Le Bureau du Procureur

The Office of the Prosecutor

OTP Briefing

Issue #128 NEWS

24 July ‐ 7 August OTP Press Conference in Nairobi 2012 26 July ‐ The OTP held a press conference in Nairobi, during which Mr. Phakiso  OTP Press Conference Mochochoko, Director of the Jurisdiction, Complementarity and Cooperation Division in Nairobi warned the accused the OTP was monitoring whether they violated any of their summons conditions. He further stressed that there is no immunity for ICC crimes  Lubanga case: Trial irrespective of an individual’s position held either as head of State or Government. Chamber I issues first ICC decision on Mr. Mochochoko also indicated the OTP delegation had met with Attorney‐General reparation for victims Githu Muigai and the Cabinet Sub‐Committee on the ICC to discuss cooperation, witness related issues and OTP’s future activities in Kenya. He indicated that there were still pending and delayed requests for cooperation. Additionally, the OTP called upon the Government of Kenya to publicly warn those who intimidate/threaten witnesses that they are committing a crime under Kenyan laws and that they would be prosecuted.

Mr. Mochochoko repeated that it was for the people of Kenya to decide who runs for elections and who to elect as their leader. He further stated that the setting of trial dates in April had nothing to do with Kenya’s election date. The decision on trial dates of 10 and 11 April 2013 was based on the Court’s calendar and workt tha still needs to be done to allow all parties to be ready for trial. The Director of JCCD also indicated that the OTP was aware of threats against witnesses as the trials approach. He stated the Office takes witness protection seriously and would ensure the necessary measures are taken to safeguard those at risk. He warned that those trying to intimidate witnesses or obstruct the work of the OTP would be held accountable.

Addressing the AU’s move to expand the jurisdiction of the African Court on Human and Peoples’ Rights which would assume responsibility for adjudicating the ICC’s current Kenya cases, Mr. Mochochoko indicated that transfer of cases from ICC jurisdiction can only take place if procedures and Statutory criteria for doing so are fully met. Should a request be made, it would be for judges to determine whether such procedural requirements and criteria may be met. In closing, Mr. Mochochoko indicated that the OTP was focusing on consolidating its cases against the four and preparing for trial.

Lubanga case: Trial Chamber I issues first ICC decision on reparations for victims

7 August ‐ Trial Chamber I decided, for the first time in proceedings at the ICC, on the principles that are to be applied to reparations for victims in the context of the case against . The Chamber ordered that proposals for reparations, as advanced by the victims themselves, are to be collected by the Trust Fund for Victims and presented to a newly‐constituted Trial Chamber I for approval. Reparations will then be implemented through the resources of the Trust Fund for Victims that are available for this purpose.

The Chamber considered that it is of paramount importance that the victims, together with their families and communities, participate in the reparations process, and they should be able to express their particular points of view and communicate their priorities.

In accordance with the Chamber’s decision, the potential beneficiaries of an order for reparations are the direct and indirect victims who suffered harm following the crimes of enlisting, conscripting and using children under the age of 15 in Ituri in the DRC, from 1 September 2002 to 13 August 2003. This includes the family members of direct victims, along with individuals who intervened to help the victims or to prevent the commission of these crimes.

The principles established by the Chamber particularly stress the need to ensure that reparations are implemented without any discrimination as regards age, ethnicity or gender, and they should be directed at reconciling the victims of child recruitment and their families and communities in Ituri, whilst preserving their dignity and privacy. Furthermore, the reparations measures are to be formulated taking into account the age of the victims and the sexual violence that they may have suffered, along withe th need to rehabilitate the former child soldiers within their communities.

The Chamber has determined that in the present case reparations are to be implemented through the Trust Fund for Victims, within the limits of its resources. Trial Chamber I highlighted that in order for the reparations award to have effect, the States Parties – including particularly the DRC – and non‐states parties must cooperate, and the Trust Fund will need to receive sufficient voluntary contributions in order to be able to implement a meaningful and efficient reparations programme.

OTP Activities

OVERVIEW 7 situations under investigation 15 cases in relation to 24 persons 12 outstanding arrest warrants 8 preliminary examinations in 4 different continents

Phases

1 case before Pre‐Trial Chambers

6 cases before Trial Chambers 1 verdict

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

II. Investigations and Prosecutions

1. Situation in the Democratic Republic of the Congo (DRC) – Referred: April 2004 Investigation Opened: June 2004 Trials The Prosecutor v Thomas Lubanga Dyilo – charged with war crimes of conscripting, enlisting and using children to actively participate in hostilities committed in the Ituri region 2002 – 2003 Status: Judgment delivered on 14 March 2012

The Prosecutor v and – charged with war crimes and crimes against humanity committed during the attack of the village of Bogoro in the Ituri region on 24 February 2003 Status: Defence case presentation concluded, closing oral statements set from 15 to 23 May 2012

Warrants Pending

The Prosecutor v Bosco Ntaganda – charged with war crimes of conscripting, enlisting and using children to actively participate in hostilities committed in the Ituri region 2002‐2003; 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 Issued: 22 August 2006 & 13 July 2012

The Prosecutor v – 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

2. Situation in – Referred: January 2004 Investigation opened: July 2004 Warrants Pending The Prosecutor v 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 . On 8 November 2007, the OTP submitted information to the PTC on the reported death of .

3. Situation in Darfur, the Sudan – Referred: March 2005 Investigation opened: June 2005 Trial The Prosecutor v Abakaer Nourain and Saleh Mohammed Jerbo Jamus – charged with war crimes committed during an attack against the Haskanita AU peacekeeping base in North Darfur on 29 September 2007 Status: Charges confirmed, trial date to be set

Prosecution to present additional evidence The Prosecutor v Bahar Idriss Abu Garda – charged with war crimes committed during an attack against the Haskanita AU peacekeeping base in North Darfur on 29 September 2007

Warrants Pending The Prosecutor v Omar Al Bashir – charged with war crimes, crimes against humanity and genocide committed as part of the counter‐ insurgency campaign in Darfur 2003 – 2008 (at least) Issued: 4 March 2009 & 12 July 2010 The Prosecutor v 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 Jeane ‐Pierr 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; the Defense will start on 14 August 2012

5. Situation in Kenya – OTP request to start investigation: November 2009 Investigation opened: March 2010 Trials The Prosecutor v William Samoei Ruto and Joshua Arap Sang – charged with crimes against humanity committed during the post‐electoral violence in Kenya on or about 30 December 2007 – end January 2008 Status: Case sent to trial on 23 January 2012, date of trial set for 10 April 2013 (charges were not confirmed against Henri Kosgey, but the OTP will present additional evidence) The Prosecutor v Francis Kirimi Muthaura and Uhuru Muigai Kenyatta – charged with crimes against humanity committed during the post‐ electoral violence in Kenya 24 – 28 January 2008 Status: Case sent to trial on 23 January 2012, date of trial set for 11 April 2013 (charges were not confirmed against Mohammed Ali, but the OTP will present additional evidence)

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.

7. Situation in Côte d’Ivoire – OTP request to start investigation: June 2011 Investigation opened: October 2011 Warrant executed The Prosecutor v – 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 postponed to date yet to be set

2 August ‐ Pre‐Trial Chamber I postponed the confirmation of charges hearing in the case against Laurent Gbagbo until the issue of Mr Gbagbo’s fitness to take part in it is resolved. The commencement of the confirmation of charges hearing was initially scheduled on 13 August 2012. Upon the Defence’s request, the Chamber appointed, on 26 June, three medical experts to proceed with the medical evaluation of Mr Gbagbo with a view to determining whether he is fit to take part in the proceedings against him. The confidential medical reports were filed on 19 July. In its decision on 2 August, the Chamber ordered the Prosecutor and the Defence to submit their observations on the reports, respectively, by 13 and 21 August. In light of the importance of the issue, the Chamber decided to postpone the confirmation of charges hearing until such issue is resolved.

III. Arrests ‐ Cooperation 11 PERSONS SOUGHT BY THE COURT

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

2 August ‐ The UN Security Council issued a statement about the situation in DRC in response to the rising tension in area: “[Members of the UNSC] call on the relevant institutions to ensure that all human rights violations are investigated and that perpetrators are held accountable for their crimes. High Commissioner for Human Rights Navi Pillay recently named five commanders linked to past atrocities who present the gravest risk to civilians: ICC indictee Bosco Ntaganda, , Baudouin Ngaruye, Innocent Zimurinda and Innocent Kaina.”

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

24 July ‐ 1 August ‐ Enough, the Global Centre for the Responsibility to Protect, Invisible Children and Resolve called on the UN and the AU to encourage regional governments to place higher priority on civilian protection and cross‐border cooperation in the face of increasing LRA attacks in DRC and CAR over the last 6 months. It was recently reported that an FARDC battalion working against the LRA in North Eastern DRC has been withdrawn and redeployed to North Kivu in light of the in the East, a leading figure in which is another individual facing a long‐outstanding ICC arrest warrant, Bosco Ntaganda.

31 July ‐ A group of 78 Members of the US Congress, including the Chair of the House Foreign Affairs Committee called on the US President to convene a meeting of key states high‐level UN General Assembly meetings in September to press for concrete commitments on strengthened regional coordination, arrest of Joseph Kony and other top LRA commanders and civilian protection.

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 / Mauritania

IV. Other Co‐operation

22 July ‐ Prosecutor Bensouda gave the opening presentation during the welcome dinner for the participants of The Hague Symposium on Post‐Conflict Transitions & International Justice, organized by the International Peace and Security Institute, in partnership with the Clingendael Institute of International Relations.

25 July ‐ Prosecutor Bensouda gave s speech at the London 2012 Olympic event honouring Mohammed Ali.: “As Prosecutor of the ICC, I pay tribute to Mr. Ali’s devotion to humanitarian endeavors around the globe. Not only does he lend his name and presence to hunger and poverty relief, he also encourages people to respect and better understand one another. In the end, lasting respect for each other’s well‐being is the ultimate goal in life.”

2 August ‐ The Ambassador of China to The Netherlands Mr. Zhang Jun paid a courtesy visit to Prosecutor Bensouda at the end of his term of office. The Prosecutor bid him farewell at the seat of the Court.

V. Upcoming Events

August

5 6 7 8 9 10 11

12 13 14 15 16 17 18

19 20 21 22 23 24 25 The Prosecutor attends the Distinguished Lecture on the 2012 Jonathan I. Charney in International Law organized by VanderBilt University of Law School, Nashville 26 27 28 29 30 31 The Prosecutor The Prosecutor The Prosecutor The Prosecutor participates in 6th participates in 6th participates inh 6t participates in the Annual Annual International Annual International Cox Humanitarian International Humanitarian Law Humanitarian Law Award Lecture Humanitarian Law Dialogs organized at the Dialogs organized at and receives the Dialogs organized Robert H. Jackson the Robert H. Jackson Award for at the Robert H. Center in Chautauqua, Center in Advancing Global Jackson Center in New York Chautauqua, New Justice at Case Chautauqua, New York Western Reserve York University School of Law, Cleveland

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