OTP Briefing

Issue #131 12 September 1 October 2012

NEWS
Prosecutor Bensouda travels to Sweden for official visit
17 18 September Prosecutor Bensouda travelled to Stockholm, at the invitation of the Swedish Ministry of Foreign Affairs, for meetings with Government representatives as well as a lecture at the Swedish Institute for International Affairs. During the visit, Prosecutor Bensouda met with Ms. Birgitta Ohlsson, Minister for EU Affairs, as well as Mr. Frank Belfrage, State Secretary for Foreign Affairs. The Prosecutor thanked the Swedish Government for its commitment and the consistent support for the Court and the Office of the Prosecutor, both at the political and operational level. Issues discussed during these meetings included State cooperation, complementarity, sexual and gender based violence, and other matters of mutual concern. Prosecutor Bensouda also met with senior officials of the Ministry of Foreign Affairs, including Mr. Bjrn Lyrvall, Director General for Political Affairs, and Mr. Anders Rnquist, Director General for Legal Affairs; the Ministry of Justice, including Ms. Anna Carin Svensson, Director General for International Affairs; and Mr. Anders Perklev, the Swedish Prosecutor General. Prosecutor Bensouda concluded the visit with a key note speech at a seminar organised by the Swedish Institute for International Affairs, addressing some challenges and prospects for the Office of the Prosecutor in which she said: The system established by the Rome Statute is based on the concept of independent judicial activity. Without its independence, the Court risks losing its value. She also indicated that any additional [budget] cuts will have considerable impacts on Offices capacity to do its work and fulfill its mandate given by States.

Prosecutors mission to New York in the margins of the High Level Rule of Law Event of the UN General Assembly
20 25 September During her trip, the Prosecutor participated in High level Breakfast Meeting on Protection of Education During Insecurity and Conflict: Legal Response, organized by Education Above All. Prosecutor Bensouda announced the OTPs decision to develop a policy paper on children, which will include the matter of education. She also announced the organization of a one day strategic meeting on Sharing educational experiences to promote and increase education for peace and justice on 18 October in The Hague together with the UN mandated University for Peace Center. The meeting will allow for an exchange of strategies, best practices and content proposals between interested organizations. This information will then be compiled and shared with Ministries of

Education of the 121 States Parties to the Rome Statute, for their consideration and possible inclusion in their national curricula systems. In the margins of the meeting Prosecutor Bensouda had bilateral exchanges with Her Highness Sheikha Moza bint Nasser of Qatar, UNESCO Special envoy for Basic and Higher Education. Prosecutor Bensouda participated in a High Level side event organized by UN Women and Finland titled Women access to justice on the margins of the High level Rule of Law Event. The OTP also participated in the discussion on Preventing sexual and gender based crimes in conflict and securing justice for survivors hosted by William Hague, UK Foreign Minister, UN Women, the Nobel Womens Initiative and Special Representative to the Secretary General, Zainab Bangura. The Prosecutor also participated in an event entitled International Criminal Court: A New Approach to International Relations, organized by the American Society of International Law and the Council on Foreign Relations, where she stated the Rome Statute offers a solution, creating global governance without a global government but with international law and courts, a new paradigm in international relations: utilizing law as a global tool to promote peace and international security and to put an end to impunity. The Prosecutor also met with the Advisory Board of the CICC and met with the members of Nobel Womens Initiative and International Campaign to Stop Rape & Gender Violence in Conflict.

The Prosecutor delivers the 22nd Diplomatic Briefing

19 September The Prosecutor delivered the 22nd Diplomatic briefing on behalf of the OTP. She said: the list of pressing issues for me as Prosecutor is long, but one important goal I have set is to ensure that the Office delivers high quality and efficient investigations and prosecutions, which are at the heart of what my Office does. Prosecutor Bensouda further asserted that With the necessary support from the States Parties, in the coming months and years, the Office of the Prosecutor will continue to improve the quality of its prosecutions. The decision of Trial Chamber I sentencing Thomas Lubanga to 14 years imprisonment, as well as the decision on the reparations principles and proceedings , are a great incentive to continue our prosecution in our other cases.

OTP Activities
OVERVIEW
7 situations under investigation 15 cases in relation to 24 persons Arrest warrants outstanding against 12 individuals 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 and Nigeria (phase 2b), Colombia, Georgia and Guinea (phase 3), and Mali (phase 4)

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. The Prosecutor v Germain Katanga and 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: Defence case presentation concluded, closing oral statements took place 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 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

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 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 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

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) 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)
21 September Mr Dennis Ole Itumbi, a Kenyan journalist, requested that Pre Trial Chamber II rule on the legality of Mr. Itumbis arrest in the context of an investigation instigated on the initiative of the Office of the Prosecutor (OTP) or, alternatively, in connection with proceedings at the ICC. Mr. Itumbi averred that his submission was a preliminary step to requesting compensation under article 85(1) of the Rome Statute. On 22 March 2012, Mr. Itumbi was arrested by Kenyan law enforcement officers. Mr. Itumbi noted in his September 2012 submission that in October 2011 the former Prosecutor, Mr. Luis Moreno Ocampo was quoted in the media warning social media users who were interfering with witnesses that the Court was investigating them, and they could be held accountable before the ICC. Mr. Itumbi also cited a March 2012 Kenyan newspaper article which stated, Luis Moreno Ocampo has focused his lenses on the Kenyan case writing a letter to Attorney General over intimidation of witnesses. Mr. Itumbis application asked the Pre Trial Chamber to rule that the Applicant was illegally arrested in the context of an investigation instigated on the initiative of the OTP or, otherwise, in connection with ICC proceedings in general. On 25 September 2012, Pre Trial Chamber II dismissed Mr Itumbis application in limine. The Chamber referred to articles 61((9) and 64(4) of the Rome Statute and contended that Trial Chamber V is responsible for the conduct of proceedings related to the two Kenya cases before the Trial Chamber. The Prosecutor v. William Samoei Ruto and Joshua Arap Sang 13 September Trial Chamber V rejected the request by the Civil Society Organization Network to file an amicus curiae brief, and similarly rejected the request by the Centre for Legal Empowerment (Kituo Cha Sheria) to submit an amicus curiae brief on the issue of victim participation in trial proceedings against the four Accused. The Chamber noted that it has already received from the Registry a Draft Protocol on the application process for victim participation and reparations at the Trial stage. The Chamber stated that it does not consider that the submissions of the CSO Network and Kituo would assist at this stage with the proper determination of issues related to the victims application process and the modalities of their participation. The Prosecutor v. Francis Kirimi Muthaura and Uhuru Muigai Kenyatta 12 September Trial Chamber V rejected the Request by the Kenyatta Defence Team to permanently reclassify, as a confidential document, Annex D to the Prosecutions Submission of the updated Document Containing the Charges (DCC). Annex D comprises a chart identifying the issues in dispute between the parties in relation to the prosecution s proposed updated document containing the charges. It includes the parties submissions on each of these issues. Annex D was filed as a public redacted document on 24 August 2012 with the relevant redactions masking the names of individuals whose identities were also redacted in the Pre Trial Chamber s Confirmation Decision. On 27 August 2012, in response to an urgent email request of the defence, the Chamber ordered the Registry to temporarily remove Annex D from the Court s website and disable public access to it pending a decision by the Chamber on its reclassification. The Defence submitted that Annex D contains detailed submissions on evidential issues and that, given the heightened media attention on the Kenya cases, a public filing of the observation chart could contaminate and/or influence potential witness testimony. After considering the matter, pursuant to Regulation 23 bis{3), the Chamber found that there was no basis for this classification as the documents do not appear to disclose any confidential or sensitive material. Accordingly, the Chamber rejected the Kenya Defence Request to permanently reclassify Annex D as confidential, and ordered that these documents be reclassified as public documents, subject to any limited redactions the parties may request. 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.

14 September Pre Trial Chamber I ordered the convening of a hearing on 9 and 10 October on the admissibility challenge in the case of Saif Al Islam Gaddafi. It decided that the Libyan authorities do not need to present a Reply in writing and called upon them to address the Chamber orally. The Prosecution was also called upon to make oral submissions. 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 postponed to date yet to be set

III. Arrests Cooperation

12 PERSONS SOUGHT BY THE COURT

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

IV. Other Co operation

1 October Prosecutor Bensouda participated in a Workshop on cooperation organized by the Royal Norwegian Embassy and the Court at the seat of the Court, in the context of the HWG cooperation facilitation. The purpose of the workshop was to discuss issues of cooperation with the Court with relevant States and international organizations representatives, with a special focus on the issue of identification, freezing and seizure of assets. The Prosecutor noted that although cooperation with the Court is generally forthcoming, great challenges remain, notably regarding the execution of outstanding arrest warrants, the existence of domestic procedures available for the processing of the Courts requests, as well as requests beyond the specific scope of Part 9 of the Rome Statute, such as relating to issuance of emergency visas to facilitate access to witnesses for Court officials. 26 September The Prosecutor briefed the 19th session of the Committee on Budget and Finance regarding the OTP strategy, its goals for the coming years, its assumptions for 2013, the ongoing efficiency gains and budget evolution from 2012 to 2013, as well as the impacts of the 2012 budget cuts on the OTP activities. 20 September Prosecutor Bensouda gave a speech at the UPEACE The Hague Inaugural Conference Peace for Humanity in the 21st century titled Just Peace: Prosecution of War Crimes and Peace building. Prosecutor Bensouda stated: The international community has put in place some clear divisions of responsibility. The UN Security Council is in charge of peace and security. The ICC is doing justice The policy of the Office is to pursue its independent mandate to investigate and prosecute those few most responsible, and to do so in a manner that respects the mandates of others and seeks to maximize the positive impact of the joint efforts of all. 19 September The UN Security Council discussed the violation of rights of children by armed groups and adopted a resolution stating its readiness to impose sanctions against parties that persistently violated the rights of children in armed conflict, strongly condemning their recruitment, killing, maiming, sexual abuse, abduction and denial of aid, as well as attacks on schools and hospitals. Adopting resolution 2068 (2012) by a vote of 11 in favour, to none against with 4 abstentions (Azerbaijan, China, Pakistan, Russian Federation), the Council expressed deep concern that certain perpetrators persisted in committing violations, and called on Member States to bring them to justice through national judicial systems and, where applicable, international mechanisms. The representative of Guatemala said: The Council must reaffirm its willingness to act, while also emphasizing State responsibility to end impunity and prosecute the perpetrators. It must be ensured that States developed national legislation that penalized the crimes via their national institutions, or the cases must be referred to international tribunals whereas Germany indicated the consequent release of tens of thousands of child soldiers and the recent convictions of Thomas Lubanga and Charles Taylor were significant achievements in the protection of the rights of children in armed conflict. 19 September The UN General Assembly expressed support for the activities of the Court in the Declaration of the High level Meeting of the General Assembly on the Rule of Law at the National and International Levels, which states: We recognize the role of the ICC in a multilateral system that aims to end impunity and establish the rule of law, and in this respect, we welcome the States that have become parties to the Rome Statute of the ICC, and call upon all States that are not yet parties to the Statute to consider ratifying or acceding to it, and emphasize the importance of cooperation with the Court. 14 September Ahead of a High Level meeting in the General Assembly, UN High Commissioner for Human Rights Navi Pillay called on all UN Member States to pledge that they will work to strengthen the rule of law, in their countries and internationally, in line with international human rights law and standards. The principle of accountability must also take centre stage in any discussions on the rule of law. Without accountability, human rights are denied, crime flourishes, and impunity persists, undermining the prospects for reconciliation in the aftermath of conflict or gross violations of human rightsStates should find ways to effectively meet their obligations to grant remedies and reparations to victims of human rights violations and crimes, with special consideration for groups most affected by these acts and those who have traditionally been excluded from or marginalized in reparations programmes, such as victims of sexual and gender based violence, she said. 13 September At the UN 128th Plenary Meeting of the General Assembly, Mr. Thomas Mayr Harting, Head of the Delegation of the European Union to the United Nations, delivered a statement expressing support to ICC in the peace vs. justice debate: Regarding International law, we stress the need for mediators to act strictly within the established normative framework. For example, when it comes to inclusivity, we see that contacts of UN mediators with actors that have been indicted by the ICC are to be limited essential contact only, for example to what is required in order to save lives. When it comes to judicial processes, we recall the previous reports of the Secretary General which established that Mediators should leave justice to follow its course. The representative of France, in a similar

line of thought, stated: now that the International Criminal Court has been established, mediators should make the international legal position clear to the parties. They should understand that, if the jurisdiction of the International Criminal Court is established in a particular situation, then, as an independent judicial body, the Court will proceed to deal with it in accordance with the relevant provisions of the Rome Statute and the process of justice will take its course. 13 September The Secretary General of the Dutch Ministry of Foreign Affairs, Rene Jones Bos, visited the ICC. During her visit, Ms Jones Bos met with ICC President Sang Hyun Song, Prosecutor Fatou Bensouda and Registrar Silvana Arbia. The Prosecutor thanked the Netherlands for its consistent and vigorous support and Jones Bos stated that the Netherlands would continue its support to the Court.

V. Upcoming Events October

89 The Prosecutor participates in the 7th Annual Conference and Annual General Meeting of the African Prosecutors Association (APA), Windhoek 15 The Prosecutor travels to Japan for government meetings 16 17 The OTP participates in the UNSC open debate meeting on peace and justice and the role of the ICC, New York 18 Together with UPEACE Center The Hague, the OTP organizes a strategic meeting on Sharing educational experiences to promote and increase education for peace and justice, The Hague 25 26 27 28 19 10 11 The Prosecutor attends the ISS seminar titled Setting the Record Straight: the ICCs New Prosecutor Responds to African Concerns and meets with government officials, Pretoria 12 13 14

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24 The Prosecutor participates in a seminar on gender issues organized by the Cyprus embassy, The Hague

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30 The Prosecutor participates in the Annual Conference organized by International Association of Prosecutors (IAP), Bangkok

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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