Updates from the International and Internationalized Criminal Courts Shaleen Brunsdale American University Washington College of Law

Human Rights Brief

Volume 16 | Issue 1 Article 8

2008 Updates from the International and Internationalized Criminal Courts Shaleen Brunsdale American University Washington College of Law

Rita Espinoza American University Washington College of Law

Sarah Venti American University Washington College of Law

Katherine Anne Cleary American University Washington College of Law

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Recommended Citation Brunsdale, Shaleen, Rita Espinoza, Sarah Venti, and Katherine Anne Cleary. "Updates from the International and Internationalized Criminal Courts." Human Rights Brief 16, no.1 (2008): 44-49.

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updates from international and internationalized criminal courts & tribunals

International Cr i m i n a l The proposed amended indictment con- Sentencing of Rasim Deli ć Tr i b u n a l f o r t h e Fo r m e r tains several counts of genocide, perse- Yu g o s l a v i a a n d t h e Bo s n i a n cution, murder, deportation, terror, and On September 15, 2008, Rasim Deli ć, Wa r Cr i m e s Ch a m b e r s taking of hostages. Karadži ć waived his the Commander of the Main Staff of the right to duty counsel and decided to rep- Army of Bosnia-Herzegovina (ABiH), was The Arrest of Radovan Karadži ć resent himself, stating that the Tribunal is sentenced to three years imprisonment. Deli ć is one of the most senior military Former Bosnian Serb leader, Radovan not a legitimate court, but rather represents commanders — as well as one of only a Karadži ć, was arrested on July 21, 2008 by a “bastardized judicial system” which was few Bosnian Muslims — to be tried before Serbian officials. Karadži ć was indicted for “created to blame the Serbs.” the Tribunal on charges of superior crimi- a host of human rights violations including Meanwhile, Karadži ć’s military com- nal responsibility for the crimes of murder genocide, extermination, and inhumane mander, Ratko Mladi ć, is still on the run. and cruel treatment. acts. He is charged with the killing of thou- Mladi ć was also jointly indicted more than sands of Bosnian Muslims and Croats dur- a decade ago for genocide, complicity in Deli ć was indicted in March 2005, and ing the Bosnian war and for the Srebrenica genocide, crimes against humanity, and his indictment was amended in June 2006. massacre, in which approximately 8,000 violations of the laws or customs of war. His alleged crimes included failing to take Muslim men and boys were killed. The arrest of Karadži ć led to renewed reasonable measures to punish the perpetrators of executions of captured Bosnian Karadži ć was on the run for nearly thir- speculation that Mladi ć, the commander Croats and surrendered HVO soldiers in teen years, eluding UN and NATO efforts of the Bosnian Serb Forces, was also the Travnik municipality in central Bosnia to capture him. His arrest by Serbian within reach. The tribunal’s prosecutors and Herzegovina; failing to take necessary security officials brought a sense of relief have been convinced for years that Mladi ć steps to prevent torture, beating, murder, to victims and their families as well as to was in hiding in Serbia, although there is and decapitation committed by his subor- Serbian officials who were under increas- currently no confirmation of this belief. dinates in a detention facility for captured ing pressure to arrest Karadži ć. But, there Serbia’s current request to join the Euro- Bosnian Serb Army soldiers; and failing still remain many Serbian nationalists who pean Union hinges on Mladić’s arrest. to prevent the rape of three women by his are strong supporters of Karadži ć and who Arresting Mladi ć may prove more difficult subordinates in the Kamenica Camp in held demonstrations to protest his arrest. than capturing Karadži ć as Mladi ć is more secretive and reclusive, and is reportedly central Bosnia and Herzegovina. Karadžić was admitted to the UN guarded by a host of loyal, and possibly Deli ć pled not guilty to all charges. detention unit in The Hague on July 30, well-armed, soldiers. The trial, which commenced in July 2007, 2008, and his initial appearance before lasted for 114 days. Delić was found the court on July 31 was no doubt the Karadži ć’s trial may be a great mile- guilty, by majority, of failing to take start of what will be a long legal battle. stone for justice, but it will not be enough the necessary and reasonable measures Karadži ć declined to enter a plea and in to solve Bosnia’s complex human rights to prevent and punish the crimes of cruel accordance with the rules, after 30 days problems. The bloody war directed by treatment committed by the El Mujahed the court entered a plea of not guilty on Karadži ć and General Mladi ć left many Detachment (EMD) of ABiH. The EMD his behalf. On September 22, a motion victims in its wake. Over a decade later, came into existence as a unit of the Army to amend the first amended indictment there are still more than 130,000 displaced of the Republic of Bosnia and Herzegovina was entered by the office of the prosecu- Bosnians who are unable to return home. by virtue of an order signed by Deli ć. tor (the initial indictments were issued in There is still a great need for housing, 1995 and amended in 2000). This motion social services and economic opportuni- ties, and the fear of violence and Islamic Delić was acquitted of three other restructured the charges, and prosecutors counts of murder and cruel treatment. In hoped the streamlined indictment would terrorism is still prevalent. Despite the obstacles that remain, Karadži ć’s trial in those cases the Trial Chamber found that help speed up the trial by contributing to no superior-subordinate relationship had an efficient and expeditious presentation The Hague is a chance for Bosnia to come to terms with its past. Since its concep- existed between Deli ć and the perpetrators of the prosecution’s case. Experts and at that time, and the Chamber could not those working in the field criticized the tion in 1993 the Tribunal has indicted 161 people and convicted 56 people in connec- conclude beyond reasonable doubt that tribunal as ineffective and inefficient after Deli ć had reason to know these crimes the trial of the former Yugoslav presi- tion with the Balkan wars, and has made considerable progress toward justice for a were about to be or were committed. These dent Miloševi ć was drawn out for four alternate rulings point to the nuanced years. Miloševi ć eventually died in his cell region plagued by some of the worst violence in Europe since World War II. understanding of human rights violations, before a verdict was reached. Karadži ć’s since Deli ć neither witnessed the afore- indictment was amended to be leaner in mentioned crimes nor did he order his hopes of avoiding the strategic mistakes of soldiers to commit them. Rather, he failed the Miloševi ć trial.

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to control, monitor, and discipline his sub- In August 2008, the Trial Chamber commit genocide, and the crime against ordinates who committed the crimes. issued an indictment against Florence humanity of persecution and extermination. Hartmann, a former spokeswoman for the Nahimana and Barayagwiza were found Bosnian Serb and Bosnian Croat offi- Tribunal’s Chief Prosecutor, on two counts guilty based on their roles as members cials and war victims groups felt the sen- of contempt of the Tribunal. Hartmann of the “Comité d’Initiative” that founded tence might have been too lenient. Bosnian is alleged to have authored a book called Radio Télévision Libre des Mille Collines Serb Prime Minister, Milorad Dodik, said “Paix and Chatiment” (Peace and Punish- (“RTLM”), a radio station that broadcast the sentence showed that “justice for the ment), published in 2007, and an article virulent messages directed at Tutsis and Serb victims of the war is really unreach- published on the website of the Bosnian moderate Hutus between July 1993 and able.” These trials are politically charged, Institute in 2008, both of which disclosed July 1994. Ngeze, on the other hand, was largely because the few Bosnian Mus- information related to confidential deci- convicted based on acts committed as the lims tried by the ICTY have so far been sions of the Tribunal’s Appeals Chamber founder, owner, and editor of Kangura, a acquitted or received relatively lenient in the case of Slobodan Miloševi ć. The newspaper published from 1990 to 1995 sentences. Order states, “Florence Hartmann knew that carried hate-filled messages similar to that the information was confidential at those broadcast on RTLM. Sentence Enforcements the time disclosure was made, that the decisions from which the information was Each of the defendants appealed to the On September 15, 2008, Albania drawn were ordered to be filed confiden- Appeals Chamber, raising a number of became the seventeenth state to sign the tially, and that by her disclosure she was issues. One of the more interesting argu- agreement on enforcement of sentences revealing confidential information to the ments against the Trial Chamber judg- with the ICTY, allowing persons convicted public.” Hartmann has rejected the charges ment relied on the fact that, although before the Tribunal to serve their sentences and maintained that she was acting in the the jurisdiction of the ICTR is limited to in its prisons. Poland also recently signed public’s best interest. crimes occurring in 1994, the Trial Cham- the agreement, joining Italy, Finland, Nor- ber based its convictions for the crime of way, Sweden, Austria, France, Spain, Ger- Milan Milutinovi ć was granted tempo- direct and public incitement to genocide, in many, Denmark, the United Kingdom, rary provisional release to return to Serbia part, on acts committed prior to 1994. The Belgium, Ukraine, Portugal, Estonia, and to undergo a medical procedure from Sep- Trial Chamber had supported its finding by Slovakia — adding to the growing list of tember 10 to October 2, 2008. Milutinovi ć, defining the relevant crime as “an incho- countries that recognize the ICTY as a the President of Serbia from 1997 to 2002, ate offense that continues in time until the sanctioned authority of human rights, jus- is currently on trial together with five completion of the acts contemplated.” The tice, and international law. co-accused: Nebojša Pavković, Nikola Appellants argued that the Trial Cham- Šainovi ć, Dragoljub Ojdani ć, Vladimir ber confused the terms “inchoate” and To date, 53 persons convicted by the Lazarevi ć and Sreten Luki ć, for an alleged “continuing” in its interpretation, and the Tribunal have either served or are cur- campaign of terror and violence directed Appeals Chamber agreed. An inchoate rently serving their sentences. Three con- at Kosovo Albanians and other non-Serbs offense, according to the Appeals Cham- victed persons are awaiting transfers to living in Kosovo in 1999. All have been ber, only requires the commission of cer- one of the states to serve their sentence. charged with deportation, forcible transfer, tain acts capable of constituting a step in There are a number of cases still pending murder and the persecution of thousands the commission of another crime, regard- before the Tribunal, many of which are of Kosovo Albanians and other non-Serbs. less of whether those acts actually resulted expected to return sentencing judgments. Milutinovi ć’s temporary release is subject in the later crime. A continuing crime, on The enforcement agreement is an impor- to a number of strict conditions, including the other hand, implies an ongoing crimi- tant and practical step towards providing 24-hour surveillance of the accused by nal activity that either involves ongoing a successor nation the authority to super- Serbian authorities. elements or continues over an extended vise the imprisonment of those convicted period. Thus, although the Appeals Cham- even after the end of the mandate of the ber agreed that direct and public incitement International Cr i m i n a l Tribunal. to genocide is an inchoate offense, it held Tr i b u n a l f o r Rw a n d a that the Trial Chamber erred in considering Other Updates Prosecutor v. Nahimana, et al., that incitement to commit genocide contin- Ljubiša Petkovi ć has been found guilty Appeals Judgment, ICTR-99-52-A ues in time “until the completion of the acts contemplated.” Nevertheless, based on acts of contempt of the Tribunal and was sen- The Appeals Chamber of the Inter- tenced to four months imprisonment. that occurred in 1994, the Appeals Cham- national Criminal Tribunal for Rwanda ber found sufficient evidence to affirm the Petkovi ć refused to comply with a confi- (ICTR) issued its judgment in the Nahi- dential subpoena ordering him to appear as convictions of Nahimana and Ngeze for the mana, et al. case, better known as the crime of incitement to commit genocide. a Chamber witness in the case of Vojislav “Media Case,” on November 28, 2007. Šešelj on May 13, 2008. Šešelj, the Presi- Just over four years earlier, the ICTR Another of the many grounds raised dent of the Serbian Radical Party (SRP), Trial Chamber had convicted the three on appeal was whether hate speech could is currently being tried for crimes against accused — Ferdinand Nahimana, Jean- amount to the crime against humanity of humanity and violations of the laws or Bosco Barayagwiza and Hassan Ngeze persecution. Relying on customary inter- customs of war. — for genocide, conspiracy to commit national law prohibiting speech expressing genocide, direct and public incitement to ethnic hatred as discrimination, the Trial

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Chamber held that such speech constitutes Sp e c i a l Co u r t f o r Si e r r a Le o n e of an attack directed primarily at a civilian persecution where it reaches a particular population. Rather, the Trial Chamber con- level of gravity, regardless of whether The Prosecutor v. Moinina Fofana cluded that the attacks were directed against the speech contained a call to action. and Allieu Kondewa, Judgment, the rebels or juntas that controlled the towns The Appellants argued that, regardless SCSL-04-14-A where the attacks took place. The Appeals of whether hate speech was criminalized Chamber disagreed with this, holding that On May 28, 2006, The Special Court in domestic jurisdiction, it is not a crime the Trial Chamber “misdirected itself” by for Sierra Leone (SCSL) Appeals Cham- under customary international law and confusing the target of the attack with the ber issued its judgment in the consolidated does not fit within the definition of the purpose of the attack. Based on the factual case against Moinina Fofana and Allieu crime against humanity of persecution findings of the Trial Chamber, in particular Kondewa, increasing Fofana and Konde- because it does not lead to discrimination that the relevant attack was directed at pun- wa’s sentences of six and eight years, to in fact and is not as serious as other crimes ishing civilians who were collaborating with 15 and 20 years, respectively. Fofana and against humanity. The Appeals Chamber the rebels, the Appeals Chamber reversed Kondewa were both leading members in rejected those arguments, holding that the the lower court’s acquittals on two counts the Civil Defense Forces (CDF), Fofana crime for which the accused were con- of crimes against humanity and entered con- acting as the National Coordinator and victed was the crime against humanity of victions against both Kondewa and Fofana Director of War, and Kondewa having been persecution, not the underlying acts that for murder and inhumane acts as crimes the High Priest of the CDF. In its efforts to constituted the persecution. Thus, it did against humanity. support the presidency of Ahmed Tejan not matter whether hate speech was itself Kabbah, the CDF was responsible for a an international crime. On the issue of the The Appeals Chamber also agreed number of the atrocities that occurred dur- gravity of the crime, the Appeals Cham- with the Prosecution’s contention that the ing the civil war in Sierra Leone between ber reasoned that not every individual act Trial Chamber erred in refusing to admit 1996 and 2002. underlying the crime of persecution must evidence of sexual violence against the accused to support the charges of inhu- be of the same gravity as other crimes On August 2, 2007, the majority of the mane acts as a crime against humanity against humanity. Instead, it explained, Trial Chamber convicted both Fofana and and violence to life, health and physical or all of the underlying acts of the persecu- Kondewa of the war crimes of violence to mental well being as a war crime. The Trial tion should be considered together, taking life, health and physical or mental well- Chamber had reasoned that admitting the into account the cumulative effect of all of being of persons, specifically murder and evidence would prejudice the rights of the those acts and the context in which they cruel treatment, as well as pillage and accused because the indictment contained took place in assessing their gravity. collective punishment. The majority also no specific factual allegations concerning found Kondewa guilty of enlisting children The Appeals Chamber also reversed sexual violence, meaning that admission under the age of 15 into armed groups, many convictions based on Article 6(1) of the evidence would be inconsistent while Fofana was found not guilty of this of the ICTR Statute — which states that a with the accused’s right to be informed same charge. In addition, both Fofana and “person who planned, instigated, ordered, promptly of the charges against him. While Kondewa were acquitted of terrorism as a committed or otherwise aided and abetted the Appeals Chamber agreed that the origi- war crime and the crimes against humanity in the planning, preparation or execution nal indictment was defective with respect of murder and other inhumane acts. of a crime [within the jurisdiction of the to allegations relating to sexual violence, Tribunal] shall be individually responsible Both the Prosecution and Kondewa it also found that the Prosecution “cured” for the crime” — holding that it is inappro- appealed the Trial Chamber’s judgment on this defect by providing the accused with priate to convict an accused for a specific a number of grounds. There was no appeal timely, clear, and consistent information count under both Article 6(1) and Article by Fofana. The Appeals Chamber granted regarding the additional allegations and 6(3), which states that a superior may be four of Kondewa’s six grounds of appeal, that therefore the evidence should have held criminally responsible for the acts of reversing the convictions relating to mur- been admitted. Ultimately, this finding a subordinate “if he knew or had reason der in the Town of Talia, pillage, enlisting had no effect on the convictions of the to know that the subordinate was about to child solders, and collective punishments. accused for inhumane acts as a crime commit such acts or had done so and the The Appeals Chamber granted three of against humanity and violence to life, superior failed to take the necessary and the Prosecution’s ten grounds of appeal, health, and physical or mental well-being reasonable measures to prevent such acts or however, extending both Kondewa’s and as a war crime, but the Appeals Chamber to punish the perpetrators thereof.” Hence, Fofana’s prison sentences. concluded that the discussion of the Trial in those instances where the accused were Chamber’s error served as “guidance” to convicted under both Article 6(1) and The first of the Prosecution’s success- the Trial Chamber. Article 6(3), only the convictions under the ful grounds of appeal was that the Trial latter article were upheld on appeal. Chamber erred in acquitting the accused of Finally, the majority of the Appeals crimes against humanity on the ground that Chamber accepted the Prosecution’s On the basis of the Appeals Judg- the general requirements of the crime had argument that the Trial Chamber erred ment, the life sentences given to Nahimana not been satisfied. Specifically, the Trial in sentencing the two accused because it and Ngeze by the Trial Chamber were Chamber found that the evidence adduced considered, as a mitigating factor, that the reduced to 30 years imprisonment, whereas at trial failed to establish that the acts of CDF was fighting to support a “just cause.” Barayagwiza’s sentence was changed from the accused — namely, murder and other As an initial matter, the Appeals Chamber 35 years in prison to 32 years. inhumane acts — were committed as part noted that a convicted person’s motives

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may be considered for purposes of sentenc- to provisionally detain the accused, and disclose the material in a manner satisfac- ing, citing to the fact that other international therefore ordered the release of Lubanga. tory to the information providers, or amend criminal tribunals have used motives such At the same time, however, the Chamber or drop the charges to render the informa- as group hatred or bias as aggravating fac- agreed to suspend its order pending the tion no longer relevant to the proceedings. tors. Nevertheless, the Chamber held that Prosecution’s appeal of the June 13 deci- Both the question of Mr. Lubanga’s contin- the particular motive of “just cause” cannot sion staying the proceedings. ued detention and the Prosecution’s latest be considered a mitigating factor because request to lift the stay of proceedings are international humanitarian law specifically Throughout June and July, the Pros- pending as of this writing. removes a party’s political motive and ecution continued to take measures aimed the “justness” of its cause from consider- at lifting the confidentiality restrictions The Prosecutor v. Germain Katanga & ation. Furthermore, the Appeals Chamber imposed on the relevant exculpatory Mathieu Ngudjolo Chui explained that any motive considered as a material, the majority of which had been On September 26, 2008, Pre-Trial mitigating factor must be consistent with obtained from the United Nations. While Chamber I confirmed the majority of the the purposes of sentencing, which include: certain concessions were made by the UN charges alleged against Germain Katanga deterrence, retribution, public reproba- — for example, allowing the Trial Cham- and Mathieu Ngudjolo Chui, thereby send- tion, and rehabilitation. In the view of the ber judges themselves to view the docu- ing the case to trial before the ICC. Both Appeals Chamber, reducing a convicted ments at issue, albeit under very limited Katanga, a senior commander of the Force person’s sentence based on his political circumstances — the Chamber found the de Resistance Patriotique, and Ngudjolo motives, even where considered meritori- conditions unacceptable, holding that the Chui, a commander of the National Inte- ous, would undermine these purposes. stay would not be lifted unless at least two grationist Front, were charged with a range conditions were met: first, that the Cham- of war crimes and crimes against humanity, Justice George Gelaga King issued a ber be permitted continuing access to the including crimes involving sexual slavery dissenting opinion in which he explained relevant material, and second, that there and murder, allegedly committed during that he would not have convicted Kondewa be some “real prospect” that the accused the February 3, 2007 attack on the village on any of the eight original counts charged would be given sufficient access to any of Bogoro in the province of Ituri. The by the Prosecution, and that he would have documents that the Chamber determined cases against the two accused were joined let the Trial Chamber’s judgment against were necessary to a fair trial. on March 10, 2008. Fofana stand, as the latter did not enter an appeal. Judge King also disagreed with the On October 21, 2008, the Appeals The confirmation hearing in the Katanga Appeals Chamber’s findings with regard Chamber issued a judgment affirming the & Ngudjolo Chui case commenced on June to sentencing, arguing generally that the Trial Chamber’s decision to stay the pro- 27, 2008 and lasted two weeks. According majority of the Chamber interfered unjusti- ceedings against Lubanga, but overturning to Article 61(7) of the Rome Statute, on the fiably with the Trial Chamber’s unfettered the Trial Chamber’s conclusion that the basis of the hearing, the Pre-Trial Chamber discretion in matters of sentencing. More release of the accused was required as had to determine whether there was suf- specifically, Judge King argued that the a result of the stay. Instead, the Appeals ficient evidence to establish substantial Trial Chamber correctly considered the Chamber held, the Trial Chamber must grounds to believe that the person commit- motivations of the accused as a mitigating determine whether the continued provi- ted each of the crimes charged. In its Sep- factor, but did not, as the Appeals Chamber sional detention of the accused is warranted tember 26 decision, the Pre-Trial Chamber found, apply an inappropriate “just cause” in light of all relevant factors, including the unanimously confirmed that there were analysis. likelihood that he will appear for trial in substantial grounds to believe the two the event the stay is lifted, the possibility accused were criminally responsible for that he will obstruct or endanger future International Cr i m i n a l Co u r t the war crimes of using children in the con- proceedings in his case, and whether deten- text of international armed conflict, direct- Cases in the Situation in the tion is necessary to prevent the accused ing an attack against a civilian population, Democratic Republic of the Congo from continuing with the commission of willful killing, destruction of property, and (DRC) the charged crime or another crime within pillaging, while dismissing the charges of the statute of the Court. inhuman treatment and other outrages upon The Prosecutor v. Thomas Lubanga Dyilo In the meantime, the Prosecution once personal dignity as war crimes. In addition, As of this writing, the case against again submitted a motion before the Trial the Chamber confirmed the charges against Thomas Lubanga Dyilo continues to be Chamber requesting that the stay of pro- each of the accused relating to murder as stayed and the accused remains in the ceedings be lifted, this time proposing a a crime against humanity. The majority custody of the ICC. Lubanga’s trial was solution that seems to satisfy the Chamber’s of the Chamber, Judge Anita Ušacka dis- scheduled to begin on June 23, 2008, conditions for going forward with the trial. senting, also confirmed the charges of the but on June 13, Trial Chamber I stayed Specifically, the Prosecution indicated it sexual slavery and rape both as war crimes the proceedings due to the fact that the had secured permission to fully disclose the and crimes against humanity, but declined Prosecution was unable to release poten- relevant documents to the Trial Chamber. to confirm the charge of other inhumane tially exculpatory materials that had been Furthermore, in the event that the Chamber acts as a crime against humanity. obtained on the condition of confidential- determines a document must be turned over ity. Shortly thereafter, the Chamber held to the defense to guarantee a fair trial, the that, in light of the stay of proceedings, Prosecution stated it would seek ways to the Court could not justifiably continue

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Criticisms About the Investigation Prosecution Requests Arrest government in the north and the Christian and Prosecution of Gender-Based Warrant Against Omar Hassan and Animist rebels in the south. Others Crimes by the OTP Ahmad al-Bashir argue that a Security Council intervention would undermine the principles of com- Over the past two years, the ICC Pros- On July 14, 2008, the ICC Prosecutor bating impunity and deterrence, and that ecutor, Luis Moreno Ocampo, has faced submitted an application for a warrant of there is no real peace process in Darfur to criticism from non-governmental organi- arrest against Sudanese President Omar maintain. zations and other commentators regarding Hassan Ahmad al-Bashir. According to the Office of the Prosecutor’s (OTP) record the Prosecution, al-Bashir should be held Sudan Arrests Janjaweed Leader of investigating and prosecuting gender- criminally responsible for ten counts of Sought by ICC based crimes. The Prosecutor is required, crimes against humanity, war crimes, and under Article 54(1)(b) of the Rome Stat- genocide committed in the Darfur region of On October 13, 2008, the Govern- ute, to “ensure the effective investigation Sudan, including acts of rape as genocide. ment of Sudan arrested Ali Kushayb, a and prosecution of crimes . . . in particular As of this writing, Pre Trial Chamber I is Janjaweed militia leader charged with a where it involves sexual violence [or] gen- still reviewing the evidence to see if there leading role in attacks in west Darfur. The der violence.” However, the Prosecutor’s are reasonable grounds for believing al- ICC issued an arrest warrant for Kushayb first case arising out of the DRC situation, Bashir is responsible for the crimes alleged in February 2007. Yet Sudan has declared brought against Thomas Lubanga Dyilo, by the Prosecution and, if so, whether an its intention to try him in its own courts omitted charges for sexual violence despite arrest warrant is the appropriate means of rather than turning him over to the ICC. well-documented evidence that such crimes securing the accused’s presence at trial. On This could be seen as an attempt by the were perpetrated by Lubanga’s forces. October 16, 2008, the Chamber requested government of Sudan to bypass the ICC by that the Prosecutor submit additional mate- showing the country is “willing and able” It seems that the OTP’s investigation rials concerning confidential aspects of the to try the case on its own, thereby divest- and prosecution of gender-based crimes is request for an arrest warrant by November ing the Court of jurisdiction under the so- improving as the office develops, although 17, 2008. called “complementarity” provision of the the process still has weaknesses. The Rome Statute. more recent charges in the DRC situation The ICC has already issued two arrest — against Germain Katanga and Mathieu warrants in connection with the situation in The Sudanese government has also said Ngudjolo Chui — include charges for gen- Darfur, which was referred to the ICC by that it will consider removing from the der-based crimes. However, the charges the United Nations Security Council, act- cabinet Ahmed Haroun, state minister for based on sexual slavery in the original ing pursuant to the Rome Statute, in March humanitarian affairs, who has also been indictment were removed after two of 2005. Yet Sudan, which is not party to the indicted by the ICC. However, the govern- the Prosecution’s witnesses were initially Rome Statute, has rejected the notion that ment maintains that it will not turn him denied protection from the Registrar and the ICC may exercise jurisdiction over its over to the Court, but rather will conduct were prohibited from testifying. When the nationals. Al-Bashir has also denied the its own investigation into the allegations. Registrar changed course and accepted the basis for the crimes alleged against him witnesses into the Court’s Witness Protec- by the ICC Prosecutor, saying that mass On October 18, the Prosecutor announced tion Program, the Prosecutor reinstated the rape “does not exist” in Darfur and that he would bring to the Court charges against charges of sexual slavery as both a war the other crimes are similarly fabricated rebel commanders in Darfur for attacking crime and a crime against humanity, and and untrue. African Union peacekeepers in July 2008. added the charges of rape as a war crime and a crime against humanity. Finally, the Although much support has been Situation in the Central African most recent arrest warrant approved by expressed for the Prosecution’s move Republic (CAR) the ICC, that issued against Jean-Pierre — both by international criminal lawyers Belgian authorities arrested Jean-Pierre Bemba Gombo for crimes committed in and by Darfuris who have fled the country Bemba Gombo, the first person charged in the Central African Republic, included — Sudan has demanded that the Security connection with the situation in the CAR, the charges of rape as a war crime and Council use its authority under the Rome on May 24, 2008 pursuant to an arrest war- as a crime against humanity. While some Statute to defer the proceedings against rant issued by the ICC. He was transferred human rights groups were disappointed al-Bashir. Thus far, Sudan has succeeded to The Hague on July 3 and remains in that more gender-based charges were not in gathering the support of about half of the Court’s custody pending a hearing to included in Bemba’s arrest warrant, the the Security Council members, including confirm the charges alleged against him, Prosecutor has indicated that he intends to China, a permanent member with veto which is scheduled to commence Decem- continue investigation and to add charges power. Those supporting suspension are ber 8, 2008. where appropriate. supposedly concerned with how the indictment will affect the peace process between Bemba is a DRC national, however he Darfuri rebels and the central government. is accused of crimes committed in the CAR In addition, Assistant Secretary-General through his role as the leader of a rebel for Peacekeeping Edmond Mulet recently group known as the Mouvement de Libera- told the Security Council that the arrest tion du Congo (MLC). Bemba allegedly warrant had the potential to derail the 2005 established the MLC in 1998 in Kisangani, peace agreement between Sudan’s Muslim DRC, and then directed its efforts to the 48

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CAR in 2001 to help the incumbent presi- The participation of victims as civil par- 250 Cambodian staff had their paychecks dent of CAR counter one of several coup ties also brings up new issues for the court withheld. Given the hybrid nature of the d’états. The MLC intervened again in to face, particularly in the area of sexual tribunal with a system that integrates Cam- 2002 through 2003, committing large-scale violence. In October 2008, the first civil bodian and international workers, the func- crimes against the CAR civilian population party complaint for gender-based crimes tioning of the ECCC is threatened by the both times. Bemba is charged with five came before the ECCC. The application possibility that Cambodian workers will counts of war crimes and three counts of requested that the court investigate crimes leave their employment if they remain crimes against humanity allegedly com- of sexual violence and include those claims unpaid. Although the UN is attempting to mitted in the territory of the CAR from in the prosecution of Khmer Rouge lead- investigate the complaints, the Cambodian October 25, 2002 to March 15, 2003. ers and their subordinates. Many hope that government asserts that it holds jurisdic- these investigations could empower other tion over these allegations. Following his role as leader of the victims of sexual violence to demand justice MLC, Bemba returned to the DRC and for the crimes perpetrated against them. The tension over defining the proper became a vice president in that country’s authority to review the recurring com- transitional government from July 2003 to Despite the challenges in allowing vic- plaints of corruption and kickbacks is December 2006. He also ran for president tims to participate in the legal proceedings, symptomatic of the setbacks of the ECCC. in the DRC election, receiving the second the court has not abandoned its cause. In its October 2008 update on develop- highest number of votes. Although he was Instead, it continues to wrestle with the ments in the ECCC, the Open Society elected a Senator in January 2007, he was difficulties in an attempt to achieve justice Institute’s Justice Initiative noted problems forced to flee the DRC two months later for each and every victim. of inadequate transparency and administra- after an outbreak of fighting involving his tive divisions stemming from corruption personal guard. Corruption Stalls Progress allegations and recommended that donors in the ECCC condition funding on “the meaningful reso- lution of longstanding concerns about per- Th e Extraordinary Ch a m b e r s i n Progress in prosecuting former mem- ceived corruption at the ECCC.” t h e Co u r t s o f Ca m b o d i a bers of the Khmer Rouge has been slow as Victim Participation in the ECCC the Extraordinary Chambers in the Courts Given conflicts over jurisdiction, no of Cambodia (ECCC) have experienced an progress has been made towards resolv- The Extraordinary Chamber in the increase in criticism during the last year. In ing corruption allegations. Nonetheless, Courts of Cambodia (ECCC) is pioneering particular, the ECCC has been charged by Australia has recently announced its allo- a new path in international criminal law by funding sources, the media, and the inter- cation of nearly $3.5 million to support the allowing victims to participate as civil par- national community with pervasive corrup- ECCC. Despite widespread fears of cor- ties in the legal proceedings against former tion that has resulted in profound delays in ruption within the ECCC, the international Khmer Rouge leaders. Under the Internal the delivery of justice. community and donors remain committed Rules, civil parties have the right to legal to the fair and timely completion of the representation, to participate in pre-trial The ECCC has made some notable prog- trials, keeping in mind that the old age and investigation, to call witnesses, to ques- ress in the way of preliminary decisions health conditions of many of the accused tion the accused, and to claim reparations. since its inception in 2006, including its require that justice be rendered before it is However, granting victims these rights first public hearing, on the pretrial detention too late. HRB poses significant challenges to an already of Kaing Guek Eav (also known as Duch), under-resourced court. who commanded the infamous Khmer Shaleen Brunsdale, a J.D. candidate at the Rouge torture center, Toul Sleng. In spite of Washington College of Law, covers the ICTY In facing these challenges, the court this progress and the arrests of high profile for the Human Rights Brief. attempts to balance the rights of the indi- officials like Khieu Samphan, who served vidual victims with judicial efficiency and as head of state during the Khmer Rouge Rita Espinoza, a J.D. candidate at the Wash- economy. One major problem is the sheer era, the Chambers have been plagued with ington College of Law, wrote the Prosecutor number of victims applying for civil party various setbacks and have yet to hold their v. Nahimana, et al. summary for the Human standing. As of October 9, 2008, the court first trial. With a timeline to wrap up opera- Rights Brief. has processed and accepted only 8 of the tions in Cambodia by 2010, the ECCC must Sarah Venti, a J.D. candidate at the Wash- more than 1,200 applications received. act to expeditiously try those charged. Even with the small number of civil par- ington College of Law, wrote the Prosecutor ties currently participating, the court has In July 2008, the United Nations (UN) v. Moinina Fofana and Allieu Kondewa sum- already experienced delays resulting from received a number of complaints that kick- mary for the Human Rights Brief. their involvement in pre-trial hearings. backs were being paid by the ECCC’s Katherine Anne Cleary, Assistant Direc- Cambodian staff in order to retain their tor of the War Crimes Research Office at Furthermore, while the court gives civil positions. Reportedly a common practice the Washington College of Law, edited the parties the right to legal representation, in other areas of government work in Prosecutor v. Nahimana summary, the Pros- many are unable to afford it on their own. Cambodia, such corruption caused many ecutor v. Moinina Fofana summary, and The court has attempted to address this international funding sources to withhold the ICC and ECCC Updates for the Human challenge by requesting funds in the 2008– funds while the UN responded to the Rights Brief. 2009 budget that would provide a legal charges. As a result, the approximately team to unrepresented civil parties. 49 http://digitalcommons.wcl.american.edu/hrbrief/vol16/iss1/8 6