OTP Briefing

Issue #142 1-15 June 2013

NEWS
Pre-Trial Chamber I adjourns the hearing on the Gbagbo confirmation of charges and requests the Prosecutor to consider providing further evidence or conducting further investigation
3 June - Pre-Trial Chamber I, by majority, Judge Fernndez de Gurmendi dissenting, adjourned the hearing on the confirmation of charges and requested the Prosecutor to consider providing further evidence or conducting further investigation with respect to the charges presented against Laurent Gbagbo in accordance with article 61(7)(c)(i) of the Statute. The Chamber considered that the Prosecutors evidence, viewed as a whole, although apparently insufficient, did not appear to be so lacking in relevance and probative value that it left the Chamber with no choice but to decline to confirm the charges. Judge Fernndez de Gurmendi dissented from the decision adjourning the confirmation of charges hearing. I recognise that the adjournment of the hearing within the meaning of article 61(7)(c)(i) of the Statute is a valid procedural avenue that Pre-Trial Chambers have the duty to consider, in certain circumstances, as part of their mandate to contribute to the establishment of the truth. However, for the reasons developed in this Opinion, I cannot agree with the terms of the adjournment as formulated by my colleagues in the case at hand, as it presupposes an interpretation of the role of the Pre-Trial Chamber and of the applicable procedural and substantive law that I do not share. Judge Fernndez de Gurmendi considers that the adjournment as formulated presupposes an interpretation of the role of the pre-trial chamber, the applicable evidentiary standard required for the confirmation of charges and of the procedural and substantive applicable law that she does not share. Accordingly, she does not agree either with the specific terms of the request to the Prosecutor. The Prosecutor made the following statement: My Office has considered the decision by 2 out of 3 Judges of the ICC Pre-Trial Chamber adjourning the confirmation of charges hearing in the Laurent Gbagbo case to a later date. We have decided to seek leave to appeal in relation to three issues: (a) the applicable evidentiary standard for confirmation proceedings, (b) whether each incident underlying the contextual elements of crimes against humanity must be established to the standard of proof enshrined in article 61 (7) of the Statute; and (c) whether the Pre-Trial Chamber can order the Prosecution to amend the factual components of its charges. In the meantime, Mr Gbagbo remains in detention. We are continuing our investigation in Cote dIvoire and we are ready to present additional evidence at the appropriate stage of the proceedings. For my office, it is crucially important that people understand that impartiality and independence are at the heart of the ICC as a judicial institution. We will continue our investigations, on behalf of all the victims, regardless of their ethnic or political affiliation. Ivorians should remain calm and have confidence that justice will take its course .

Prosecutors briefing to the UN Security Council on the situation in Darfur

5 June - Prosecutor Bensouda briefed the UN Security Council on the situation in Darfur: It is with a deep sense of frustration, even despair, that my Office presents its seventeenth report to this Council on the situation of Darfur. Regrettably, each briefing has been followed by inaction and paralysis within the Council while the plight of victims of crimes committed in Darfur has gone from bad to worse. She added We have done our part and it is up to this Council to live up to the legitimate expectations of Darfurs victims, namely that individuals alleged to be responsible for their daily sufferings are brought to justice. Furthermore, the Prosecutor noted in particular the Councils concern about the actions of some individuals affiliated with the Government of the Sudan and armed groups, who continue to commit violence against civilians, impede the peace process, and disregard the demands of the Council. I believe the link between these different actions is critical; I would submit that those individuals who commit crimes are inherently disinterested in the peace process or the demands of this Council. They do not put the true interests of the Sudan first. And as long as they enjoy impunity for the crimes they commit, they will continue to represent a threat to international peace and security. In her speech, the Prosecutor encouraged both the United Nations and the African Union to work together with the OTP to monitor actual progress in Darfur. We have repeated this call too many times without effect; we cannot simply repeat history in having these discussions. Additionally, Prosecutor Bensouda called on the Security Council to find creative ways to engage with all relevant organizations addressing the Darfur situation, including the ICC, and to assess progress in shared goals, in particular the goal of bringing to justice those alleged to have committed the most serious crimes of concern to the international community. We stand ready to continue doing our part, but time is long past due for this Council to act with courage and conviction by adopting appropriate measures within its mandate to ensure that Sudan fugitives are brought to justice sooner rather than later. During her stay in New York, Prosecutor Bensouda also met with Mr Adama Dieng, the UN Secretary Generals Special Adviser on the Prevention of Genocide, and discussed matters of common interest.

OTP Activities
OVERVIEW
8 situations under investigation 18 cases in relation to 25 persons Arrest warrants outstanding against 12 individuals 8 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

Preliminary examinations refer to the analytical processIN byTHE which OTP assesses whether there is a reasonable basis to proceed with an INCLUDED 14 the 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
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I. Preliminary Examinations

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). Currently, the OTP is conducting preliminary examinations into eight situations: Afghanistan, Honduras, Korea and the Comoros referral (phase 2), Colombia, Georgia, Guinea, and Nigeria (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; 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

10 June - MONUSCO and the Special Representative of the UN Secretary General for Children and Armed Conflict, Ms. Leila Zerrougui, are concerned by reports indicating that at least 53 children are at risk of being re-recruited by the M23 rebel group in Nyiragongo Territory, North Kivu Province, in the Democratic Republic of Congo. I strongly condemn the recruitment and use of children as well as other grave child rights violations committed by the M23 and other armed groups, said Roger Meece, the Special Representative of the Secretary-General in the Democratic Republic of the Congo. I ask the M23 and other armed groups to immediately stop abusing children and I want to remind their leaders that they will be personally held accountable for any violations against children including the recruitment, re-recruitment or use of children in their ranks, added Leila Zerrougui, the Special Representative of the Secretary-General for Children and Armed Conflict. Mr. Meece and Ms. Zerrougui reiterated their joint commitment to ensure the full protection of children affected by the armed conflict in the east of the country in collaboration with the Government of the Democratic Republic of Congo, UN and NGO partners. 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 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
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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.

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 10 September 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 12 November 2013 (charges withdrawn against Francis Kirimi Muthaura)

3 June Trial Chamber V decided to set the opening of the trial in the case against William Samoei Ruto and Joshua Arap Sang on 10 September 2013 in order to allow the Defence sufficient time to carry out its preparation. On 6 May 2013, Trial Chamber V had decided to vacate the date of the trials start, scheduled on 28 May 2013, indicating that a new trial date would be set in due course. The Chamber held a hearing on 14 May 2013, in the presence of the two accused, to discuss procedural matters and other issues including the Prosecutors request to add six witnesses to the list of witnesses and the Defences request to vacate the trial date to adequately prepare its case. 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 Libyas request to postpone the execution of the arrest warrant on 6 February 2013, and ordered immediate surrender

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 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

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III. Arrests - Cooperation

12 PERSONS SOUGHT BY THE COURT

The Prosecutor v Simone Gbagbo (more information here) Current location: Cte dIvoire 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

11 June The government of Yemen agreed to join the ICC and delegated the Minister of Legal Affairs, the Minister of Parliamentarian Affairs and the Minister of Human Rights to complete the legal procedures to ratify the Rome Statute. The decision, which was circulated in several Yemeni Media outlets, including Voice-Yemen, Yemeni national television and Sabaa agency, followed a memorandum submitted by the Minister of Legal Affairs and the Minister of Human Rights on this subject.
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The memorandum summarized the advantages and benefits of the ratification of the Rome Statute, including fighting impunity, individual criminal responsibility, fairness of judicial process and complementarity. The Rome Statute is yet to be discussed at the parliament level.

V. Upcoming Events July

1 8 Prosecutor and Deputy Prosecutor celebrate the Day of International Criminal Justice, The Hague 15 22 29 2 4 9 3 10 11 5 12 6 13 7 14

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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

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