Академический Документы
Профессиональный Документы
Культура Документы
Mbarushimana’s surrender process ‐ impact on demobilization of armed groups committing massive crimes in the Kivus
20 October ‐ Mr. Mbarushimana appeared before the French jurisdiction on Wednesday 20 October. The decision on his
release was postponed to Wednesday 27 October. The French Court will then give its decision on Mr. Mbarushimana’s request
for release and will hear arguments from his Defense on why he should not be surrendered to the ICC.
The Rwandan National Commission for the Fight against Genocide (CNLG) welcomed the arrest: “It is a positive development.
We hope justice will be delivered. It is high time the international community took its responsibility.”
At the Council of Europe, UN Secretary‐General Ban Ki‐Moon stated: “We work in close partnership with national and
international courts and tribunals all over the world, including the European Court of Human Rights and the ICC. […] Without strong
interventions from justice, we will never stop the human rights violations that are being committed in the East of the DRC, and in
particular the use of rape as a weapon of war […]. If the national courts cannot take care of these crimes, then the international community
needs to intervene, eventually by the intermediary of the ICC”.
.
The Office hopes that the arrest of Mbarushimana, its continuing investigations into massive violence in the Kivus together
with the arrests of Ignace Murwanashyaka and Straton Musoni by Germany in November 2009 and the arrest of Mai Mai Chef
Mayele in the DRC for his alleged participation with the FDLR in the Walikale gang rapes is sending a signal to potential
perpetrators. According to ICG report: “In the past, leaders of armed groups were led to believe that they could operate safely from
comfortable Western capitals. The ICC and the governments of Germany and France demonstrated clearly that it is not possible any more.”
The OTP intends to make all necessary efforts to maximize the impact of these arrests on the ground and foster demobilization
of FDLR combatants and their repatriation. The information collected by the OTP demonstrates that the leadership of the
FDLR is keeping its foot soldiers “hostage”, making them believe that any defector would be arrested and killed by Rwanda
and leaving them with no other option than fighting in the bush. The OTP is on the process of briefing all relevant
stakeholders on such information. On this ICG suggested that “Those [FDLR military leaders] who accept to leave the FDLR could
be relocated in a western province of the Congo in exchange for disarmament, rather than accept immediate repatriation to Rwanda”.
The Prosecution is ready to start the Bemba trial, scheduled for 22 November after Judges rejected Defense appeal.
19 October ‐ The Appeals Chamber confirmed the 24 June decision of Trial Chamber III and dismissed Jean‐Pierre Bemba
Gombo’s appeal against this decision. This judgment confirms that the case against Mr. Bemba is admissible.
The trial is now scheduled to start on 22 November; the Prosecution is ready. The case against Mr. Bemba is the first case
before the ICC in which command responsibility is invoked for allegations of sexual and gender crimes and the first in which
such sexual allegations outnumber killings. It can also have a tremendous preventative impact by reminding commanders of
their responsibility for the conduct of their subordinates.
Continues page 5
I. Investigations and Prosecutions
Over the week, the OTP presented 12 filings in the various cases and conducted 6 missions in 5 countries.
I.1. Situation in the Democratic Republic of the Congo (DRC)
This situation was referred by the DRC in April 2004. The OTP opened its investigation in June 2004, focusing on Ituri where the most
serious crimes had been committed by the main armed groups. Four arrest warrants have been issued against Thomas Lubanga Dyilo and
Bosco Ntaganda, leaders of the UPC, and Germain Katanga and Mathieu Ngudjolo Chui, leaders of FNI and FRPI. The trial of Thomas
Lubanga Dyilo began on 26 January 2009. The trial of Katanga and Ngudjolo Chui began on 24 November 2009. Bosco Ntaganda is at large.
In September 2008, the OTP announced the start of its investigation into alleged crimes in the Kivus. On 28 September 2010 the judges issued
an arrest warrant under seal against Callixte Mbarushimana, Executive Secretary of the FDLR. He was arrested on 11 October in Paris.
18 October ‐ A platform of local human rights organizations in the Kivus denounced the control of Bosco Ntaganda’s CNDP
troops over large parts of North Kivu and warned that recent defections of troops controlled by Ntaganda from the FARDC
might trigger another conflict in the region. Meanwhile, Bosco Ntaganda refuted through his lawyer all allegations of being
involved in the assassination of his opponents within the CNDP as claimed by HRW and others.
I.2. Situation in Uganda
This situation was referred by Uganda in January 2004. The OTP opened its investigation in July 2004. Five arrest warrants have been issued
against top leaders of the Lord’s Resistance Army (LRA): Joseph Kony, Vincent Otti (allegedly killed in 2007 on order of Kony), Okot
Odhiambo, Raska Lukwiya (killed on 12 August 2006, whose arrest warrant has been withdrawn), and Dominic Ongwen. These arrest
warrants are outstanding. Since early 2008, the LRA is reported to have killed more than 1,500, abducted more than 2,250 and displaced well
over 300,000 in DRC alone. In addition, over the same period, more than 120,000 people have been displaced, and more than 250 people
killed by the LRA in Southern Sudan and the Central African Republic.
12 October ‐ HRW called for US action on the LRA: “there is no better case for the humanitarian use of force than the urgent need to
arrest Joseph Kony, ruthless leader of the LRA, and protect the civilians who are his prey. […] Arresting Kony would reaffirm that mass
murder cannot be committed with impunity.”
20 October ‐ Youssef Mahmoud, Special Representative of the Secretary‐General and Head of MINURCAT expressed concern
at the security situation in North Eastern CAR, describing the 10 October pillaging of Birao (from which MINURCAT is due to
begin its withdrawal on 21 October) by 40 to 50 men affiliated with the LRA. 19 people were kidnapped and women were
sexually assaulted during the attack. He echoed the call by the UN Secretary General in his 14 October report for UN Member
States to provide assistance to the CAR government to ensure there is no gap between the departure of the Mission and the
further deployment of trained and equipped national forces in critical areas.
I.3. Situation in Darfur, the Sudan
This situation was referred by the UN Security Council in March 2005. The OTP opened its investigation in June 2005. Three arrest warrants
have been issued, against Ahmad Harun and Ali Kushayb, and against Omar Al Bashir, which are outstanding. Also three summons to
appear have been issued, against Bahar Idriss Abu Garda and against Abdallah Banda Abaker Nourain and Saleh Mohammed Jerbo Jamus.
On 12 July, Pre‐Trial Chamber I issued a second warrant of arrest against Omar Al Bashir for three counts of genocide committed against the
Fur, Masalit and Zaghawa ethnic groups: genocide by killing, genocide by causing serious bodily or mental harm and genocide by
deliberately inflicting on each target group conditions of life calculated to bring about their physical destruction.Abu Garda voluntarily
appeared before the Court pursuant to a summons. The confirmation of charges hearing was held on 19‐30 October 2009. On 8 February
2010 the Pre‐Trial Chamber issued a decision declining to confirm the charges. The OTP requested leave to appeal this decision on 15 March
and this was denied by the PTC on 23 April. The OTP will present additional evidence. On 25 May the PTC Chamber issued its ‘Decision
Page: 2 / 6
informing the United Nations Security Council about the lack of cooperation by the Republic of the Sudan’ in the case against Harun &
Kushayb. On 17 June, Abdallah Banda Abaker Nourain and Saleh Mohammed Jerbo Jamus appeared voluntary before the ICC, to answer
charges of war crimes for their roles in the 2007 attack against African Union peacekeepers in Haskanita. The Pre‐Trial Chamber set the
confirmation of charges hearing for Banda and Jerbo for 8 December 2010.
22 October ‐ Pre‐Trial Chamber I decided to reschedule the Banda and Jerbo confirmation hearing to 8 December, in light of
developments in the composition of Chambers, and in the Court schedule, as well as due to lack of available courtrooms. On
19 October, the Prosecution and Defence for Banda and Jerbo made a joint filing before the Chamber informing the Judges of
the agreement between the parties on the facts, which may allow for a shortened confirmation hearing if the Judges so decide.
The Judges also decided that “should the suspects intend to waive their right to be present at the confirmation hearing according to rule
124 of the Rules, the written request to the Chamber must be submitted no later than Monday 8 November”.
I.4. Situation in the Central African Republic (CAR)
This situation was referred by the CAR in December 2004. The OTP opened its investigation in May 2007. One arrest warrant has been
issued against Jean‐Pierre Bemba Gombo for crimes committed in 2002‐2003. The confirmation of charges hearing was held on 12‐15 January
2009. On 15 June 2009, Pre‐Trial Chamber II rendered its confirmation of charges decision. On 18 September, the case was referred to Trial
Chamber III. In parallel, the Office continues to monitor allegations of crimes committed since the end of 2005. On 30 August and 24
September Trial Chamber III held status conferences devoted to preparations for the trial, for which a commencement date is yet to be set.
I.5. Kenya
The Office made its examination of the post‐election violence of December 2007‐January 2008 public in February 2008. On
9 July 2009, the African Union Panel of Eminent African Personalities, chaired by Kofi Annan, announced the submission to the OTP of a
sealed envelope containing a list of persons allegedly implicated and supporting materials previously entrusted to Mr. Annan by the Waki
Commission. On 5 November the Prosecutor informed President Kibaki and Prime Minister Odinga of his view that crimes against
humanity had been committed and of his duty, in the absence of national proceedings, to act. Both the President and the Prime Minister
committed to cooperate with the Court. On 26 November the Prosecutor requested authorization from Pre‐Trial Chamber II to open an
investigation, noting that: 1,220 persons had been killed; hundreds raped, with thousands more unreported; 350,000 people were forcibly
displaced; and 3,561 injured as part of a widespread and systematic attack against civilians. On 31 March the Pre‐Trial Chamber authorized
the Prosecutor to commence an investigation covering alleged crimes against humanity committed between 1 June 2005 and 26 November
2009. The Prosecutor made his first visit to Kenya since the beginning of the investigation on 8‐12 May. The Prosecution has announced that
in the course of 2010, it will present two cases against 2 or 3 individuals alleged to be most responsible in accordance with the evidence.
25 October ‐ 23 African civil society organizations have issued a joint petition calling on President Kibaki and Prime Minister
Odinga to prevent Sudanese President Al Bashir from visiting Kenya, citing the International Crimes Act and Section 2(6) of
the Constitution. The civil society organizations emphasized that “a visit by Al‐Bashir would run counter to Kenyaʹs commitment to
the ICC. It would also send damaging signals to victims of mass atrocity in Darfur and undermine Kenyaʹs credibility on issues of justice.”
II. Preliminary Examinations
DRAFT POLICY PAPER ON PRELIMINARY EXAMINATIONS: In order to provide additional time for comments and
feedback, the deadline for submissions has been extended to 1st December.
Statistics on Article 15 Communications and other preliminary examination activities.
A preliminary examination is the first phase of the Office of the Prosecutor activities, in order to assess if an investigation should be opened.
It is a phase during which the Office first assesses the jurisdiction of the Court, whether crimes falling under the ICC jurisdiction may have
been, or are possibly being, committed in a given situation; if the conditions are met, whether genuine investigations and prosecutions are
being carried out by the competent authorities in relation to these crimes; and, as a third step, whether the possible opening of an
investigation by the Prosecutor would not go against the interests of justice. During this phase, and in accordance with Article 15, the Office
proactively evaluates all information on alleged crimes from multiple sources, including “communications” from individuals and parties
concerned. The triggering of a preliminary examination does not imply that an investigation will be opened.
Page: 3 / 6
II.1. Afghanistan
The Office made its examination public in 2007. It examines alleged crimes within the jurisdiction of the Court by all actors involved. The
OTP met outside Afghanistan with Afghan officials and organizations. The OTP sent requests for information to the Government of
Afghanistan and has not yet received an answer.
II.2. Colombia
The Office made its examination public in 2006. It examines alleged crimes within the jurisdiction of the Court and
investigations/proceedings conducted in Colombia against the allegedly most serious perpetrators, paramilitary leaders, politicians, guerrilla
leaders and military personnel. The Office is also analysing allegations of international networks supporting armed groups committing
crimes in Colombia.
20 October ‐ At the NGO roundtable, the OTP held a session concerning complementarity within the preliminary examination
of the Colombia situation, with panellists commenting on the response of Colombian authorities to fighting impunity, with a
focus on Justice and Peace Law proceedings. Some participants claimed that the high level of impunity in Columbia has not
been improved by Justice and Peace Law proceedings, pointing to the few resulting convictions and the stalled proceedings
following the extradition of paramilitary leaders to the United States to face drug charges. The extradition, others argued, does
not grant impunity as many of the leaders have been sentenced to around 30 years in prison, and Colombian prosecutors have
been given access to them. Other participants argued that proceedings outside the Justice and Peace scheme are hindered by a
lack of security for witnesses, victims and prosecutors. The notion that Colombian proceedings are genuine, albeit some fo
them inefficient, was also raised, lending credence to the good faith of the Colombian government.
II.3. Georgia
The Office made its examination public on 14 August 2008. The Georgian Minister of Justice visited the OTP. Russia, a State not Party to the
Statute, has sent 3,817 communications to the OTP. The Prosecutor requested information from the Governments of Russia and Georgia on
27 August 2008. Both the Russian and Georgian authorities responded. The Office conducted a visit to Georgia in November 2008 and to
Russia in March 2010. A second mission to Georgia was conducted in June 2010.
II.4. Palestine
On 22 January 2009, the Palestinian National Authority lodged a declaration with the Registrar under Article 12(3) of the Rome Statute
which allows States not party to the Statute to accept the Court’s jurisdiction. The OTP will examine issues related to its jurisdiction: first
whether the declaration accepting the exercise of jurisdiction by the Court meets statutory requirements; and second whether crimes within
the Court’s jurisdiction have been committed. The Office will also consider whether there are national proceedings in relation to alleged
crimes. A delegation from the Palestinian National Authority, and Representatives of the Arab League visited the Court on 15‐16 October
2009 to present a report in support of the PNA’s ability to delegate its jurisdiction to the ICC. On 11 January, the OTP sent a letter
summarizing its activities to the United Nations at their request. On 3 May, the OTP published a “Summary of submissions on whether the
declaration lodged by the Palestinian National Authority meets statutory requirements.” The OTP has not made any determination on the
issue.
20 October ‐ A military police investigation of senior army officers is underway for authorizing an air strike on 5 January 2009
during Operation Cast Lead, in the neighbourhood of Zeitun in Gaza City, which killed 21 civilians, despite possibly receiving
warnings of civilian presence in the area prior to the strikes. According to the Fact Finding Mission appointed by the Human
Rights Council, this incident was one of the most grave breaches of international humanitarian law amounting to war crimes.
A decision on whether or not to charge the officers is yet to be made.
20 October ‐ In the context of the NGO roundtable, the OTP held a thematic session concerning the Palestine situation.
Representatives of NGOs, professional associations and academic institutions presented their arguments on whether the
declaration lodged by the Palestinian National Authority under article 12(3) meets statutory requirements. Some discussants
emphasized that since Palestine does not fulfil the requirements of statehood under general international law, a declaration
would be a violation of the explicit terms of the Statute; this argument was countered with a teleological and functional
interpretation of the Rome Statute. Others said that since the notion of State is one of variable geometry, it should be
interpreted in accordance with the object and purpose of the Statute.
Page: 4 / 6
II.5. Côte d’Ivoire
The Court has jurisdiction over the situation in Côte d’Ivoire by virtue of an Article 12(3) declaration submitted by the Ivorian Government
on 1 October 2003. The declaration accepts the jurisdiction of the Court as of 19 September 2002. The most serious crimes, including alleged
widespread sexual violence, were committed in 2002‐2005. On 17‐18 July 2009, high‐level representatives of the OTP visited Abidjan.
14 October ‐ Presidential candidate Henri Konan Bédié declared that after the elections (scheduled for 31 October 2010),
amnesty laws in the country should not apply to serious international crimes, which should be investigated and prosecuted.
19 October ‐ Regarding upcoming elections, such as Guinea and Côte d’Ivoire, Prosecutor Moreno‐Ocampo stated: “We have to
prevent crimes. The case of Kenya is a strong signal that massive violence during elections is a ticket to the Court in The Hague. This
message is valid for Kenya, Guinea and Côte d’Ivoire on the short run, but also for the other countries where there is a practice of accessing
to power through violence. The example of Kenya shows that if crimes are committed, the leaders who are responsible for these crimes will
be judged. We had various missions to Guinea and we are planning to go to Côte d’Ivoire. I am sure leaders know that we are watching
them […] One of my main objectives is to avoid that crimes against humanity are committed during elections anywhere in the world”.
II.6. Guinea
The Office made its examination of the situation in Guinea public on 14 October 2009. Guinea is a State Party to the Rome Statute since 14
July 2003 and, as such, the ICC has jurisdiction over war crimes, crimes against humanity and genocide possibly committed in the territory
of Guinea or by nationals of Guinea, including killings of civilians and sexual violence. The Office has taken note of serious allegations
surrounding the events of 28 September 2009 in Conakry in accordance with Article 15 of the Statute. In January 2010, OTP high level
representatives held consultations with President Compaore of Burkina Faso, mediator for the contact group on Guinea, and President
Wade of Senegal to ensure that they are informed of its work. From 15 to 19 February 2010, the OTP sent a mission to Guinea, led by Deputy
Prosecutor Fatou Bensouda, in the context of its preliminary examination activities. From 19‐21 May a second OTP mission met with the
Guinean Minister of Justice, Col. Lohalamou, and Guinean judges. The Guinean authorities extended full cooperation to the Court.
III. Cooperation – Galvanizing Efforts to Arrest
OTP‐NGO bi‐annual roundtable discussions at the Court
19‐20 October ‐ The OTP held its bi‐annual meetings with civil society at the Court’s headquarters with representatives from
international and local NGOs, including from situation countries. This roundtable was the largest one yet organized by the
Office, with the participation of more than 72 delegates from 39 organizations and 16 different countries.
The Office held focused, substantive and interactive sessions, building upon the Office’s well‐established dialogue with civil
society in order to effectively promote further progress in the implementation of the Rome system. The focus of this
roundtable’s thematic sessions was on arrest strategies, strengthening support from the EU, as well as preliminary
examinations in Colombia and Palestine. Civil society members also had the opportunity to go into deeper discussions
regarding the Office’s five ongoing situations with OTP staff members.
In his introductory remarks, Prosecutor Moreno‐Ocampo updated the participants on the ongoing cases, as well as the
situations under preliminary examination:
‐ the Lubanga proceedings are about to resume after the Appeals Chamber ordered the lift of the stay,
‐ the third trial (Bemba) will start in November,
‐ the Darfur III case has seen a breakthrough with the agreement on facts between Prosecution and Defence in the
Banda/Jerbo case,
‐ the Kivus case has seen the arrest of Callixte Mbarushimana,
‐ the Kenya investigation is progressing well and the Prosecution will present two cases before the end of 2010.
The Prosecutor stressed that the Office is currently focusing on standardizing its operations, both within the Office, through its
Operational Manual and its policy papers, as well as in its relations with the other organs of the Court. The Prosecutor
highlighted the importance of the Governance report. He welcomed the oversight role of the ASP, including its subsidiaries
bodies such as the CBF, with which the OTP had an excellent dialogue, and the IOM, within the boundaries set by the Rome
Page: 5 / 6
Statute. In this regard, the OTP noted that constitutional issues had appeared repeatedly with States in various discussions on
governance, oversight, budget and efficiency. These needed to be solved in the coming months.
Deputy Prosecutor Bensouda indicated that at a time when “anti‐ICC elements are hard at work to discredit the Court and lobby for
non‐support [in the African continent], it is important that the ASP is engaged in a campaign to safeguard the credibility and future
development of the Rome Statute system […]. NGOs have also an important role to play, insisting on the need to stop the crimes in Darfur
and to implement the arrest warrants. Promoting solidarity with the Court and not with the persons sought by the Court”.
While discussing arrest strategies, participants highlighted that each situation and each context were particular, and required a
specific strategy. Discussions also focused on lessons learned from other tribunals and courts. Participants emphasized the
critical role that civil society can have in galvanizing national and regional efforts to stop crimes and arrest those responsible.
In particular, the example of Invisible Children’s campaign for the adoption of the LRA Recovery Act by the US Congress was
highlighted.
A compilation of public versions of the presentations made during the roundtable can be found here.
22 October ‐ Amady Ba, Head of the International Cooperation section, attended the Gala evening celebrating the 12 years of
Avocats Sans Frontières France in Toulouse, France. During this event, the President of ASF, Jean‐François Cantier,
congratulated the Prosecutor “for his commitment and his actions in support of justice and the fight against impunity. We know the
many challenges that the ICC and the OTP face, but this is a justice framework under construction that ASF strongly supports, because it
contributes to the effective respect of human rights and the fight against impunity, while ensuring a fair trial”.
24 October ‐ Deputy Prosecutor Bensouda participated in the UN & Me event organized by the Dutch National Committee for
International Cooperation and Sustainable Development, in co‐operation with the Netherlands UN Association, the Dutch
National Youth Council, UNICEF and UNHCR Netherlands, in The Hague. The Deputy Prosecutor spoke on the prospects
and challenges for the ICC, and reminded the 500 students present that “future leaders like [them] will define how fast and how far
international criminal justice will go. The process might be painful and controversial, but it will change international relations forever”.
IV. Upcoming Events
¾ 26 October ‐ Prosecutor participates in “A Conversation with the ICC Prosecutor” at the Center for Human Rights and
Global Justice of the NY University School of Law, New York
¾ 28‐29 October ‐ Prosecutor participates to a high‐level retreat on ʺComplementarity after Kampala: The Way Forwardʺ,
organized by ICTJ and the ASP
¾ 30 October ‐ Prosecutor delivers remarks at the Conference on “Corporate War Crimes: Prosecuting Pillage of Natural
Resources” organized by the Open Society Justice Initiative, The Hague
¾ 2‐3 November ‐ Deputy Prosecutor participates as guest speaker at the “Kuramo Conference – International Annual
Colloquium on Law and Development”, Lagos
¾ 3 November ‐ Prosecutor briefs the Nineteenth Diplomatic Briefing, The Hague
¾ 5 November ‐ Deputy Prosecutor participates in the American Bar Association Annual Event, Paris
¾ 8‐9 November ‐ Deputy Prosecutor participates in the West African Sub Regional Meeting on International Justice,
organized by OSI ‐ West Africa and OSJI, Accra
¾ 19‐20 November ‐ Deputy Prosecutor addresses the African Diaspora on “Impunity and Human Rights Abuses in Sub
Saharan Africa: the Role of the ICC” at an event organized by the Africa Center for Information & Development, Oslo
¾ 22 November ‐ Beginning of the trial in the case of the Prosecutor v. Jean‐Pierre Bemba Gombo
¾ 6‐10 December ‐ Prosecutor participates in the ninth session of the Assembly of States Parties, New York
¾ 8 December ‐ Confirmation of Charges Hearing in the case of the Prosecutor v. Abdallah Banda and Saleh Mohammed Jerbo
* 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
Page: 6 / 6