E-letter May 2009



Women's Initiatives for Gender Justice



Legal Eye on the ICC E-letter




In this issue


Dear Friends,

Welcome to the second issue of Legal Eye on the ICC, a monthly e-letter 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 cases relating to the conflicts in Uganda, the Democratic Republic of the Congo (DRC), Darfur, Sudan and the Central African Republic (CAR).

In addition to the Legal Eye on the ICC we also produce Women's Voices, a monthly e-letter providing updates and analysis on political developments, strategies for the pursuit of justice, the status of peace talks, and reconciliation efforts from the perspective of women's rights activists from the four conflict situations.

With both online e-letters we will also update you about the programmes, legal and political advocacy, campaigns, events, and publications of the Women's Initiatives.

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.

DRC :: Lubanga trial update

Our March issue reported on the commencement of the trial in the case of The Prosecutor v. Thomas Lubanga Dyilo. Lubanga, President of the Union des patriots Congolais (UPC) and Commander-in-Chief of the Forces patriotiques pour la libération du Congo (FPLC), faces war crimes charges arising out of the alleged UPC/FPLC practice of enlisting and conscripting children under the age of 15 years and using them to participate actively in the hostilities.

When the Trial Chamber commenced a four-week spring recess on 8 April 2009, it had heard evidence from a total of 18 Prosecution witnesses, among them eight former child soldiers, including one girl. The Prosecution has stated that it intends to call approximately 30 witnesses in its case. All of the witnesses who gave testimony during the first two months of the trial proceedings had direct, personal experience of the events to which they testified.

In late March and early April 2009, the Chamber heard testimony from two expert witnesses. Expert witnesses can be called pursuant to the 10 December 2007 order of the Chamber allowing the parties to instruct experts to provide reports and evidence. Under Regulation 44 of the Regulations of the Court, the Chamber itself also has broad latitude to instruct experts.

Gerard Prunier is an expert in the history and politics of the Great Lakes Region of Africa. In May 2008, he was requested by the Office of the Prosecutor to provide a report on the history, characteristics and features of the conflict in the Ituri region of the North-Eastern DRC. In June of 2008, his report was completed and filed as evidence in the Lubanga case. Mr Prunier appeared before the Chamber on 26 and 27 March 2009 to answer questions arising from his report. Cross-examination highlighted the inter-state nature of the conflict in Ituri and the role played by neighbouring states — in particular Uganda and Rwanda — in backing the various militia groups fighting for control of Ituri. Mr Prunier's evidence also highlighted the frequent shifts between the militia groups, as well as between the groups and their foreign-state backers.

Elisabeth Schauer is a Clinical Psychologist with a focus on trauma treatment in crisis regions and specialising in the fields of psychotraumatology, women's and children's health, and violence and human rights. Her expert report on the psychological impact of child soldiering was completed and filed as evidence in the Lubanga case in February 2009 at the request of the Chamber.

Dr Schauer took the witness stand on 7 April 2009 to answer questions arising from her report. Responding to questions from the Prosecution, Dr Schauer told the Chamber that, in most populations worldwide, girls show higher overall rates of Post-Traumatic Stress Disorder (PTSD) than boys, and that this is because girls are exposed earlier and more frequently to the types of traumatic experiences most likely to trigger PTSD. She also testified that, in contrast to boys who develop PTSD, girls are more likely to internalise their suffering, leading to co-morbid depressive symptoms. Responding to questions from the Office of the Public Counsel for Victims, Dr Schauer spoke of the difficulties experienced by child soldiers attempting to reintegrate into their communities post-conflict, stressing the particular difficulties of former girl soldiers returning to their communities with babies born as a result of forced 'marriages'.

Dr Schauer's report noted that almost 40% of child soldiers worldwide were girls. In response to questions put by Lubanga's lawyer, she conceded that this figure was quoted from a specific source and that she did not know whether it was accurate for militia groups operating in the Eastern DRC during the relevant period. Dr Schauer told the Chamber that girls who have been raped show very high rates of PTSD and that rape is among the most predictive events causing PTSD in girls. She confirmed that, in her opinion, a girl who is abducted by a militia group, and becomes a commander's 'wife' but never takes part in combat, can still by definition be considered a child soldier. Finally, she noted the lack of availability of appropriate PTSD therapy anywhere in Eastern DRC.

All the former child soldiers who have testified to date, along with a number of other witnesses, have given evidence concerning the sexual violence routinely perpetrated upon the girl recruits by their commanders. With roughly 60% of the Prosecution's witnesses having now testified, it is possible to recognise commonalities across the evidence of these witnesses concerning this sexual violence. All witnesses who have testified to date told the Chamber that the young recruits all received the same training, were outfitted in the same uniforms and issued with the same weapons, and were sent into the battlefield to fight with no distinction made on the basis of either age or gender.

However, all witnesses also testified that, in addition to their duties as soldiers, the girls were expected to cook for their commanders and to provide them with ‘sexual services’.  Some of the witnesses referred to this latter role as ‘sleeping with’ the commander or being his ‘wife’ while others used the term ‘rape’ to describe what the young girls experienced.  All witnesses made it clear that the girls involved had no choice in the matter and could have been killed for refusing. One former child soldier testified to the remorse he felt after having, on his commander’s orders, killed a young girl who had refused to provide the commander with sexual services. Another former child soldier testified to having watched a young girl die trying to abort after becoming pregnant as a result of rape in a UPC training camp. This witness testified that a female recruit who was discovered to be pregnant would be chased out of the camp on the commander’s orders and that young girls in this position would often try to abort the pregnancy to avoid this fate.

Since 2006, the Women's Initiatives has advocated with the Office of the Prosecutor for the investigation and prosecution of gender-based crimes committed by the UPC, including against girl soldiers within their own ranks. Based on our documentation and analysis, we have long advocated the position that rape and other forms of sexual violence were an integral part of the process of enlistment and conscription for girls, particularly during the initial abduction phase and period of military training by the UPC, and that perpetrating sexual violence upon girl soldiers was an inherent feature of the UPC's enlistment and conscription practices.

Trial transcripts for The Prosecutor v. Thomas Lubanga Dyilo can be found at
http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/Situations/ Situation+ICC+0104/Related+Cases/ICC+0104+0106/Transcripts/Trial+Chamber+I/


DRC :: Developments in the case against Katanga and Ngudjolo

The second case arising out of the investigation into crimes committed in the Democratic Republic of Congo (DRC), the Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, has now been scheduled for trial commencing 24 September 2009. In a decision issued on 27 March 2009, Trial Chamber II ruled that a tentatively-scheduled June or July start was no longer feasible in light of a number of factors. These include the time required

a.                   for the Defence to conduct investigations on the ground in Eastern DRC;

2.       for the Prosecutor to complete his disclosure obligations;

3.       for the Chamber to consider and rule on — and then possibly await the outcome of an appeal concerning — an application brought by Katanga challenging the admissibility of the case against him; and finally

4.       for the Registry to process and the Chamber to rule on 150 further victim applications for participation in the proceedings.


CAR :: Adjournment of Bemba confirmation hearing proceedings

As reported in the March Legal Eye on the ICC, the confirmation of charges hearing for the Prosecutor v. Jean-Pierre Bemba Gombo took place before Pre-Trial Chamber III on 12-15 January 2009. It was anticipated that the Chamber would issue a decision on the confirmation of charges within the 60-day period required by Regulation 33 of the Regulations of the Court. However, on 3 March 2009, without either confirming or declining to confirm the charges against Bemba, the Chamber issued a decision adjourning the confirmation hearing proceedings pursuant to Article 61(7)(c)(ii), and inviting the Prosecutor to consider amending the document containing the charges, specifically with respect to the mode of liability under which Bemba is charged. The Chamber noted that it was 'of the view that the evidence submitted appears to establish a different crime within the jurisdiction of the Court [than the crime Bemba was charged with]'. The Chamber decided to adjourn the hearing 'in order to overcome deficiencies concerning the legal characterisation of the facts' and noted that it would only be 'in a position to make its final determination on the merits of the case' after the Prosecutor's submission of the requested changes.

This decision does not concern the substantive crimes with which Bemba has been charged, but rather the appropriate mode of liability under which Bemba should be charged for those crimes. The question is whether Bemba should face charges under Article 25 of the Statute, which deals with 'individual criminal responsibility', or whether, alternatively, he should face charges under Article 28, which deals with 'the responsibility of commanders and other superiors'.

While both modes of liability were raised and treated as potential outcomes by the parties during the confirmation hearing proceedings, the Arrest Warrant application filed by the Prosecutor in May 2008, along with the document containing the charges filed subsequent to Bemba's arrest and transfer to The Hague, contemplates Bemba's liability only under Article 25. In this decision the Chamber has made it clear that it doesn't at this point see Article 25 liability as being supported by the evidence submitted in the confirmation hearing. The Chamber acknowledged that the Prosecutor had explicitly noted in the charging document that he was not 'excluding any other applicable mode of liability'. Nonetheless, the Chamber ruled that 'considerations of fairness' to the accused require that the document containing the charges be formally amended to include Article 28 as a mode of liability and that there must be an adjournment to allow time (1) for the charging document to be amended and filed, and (2) for the Defence to respond to the amended form of the document.

On 30 March 2009 the Prosecutor filed an amended charging document which includes Article 28 as an alternative mode of liability, rather than in substitution for Article 25(3)(a), making it clear that the Prosecutor continues to view Article 25(3)(a) as the primary mode of liability. In a brief explanatory document filed with the amended charging document, he submits that 'the charges should preserve the choice for a future Trial Chamber by preserving its flexibility to render a determinative ruling on the appropriate form of [liability] having heard in full all of the evidence pertaining to the case'.

The legal representatives for the victims participating in the case were given until 9 April to submit their observations on the amended charging document and the Defence was given until 24 April to file its response. The Chamber has 60 days from the filing date of the last written submission to render its decision on the confirmation of charges. On that basis, it is unlikely there will be a decision until late June. The Women's Initiatives for Gender Justice will continue to monitor these proceedings closely and will provide updates as events in the Bemba case unfold.


Uganda :: Decision on admissibility in the case against
et al

On 10 March 2009 Pre-Trial Chamber II issued a decision on the admissibility of the case against Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen. This case, the only one to date arising from the Prosecutor’s investigation into the conflict in Northern Uganda, began in September 2005 with the issue of Warrants of Arrest for these four suspects. (A fifth suspect in the case, Rasko Lukwiyo, has since been confirmed dead and proceedings against him were discontinued in July 2007.)

None of these suspects has yet been apprehended and the Chamber's repeated Requests for Cooperation to the Government of Uganda (GoU) — who initially referred the situation to the Court — have resulted in little substantive response. In October 2008, the Chamber initiated proceedings under Article 19(1) of the Rome Statute to determine whether the Court continues to have jurisdiction over the case against Kony et al. The Chamber's action was taken in the context of developments in Uganda involving the Agreement on Accountability and Reconciliation and Annexure negotiated as part of the Peace Talks between the GoU and the LRA. These developments include steps towards the establishment of a Special Division of the High Court of Uganda designed to try individuals alleged to have committed serious crimes during the conflict, and more recent statements made by the Government of Uganda that it was now prepared to try Kony and the others on Ugandan soil.

However, it should be noted that, under provision 4.1 of the Agreement on Accountability and Reconciliation, 'state actors shall be subjected to existing criminal justice processes and not to special justice processes under this Agreement’.  This means that military personnel and possibly other Government-related individuals alleged to have committed serious crimes during the conflict would be dealt with either through the Ugandan military tribunal or the existing justice procedures.  As such, it should be borne in mind that the Special Division of the High Court is essentially intended as a Court to try the LRA only.

Prior to making its determination of the admissibility of the case, the Chamber sought and received submissions from the Government of Uganda, the Prosecutor and the Office of Public Counsel for Victims (OPCV), as well as from a specially appointed ad hoc counsel for the suspects. It also accepted an amicus curiae brief from two organisations working with victims in Northern Uganda.

In its decision on admissibility, the Chamber concluded that it was both 'legitimate and appropriate for [it] to exercise the power enshrined in Article 19(1) at this particular stage'. The Chamber held that statements by the Government of Uganda to the Court concerning the meaning and scope of the Agreement and the Annexure were 'ambiguous … as to where and by whom the alleged perpetrators of atrocities should be tried' and pointedly noted that such statements not only demonstrated a lack of clarity on the part of Uganda but were internally contradictory. The Chamber also noted that the Peace Agreement remained unsigned and that the steps taken to implement the Annexure were only 'preliminary and partial'. The Chamber ruled that it would be 'premature and therefore inappropriate' to assess the features envisaged for the new court or to examine its legal framework and concluded that 'the purpose of the [admissibility determination] proceedings remains limited to dispelling uncertainty as to who has ultimate authority to determine the admissibility of the Case: it is for the Court, and not for Uganda, to make such determination'.

This Pre-Trial Chamber decision has been appealed by the court-appointed Defence counsel who is charged with preserving the rights of the accused in the proceedings. The appeal documents have also been formally transmitted by the Registry to the Government of Uganda.

From 1-4 June 2009, the Women's Initiatives for Gender Justice will conduct a workshop in Soroti, Northern Uganda, with 40 women from different regions of the Greater North. This workshop will include an overview of the Agreement and Annexure, presentations and group work on formal accountability mechanisms and alternative justice mechanisms, and the possible impact of both for women.


Darfur :: Update on Arrest Warrant proceedings

As reported in our March issue, on 4 March 2009 Pre-Trial Chamber I issued a Warrant of Arrest for Omar Hassan Ahmad Al'Bashir, the sitting President of Sudan, for his alleged role in crimes committed in Darfur. In this issue, we provide an analysis of the decision issued by the Chamber along with the Arrest Warrant and information on steps taken by the Court and the Prosecutor subsequently.


The Chamber ruled that the case against Al'Bashir fell within the jurisdiction of the Court. It also ruled that Al'Bashir's 'position as current Head of a state which is not a party to the Rome Statute' had no effect on the Court's jurisdiction in a case against him. The Chamber noted that one of the core goals of the Statute is to put an end to impunity for the perpetrators of the most serious crimes of concern to the international community as a whole, 'which must not go unpunished'. The Chamber also noted that Article 27 of the Statute explicitly provides that there is no immunity for Heads of State before the ICC.

War crimes

The factual matrix behind the charges sought by the Prosecutor involves hundreds of unlawful attacks on towns and villages throughout the Darfur region inhabited by members of the Fur, Masalit and Zaghawa groups between 2003 and 2008. The Prosecutor submitted, and the Chamber accepted, that these attacks took place in the context of 'a protracted armed conflict not of an international character', as this is defined in Article 8(2)(f) of the Statute. The Chamber ruled that the attacks were a 'core component' of a counter-insurgency campaign pursued by the Government of Sudan using the Sudanese Armed Forces and their allied Janjaweed Militia, the Sudanese police forces, the National Intelligence and Security Service (NISS) and the Humanitarian Aid Commission (HAC).

Crimes against humanity

The Prosecutor also submitted that the attacks were 'widespread and systematic' and again the Chamber agreed. The Chamber ruled that the attacks were 'large in scale', affecting 'hundreds of thousands of individuals', and took place in 'large swathes of the territory of the Darfur region' for 'well over five years' and 'followed, to a considerable extent, a similar pattern'. The Chamber ruled that there were reasonable grounds to believe that thousands of civilians belonging primarily to the Fur, Masalit and Zaghawa groups were murdered, and that some of the murders amounted to 'acts of extermination' because of the large numbers of civilians killed at one time. The Chamber also ruled that there were reasonable grounds to believe that hundreds of thousands of civilians had been subject to forcible transfer by Sudanese Government forces, that civilians from the Fur, Masalit and Zaghawa groups had been subjected to acts of torture in the aftermath of the attacks on the towns and villages, and that 'thousands of civilian women belonging primarily to the [target] groups' were raped by Sudanese Government forces and their allied Janjaweed Militia.


In the application for the Arrest Warrant filed on 14 July 2008, the Prosecutor requested that the Arrest Warrant also be issued in respect of the crime of genocide, under Article 6 of the Statute. He argued that Al'Bashir should bear criminal responsibility for three counts of genocide for (1) killing of members of the Fur, Masalit and Zaghawa ethnic groups; (2) causing serious bodily or mental harm to members of these groups, including by torture and rape, and (3) deliberately inflicting on these groups 'conditions of life calculated to bring about the groups' physical destruction'.

The Chamber was unable to arrive at a unanimous decision in respect of this crime. The majority was not satisfied that the evidence submitted by the Prosecutor was sufficient to allow it to find reasonable grounds to believe that the Government of Sudan, with Al'Bashir at its helm, acted with a specific genocidal intent 'to destroy in whole or in part the Fur, Masalit and Zaghawa groups'. However, in a separate and partly dissenting opinion, Judge Ušacka noted that she was satisfied that there were reasonable grounds to believe that Al'Bashir 'possessed genocidal intent and is criminally responsible for genocide'. The essence of her divergence with the majority of the Chamber concerns, first, what is the appropriate evidentiary burden on the Prosecutor at the stage of an Arrest Warrant application and, second, the conclusions which can be drawn from an analysis of the evidence presented by the Prosecutor.

In the view of Judge Ušacka, the majority of the Chamber had misinterpreted the requirements of the Statute, holding the Prosecutor to a higher evidentiary burden than was applicable at this preliminary stage of the proceedings. Judge Ušacka concluded that, when analysed using the appropriate evidentiary burden, the evidence presented by the Prosecutor was sufficient to support findings that

a.                   there were reasonable grounds to believe that the Fur, Masalit and Zaghawa groups were targeted as the result of a perception of an affiliation between these groups and the rebels;

2.                   it was reasonable to infer that Al'Bashir possessed the intent to destroy the Fur, Masalit and Zaghawa groups as such;

3.                   none of the evidence submitted by the Prosecutor renders an inference of genocidal intent unreasonable;

4.                   there were reasonable grounds to believe that both mass killings and murders took place in the context of a widespread and systematic attack on the Fur, Masalit and Zaghawa groups as such;

5.                   there were reasonable grounds to believe that acts of torture, forcible transfer and rape occurred in the context of the widespread and systematic attack on these groups; and

6.                   there were reasonable grounds to believe that these groups were subjected to conditions calculated to bring about the destruction of the groups as such.


Mode of liability

The Chamber found that there were reasonable grounds to believe that 'a common plan to carry out a counter-insurgency campaign against [Darfurian rebel groups] was agreed upon at the highest level of the Government of Sudan, by Omar Al'Bashir and other high-ranking Sudanese political and military leaders' and that the unlawful attacks, forcible transfers and acts of murder, extermination, rape, torture and pillage were all part of this 'common plan'. Further, the Chamber found that there were reasonable grounds to believe that Al'Bashir, as 'de jure and de facto President of the State of Sudan and Commander-in-Chief of the Sudanese Armed Forces' at all relevant times, 'played an essential role in coordinating the design and implementation of the common plan'. As such, the Chamber concluded, there are reasonable grounds to believe that Al'Bashir is criminally responsible under Article 25(3)(a) of the Statute as either an indirect perpetrator or an indirect co-perpetrator of crimes against humanity and war crimes. Furthermore and in the alternative, the Chamber held that there were reasonable grounds to believe that Al'Bashir

a.                   played a role that went beyond coordinating the implementation of the common plan;

2.       was in full control of all branches of the 'apparatus' of the State of Sudan, including the Sudanese Armed Forces and their allied Janjaweed Militia, the Sudanese police forces, the NISS and the HAC; and

3.       used such control to secure the implementation of the common plan.

Necessity for an Arrest Warrant

The Chamber ruled that Al'Bashir's arrest appeared to be necessary under Article 58(1)(b) of the Statute to ensure that (1) he will appear before the Court to answer the charges against him; (2) he will not obstruct or endanger the ongoing investigation into the crimes for which he is alleged to be responsible; and (3) he will not continue with the commission of the above-mentioned crimes'.

Requests for cooperation

Subsequent to the issue of the Arrest Warrant and on the instructions of the Chamber, the Registrar prepared and transmitted three Requests for Cooperation in the arrest and surrender of Al'Bashir. The first of these, dated 5 March 2009, is addressed to the Republic of Sudan. In it, the Chamber recalls that the situation in Darfur had originally been referred to the Court in 2005 as a result of a UN Security Council resolution (Resolution 1593), paragraph 2 of which 'urges all states … to cooperate fully' with the Court. The second request, dated 6 March 2009, addressed to 'All States Parties to the Rome Statute', reminds States Parties of their statutory obligation to comply with all Requests for Cooperation. The third request, also dated 6 March 2009, is addressed to 'All United Nations Security Council members who are not States Parties to the Rome Statute' — a group which includes three of the five permanent members of the Security Council (China, Russia and the United States) as well as three of the ten current non-permanent members (Libya, Turkey and Vietnam). In the request, these UN Security Council members are reminded of Resolution 1593 and, in particular, of paragraph 2 of the Resolution.

The Prosecution's application for leave to appeal

On 10 March 2009, the Prosecutor filed an application for leave to appeal the refusal of Pre-Trial Chamber I to include charges for genocide on the Arrest Warrant. Following the reasoning of Judge Ušacka in her dissent, the Prosecutor argues that the majority decision of the Chamber 'imposes an evidentiary burden that is inappropriate for this early procedural stage' and that the majority of the Chamber had '(a) considered extraneous factors for the purposes of its determination as to whether the evidence established reasonable grounds to believe that [Al'Bashir] had committed genocide; and (b) failed to properly consider, both separately and collectively, critical evidence adduced by the Prosecution'. The Prosecutor submitted that the decision 'contains fundamental errors that not only invalidate it, but will also unavoidably taint any subsequent assessment of fresh evidence brought by the Prosecution, thus affecting the fair and expeditious conduct of the proceedings'. A decision on the Prosecutor's leave application is anticipated shortly.



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