent International Criminal Court. The
history of the creation of the International Criminal Court can be traced back to the
Nuremberg and Tokyo trials – “which addressed war crimes against peace, and crimes
against humanity committed during the Second World War”1 – after having come to
an international consensus on the definitions of terms like „genocide‟, „crimes against
humanity‟ and „war crimes‟. After this, post the Cold War period in the 1990s, the
international community witnessed the formation of the International Criminal
Tribunal for the former Yugoslavia and for Rwanda and it was realised that there was
a dire need for a permanent international court that was independent and would deal
with crimes that were not only within a specific time-frame or during a period of
conflict, and this was how the International Criminal Court was established on 17 July
1998.

The system for starting an investigation is such that the Prosecutor can initiate
investigation on the basis of referral from two sources, namely from any State Party
or from the United Nations Security Council. An alternative method of initiating
investigations is if the Prosecutor receives information from sources like individuals
or organisations, as long as they fall within the jurisdiction of the Court. To date, “the
International Criminal Court has had 22 cases in 9 situations brought up before it.
Uganda, the Central African Republic, Mali and the Democratic Republic of Congo
have referred situations that have occurred within the boundaries of their nations and

1
http://goo.gl/BLCY7e {redirects to the official website of the International Criminal Court; last
accessed 1st Sept 2015}

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in addition, the Security Council has referred the situation in Darfur, Sudan, and the
situation in Libya – both non-States Parties.”. On 31 March 2010, Pre-Trial Chamber
II granted the Prosecution authorisation to open an investigation proprio motu in the
situation of Kenya. In addition, on 3 October 2011, Pre-Trial Chamber III granted the
Prosecutor‟s request for authorisation to open investigations proprio motu into the
2
situation in Côte d‟Ivoire.” Having thoroughly analyzed all the sources of
information, investigations have been opened in all of the above-mentioned situations.

Although the International Criminal Court has delivered a limited number of

decisions in years of existence, each of the decisions decide on a significant question
of law. The decisions summarized and discussed below have been carefully selected
to cover a broad range of the limited decisions delivered by the ICC3.

II. THE PROSECUTOR V. MATHIEU NGUDJOLO CHUI

Judgment pursuant to Article 74 of the Statute

Mathieu Ngudjolo Chui, the alleged former leader of the Front des Nationalistes et
Intégrationnistes (FNI), allegedly committed three crimes against humanity and
seven war crimes for which he was acquitted in December 2012 by Trial Chamber II
at the International Criminal Court.

“He allegedly committed, through other persons, within the meaning of article
25(3)(a) of the Rome Statute:

 Three crimes against humanity: Murder under article 7(1)(a) of the Statute;
sexual slavery and rape under article 7(1)(g) of the Statute.
 Seven war crimes: Using children under the age of 15 to take active part in
hostilities under article 8 (2)(b)(xxvi) of the Statute; deliberately directing an
attack on a civilian population as such or against individual civilians or
against individual civilians not taking direct part in hostilities under article
8(2)(b)(i); wilful killing under article 8(2)(a)(i) of the Statute; destruction of

2
http://goo.gl/BLCY7e {redirects to the official website of the International Criminal Court; last
accessed 1st Sept 2015}
3
For the most recent list of cases/situations before the International Criminal Court, see:
http://goo.gl/pzA6Qw {redirects to the official website of the International Criminal Court; last
accessed 1st Sept 2015}

3
 property under article 8(2)(b)(xiii) of the Statute; pillaging under article
8(2)(b)(xvi) of the Statute; sexual slavery and rape under article 8(2)(b)(xxii)
of the Statute.”4

This trial began in November 2009 and went on till 18th December 2012 wherein the
verdict was announced that Ngudjolo Chui would be acquitted due to the Court‟s
decision to convict the accused without proper proof. He was released from custody
on 21st December 2012 and the office of the Prosecutor had appealed the verdict. On
27 February 2015, the Appeals Chamber confirmed the decision of Trial Chamber II
of 18 December 2012 of acquitting Mathieu Ngudjolo Chui of charges of crimes
against humanity.

During the course of this trial, The Chamber criticised the prosecution for the method
of implementation of their investigation and stated that there was a lack of sufficient
evidence to prove the case beyond a reasonable doubt that Ngudjolo was the
commander of a group of Lendu combatants which was an organisation local to the
Ituri region of the Democratic Republic of Congo.

https://commons.wikimedia.org/wiki/File:Epulu_River_Ituri.jpg
(Caption: Ituri region, Democratic Republic of Congo)

The Chamber considered that there was a failure to carry out basic due diligence
despite recognising that collection of evidence in a war torn country is extremely
difficult. Hence, the judges did not make any finding based on the crimes themselves
but instead focussed on the Njudjolo‟s authority over the Front des Nationalistes et
Integrationnistes (FNI). The Chamber emphasised on the need for certain aspects of
evidence that would help them ascertain certain facts to assess the credibility of the
witness, namely consistent and precise testimonies of the Prosecution‟s witnesses,
which they failed to furnish the court with; a more careful analysis of witness
backgrounds; a full picture of the community where the heinous crimes had taken
place; and the role of relationships between family members.

4
http://goo.gl/pzA6Qw {redirects to the official website of the International Criminal Court; last
accessed 1st Sept 2015}

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The clear message that the Chamber spread through the acquittal of Mathieu
Ngudjolo Chui was that the Court would be unwilling to convict the accused if
there is a lack of substantive evidence and meticulous investigations.

III.PROSECUTOR V. GBAGBO
Appeal Judgment on Jurisdiction and Stay of Proceedings
ICC-02/11-01/11-312, 12 December 2012

https://commons.wikimedia.org/wiki/Laurent_Gbagbo#/media/File:IC_Gbagbo_Mott
a_eng_195.jpg

(Caption: Laurent Gbagbo, President of Côte d‟Ivoire in 2007)

Laurent Gbagbo, former President of Côte d‟Ivoire was accused of allegedly

committing four crimes against humanity, in his own individual capacity, with the
assistance of members of his inner circle and other pro-Gbagbo forces under article
24 (3) (a) of the Rome Statute, in the alternative, “for ordering soliciting and inducing
the commission of these crimes (article 25(3)(b) of the Rome Statute) or, in the
alternative, for contributing in any other way to the commission of these crimes
(article 25(3)(d) of the Rome Statute):

 Murder under Article 7(1)(a) of the Statute

 Rape under Article 7(1)(g)
 other inhumane acts or – in the alternative – attempted murder under Article
7(1)(k)
 and persecution under Article 7(1)(h)”5

The context for the crimes allegedly committed by him was that of the post-election
violence between 16 December 2010 and 12 April 2011 during which Cote d‟Ivoire
was not a State Party to the ICC. Gbagbo, on these grounds, that Cote d‟Ivoire had
only signed a declaration in 2003 and hence only had jurisdiction limited to that
period of 2002-2003, claimed that the ICC could not try him due to the issue of

5
http://goo.gl/6koM5e {redirects to the official website of the International Criminal Court; last
accessed 1st Sept 2015}

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jurisdiction during the period of crimes allegedly committed. However, on 15 August
2012, the Pre-Trial Chamber I struck down this argument – that the Court would not
have jurisdiction over the period which the crimes were allegedly committed hence
rendering warrant of arrest and charges against Gbagbo incorrect - and was supported
by the Appeals Chamber when Gbagbo appealed against the PTC‟s decision. The
Appeals Chamber stated that “a declaration accepting the jurisdiction of the Court
under Article 12(3) of the ICC Statute is not limited to specific events or a specific
situation, unless the declaration makes that limitation” 6 It further reasoned that given
the purpose of the Statute to deter future crimes, it could cover crimes committed after
the declaration as a form of extension. It also stated that Cote d‟Ivoire, in its capacity
of a non-State Party, could not exercise an automatic right of challenging the
jurisdiction, before the PTC, as prescribed under Article 19 but however
acknowledged that the Pre-Trial Chamber could take into consideration the views of
the Party with its own discretion under Rule 103.

Owing to the failure to seek leave as prescribed by Article 82(1)(d) of the Statute and
that such decisions, unlike decisions on jurisdiction per se (which under Article
82(1)(a) can be appealed), cannot be appealed as of right; the Appeals Chamber stated
that Laurent Gbagbo could not challenge the denial to grant a stay of proceedings as
part of this appeal.

III. PROSECUTOR V. KENYATTA AND PROSECUTOR V. RUTO

Appeal Judgments on Jurisdiction arising out of Confirmation Decision ICC-01/09-
01/11-414 (Ruto) and ICC-01/09-02/11-425 (Kenyatta), 24 May 2012

“William Samoei Ruto, Deputy President of the Reupblic of Kenya, was accused of
being criminally responsible as an indirect co-perpetrator pursuant to article 25(3)(a)
of the Rome Statute for the crimes against humanity of:

 murder under article 7(l)(a);

 deportation or forcible transfer of population under article 7(l)(d); and

6
http://goo.gl/6koM5e {redirects to the official website of the International Criminal Court; last
accessed 1st Sept 2015}

6
  persecution under article 7(l)(h).”7

“Uhuru Muigai Kenyatta, President of the Republic of Kenya, was accused for the
commission of the three crimes against humanity as prescribed by the Rome Statute:

 murder under article 7(l)(a);

 deportation or forcible transfer under article 7(l)(d);
 rape under article 7(l)(g);
 persecution under articles 7(l)(h); and
 other inhumane acts under article 7(l)(k)”8

The Pre-Trial Chamber, during the course of this case, had by majority adopted the
interpretation of the term „organisational policy‟ as a component under Article 7(2)(a)
of the Rome Statute that deals with crimes against humanity which led to the
authorisation of an investigation into the Kenyan situation on 31 March 2010.
Kenyatta‟s and Ruto‟s defence teams, both contested the Court‟s jurisdiction before
the PTC, stating that Court should not exercise its jurisdiction on their cases. On 23
January 2012, the pre-Trial Chamber stated that the ICC‟s jurisdiction over both the
Ruto and Kenyatta‟s case was confirmed and announced that they will apply their
previous definition of the term „organisation policy‟ to the trials. In response to this,
on 30 January 2012, both Ruto and Kenyatta‟s defence teams appealed against the
PTC‟s decision by stating that no such policy existed in the two cases as well as under
the pretext of legal, factual or procedural errors that were founded on the PTC‟s
interpretation of „organisational policy‟. They wished for the declaration that the
Court did not possess the „subject-matter jurisdiction‟ in their cases and that PTC‟s
confirmation of charges would be reversed by the Appeals Chamber.

The Appeal Chambers, however, denied their appeals with the reasoning that “the
interpretation of „organizational policy‟ and whether the evidence establishes such a

7
http://goo.gl/cOquGf {redirects to the official website of the International Criminal Court; last
accessed 1st Sept 2015}
8
http://goo.gl/xMOyA {redirects to the official website of the International Criminal Court; last
accessed 1st Sept 2015}

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policy is a question pertaining to the merits of the case rather than jurisdiction”9. The
Trial Chamber could have a distinct interpretation of the term or also find that the
existence of such a policy does not exist but still would have jurisdiction over the
crimes, the only differing stance would be that they would have to conclude that said
crimes were not proven. They backed their claim with the similar incidents faced by
international tribunals where it was confirmed that only the questions of whether a
certain crime is covered by a particular international law and legal interpretation
extending to that is jurisdictional, however matters pertaining to factual and evidence
are aspects to be examined at trial as well as the questions of elements and definitions
of a crime.

IV. PROSECUTOR V. LUBANGA

Decision on Sentence pursuant to Article 76 of the Statute
ICC-01/04-01/06-2901, 10 July 2012

Thomas Lubanga Dyilo, a Congolese national who founded the Union of Congolese
Patriots, was the first person to be sentenced by the International Criminal Court. On
14 March 2012, Lubanga was convicted of committing, as co-perpetrator, war crimes
from 1 September 2002 to 13 August 2003, consisting of:

“Enlisting and conscripting of children under the age of 15 years into the
Force patriotique pour la libération du Congo [Patriotic Force for the
Liberation of Congo] (FPLC) and using them to participate actively in
hostilities in the context of an armed conflict not of an international character
from 1 September 2002 to 13 August 2003, punishable under article
8(2)(e)(vii) of the Rome Statute.”10

On 10 July 2012, the Chamber confirmed a sentence for each crime, followed by a
joint sentence which pronounced the total interval of imprisonment, as prescribed
under Article 78(3) of the Rome Statute. The Court however did not impose any fines

9
https://goo.gl/1TCEBd {redirects to the official website of the International Criminal Court; last
accessed 1st Sept 2015}
10
http://goo.gl/lyxzS {redirects to the official website of the International Criminal Court; last
accessed 1st Sept 2015}

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on Lubango, owing to his cooperation throughout the trial. The different sentence
periods that Lubango was given are as follows:
 “13 years imprisonment for having committed, jointly with other persons,
the crime of conscripting children under the age of 15 into the UPC;
 12 years‟ imprisonment for having committed, jointly with other persons,
the crime of enlisting children under the age of 15 into the UPC;
 14 years‟ imprisonment for having committed, jointly with other persons,
the crime of using children under the age of 15 to participate actively in
hostilities; and
 A total period of 14 years‟ imprisonment – meaning that the sentences for
each crime will run concurrently.” 11

So Lubango was sentenced to 14 years of imprisonment, but the time from his
surrender to the International Criminal Court on 16 March 2006 until 10 July 2012,
the day of the sentencing, was to be deducted as pronounced by the judges. The
Appeal Chamber too, with a majority, confirmed the verdict of the Trial Chamber and
sentenced Lubango 14 years of imprisonment.

The Trial Chamber came to their verdict having considered the crime in accordance ot
the damage caused by it with special reference to “the harm caused to the victims and
their families, the nature of the unlawful behaviour and the means employed to
execute the crime; the degree of participation of the convicted person; the degree of
intent; the circumstances of manner, time and location; and the age, education, social
and economic condition of the convicted person”. 12 Another factor that was given
importance by the Court was the recognition of the large scale, wide spread nature
and degree of Lubanga‟s involvement in the crimes as well as his intent to commit
them. It was also noted that with special reference to the crimes Lubanga was accused
of, that is for the conscripting and enlisting of children under the age of 15 and using
them in a hostile environment as a contributory factor, made it a very serious offence

11
https://goo.gl/1TCEBd {redirects to the official website of the International Criminal Court; last
accessed 1st Sept 2015}
12
http://goo.gl/hCnuJv {redirects to the official website of the International Criminal Court; last
accessed 1st Sept 2015}

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owing to “the vulnerability of children, meaning that they need to be afforded
particular protection that does not apply to the general population, as recognised in
various international treaties”13.

V. PROSECUTOR V. LUBANGA
Decision establishing the principles and procedures to be applied to reparations
ICC-01/04-01/06-2904, 7 August 2012

The decision made by Trial Chamber I in the case against Thomas Lubanga Dyilo is
the premier reparation decision at the International Criminal Court. This decisions
fulfills the purpose of providing foundational guidelines for the allocation of
reparations, however does not go on to explain the nature of these reparations and
how or to whom they are to be given. The Court stated that under the supervision of a
newly constituted Trial Chamber I, the reparations process and its duties would be
given to a Trust Fund for Victims (TFV).

The potential beneficiaries could be identified easily as there was a wide provision for
the eligibilty to receive reparation, wherein the victims are eligible if they can
establish that they are direct or indirect victim of the atrocities caused by Lubanga and
his actions regarding the conscription and use of children under the age of 15 in Ituri
in the Democratic Republic of Congo, from 1 September 2002 to 13 August 2003.
These members included those who intervened to help direct victims, those that stood
up against the perpetrators of the crimes and also legal entities. The principles
embodied in the Chamber‟s decision laid emphasis on the need to ensure that
reparations were distributed freely and without discrimination as regards to gender,
ethnicity, age and that it had to aim to reconcile the children enlisted with their
families in the Ituri region while guaranteeing their dignity and privacy.

The Chamber expressed preference for collection reparation but stated that both
individual and collective reparations would be approved. The types of reparations set

13
http://goo.gl/hCnuJv {redirects to the official website of the International Criminal Court; last
accessed 1st Sept 2015}

10
out by the Court include – “compensation, rehabilitation, publication of the decision,
and measures that contribute to society‟s awareness of the crimes and improve the
position of victims (e.g. campaigns and outreach programs)”14 Another measure that
was prescribed by the Chamber was that the reparation measures had to be formulated
only after taking into account the sexual violence suffered by the victims and their
age, along with the necessity to connect the formerly enlisted children to their
community homes.

Given Lubanga‟s indigence, the Chamber decided that “the TFV shall complement the
funding of a reparations award, albeit with the limitations of its available resources
and without prejudice to its assistance mandate.”15 It was left open to Lubanga to
furnish an apology to the victims either publicly or confidentially, the decision for
which he could exercise himself.

The Chamber endorsed a five-step plan for the allocation of reparations wherein the
Chamber would oversee the implementation and resolve problems that might arise,
however the TFV would not have to take orders or instructions from the Chamber,
this plan was initially proposed by the TFV and is as follows:

1) “The TFV, the Registry, the Office of Public Counsel for Victims (OPCV) and
the team of experts would establish which locations ought to be involved in
the reparations process, focusing particularly – but not exclusively – on the
places referred to in the Judgment and where the crimes were committed.
2) There would be “a process of consultation in the localities that are identified.”
3) The team of experts would, during this consultation phase, assess the harm
suffered.
4) Public debates should be held in each location to explain the reparations
principles and procedures, and to address victims‟ expectations.

14
http://goo.gl/hCnuJv {redirects to the official website of the International Criminal Court; last
accessed 1st Sept 2015}
15
http://goo.gl/hCnuJv {redirects to the official website of the International Criminal Court; last
accessed 1st Sept 2015}

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 5) Finally, proposals for collective reparations would be developed in each
locality and then presented to the newly constituted Chamber for its
approval.”16

The Defense, the OPCV jointly with one of the legal representatives for victims
appealed the order that dealt with the reparation decision and process. On 3 March
2015, the order of reparations passed by Trial Chamber I was amended by the
Appeals Chamber and the TFV was instructed to present a draft implementation plan
for the procedure of collective reparations within the next months.

VI. THE PROSECUTOR V. DOMINIC ONGWEN

ICC-02/04-01/15

Dominic Ongwen, the alleged Brigade Commander of the Sinia Brigade of the Lord‟s
Resistance Army (LRA), allegedly committed three counts of crimes against
humanity and four counts of war crimes (in the Lukodi IDP camp in Gulu, Uganda in
May 2004) for which his charges hearing has been scheduled for 21 January 2016.

https://commons.wikimedia.org/wiki/File:Gulu_women_-_cut_lips.jpg

(Caption: Two women in Gulu, Uganda whose lips have been cut off by Lord's
Resistance Army rebels, as a punishment for washing clothes, looking for firewood or
food, or doing other chores in the vicinity of the camps)

“He is criminally responsible for seven counts on the basis of his individual criminal
responsibility (article 25(3)(b) of the Statute) including:

1. Three counts of crimes against humanity: murder under article 7(1)(a);

enslavement under article 7(1)(c); inhumane acts of inflicting serious bodily
injury and suffering under article 7(1)(k); and,
2. Four counts of war crimes: murder under article 8(2)(c)(i); cruel treatment of
civilians under article 8(2)(c)(i); intentionally directing an attack against a

16
http://goo.gl/hCnuJv {redirects to the official website of the International Criminal Court; last
accessed 1st Sept 2015}

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 civilian population under article 8(2)(e)(i); pillaging under article
8(2)(e)(v).”17

He was surrendered to ICC custody on 16 January 2015, and his initial appearance
hearing took place on 26 January 2015.

https://commons.wikimedia.org/wiki/File:Ugandan_children.jpg

(Caption: Children displaced by the insurgency of the Lord's Resistance army of

Northern Region of Uganda)

17
http://goo.gl/hCnuJv {redirects to the official website of the International Criminal Court; last
accessed 1st Sept 2015}

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