When It Rains, It Pours: Tracking the recent developments in international criminal justiceBrianne McGonigle Leyh
International criminal justice has a reputation for being slow and progressing at a ‘glacial’ pace. For example, it took the International Criminal Court (ICC) ten years before it handed down its first judgment in the Lubanga case after it started operating in 2002. Similarly, the International Criminal Tribunal for the former Yugoslavia (ICTY) has a reputation for slowness; particularly after some trials lasted longer than six or more years. Court watchers are all too aware of the slow, sporadic developments coming out of these courts, and often eagerly await judgments. That is why the months of March and April 2016 were so anticipated, as they provided a windfall of developments within international criminal justice. The old expression is true: when it rains, it pours!
These developments are important given the fact that the ICTY is ending its mandate and is due to close up shop, and the ICC is just beginning to find its feet, as it will remain the major player in the global fight against impunity for mass atrocity crimes. How the international community, and more importantly the affected communities, will perceive the ‘justice’ pronounced by these institutions is yet to be determined, as both courts have their share of supporters and critics. However, it is clear that these recent legal developments will have a major impact for years to come on those accused, their victims and criminal jurisprudence.
Some highlights of the six decisions by the ICTY and ICC in the last few weeks are detailed below:
On 24 March 2016, the ICTY convicted Karadžić of genocide in Srebrenica, war crimes and crimes against humanity, sentencing him to 40 years imprisonment. As the former President of Republika Srpska and supreme commander of the Bosnian Serb Army during the Bosnian War in the 1990s, Karadžić is the most prominent figure convicted by the ICTY. The Prosecution charged him with genocide, war crimes and crimes against humanity, including murder, persecution, extermination, and taking UN peacekeepers hostage. The important conviction, seven years in the making, met with mixed reactions in the region, some welcoming its justice and others decrying it as an example of the ICTY’s anti-Serb bias. The defense intends to appeal the verdict.
The ICTY’s decision on 31 March 2016 ended the contentious trial of Vojislav Šešelj that commenced a decade earlier. Šešelj was alleged by the Prosecution to be individually criminally responsible for war crimes and crimes against humanity based on his role as President of the Serbian Radical Party. He was alleged to have advocated a homogeneous ‘Greater Serbia’ by violence, to have instigated Serb forces to commit crimes, and participated in war propaganda and incitement of hatred towards non-Serb people. At trial, Šešelj was self-represented and chose to not present a defence. Despite this, the Tribunal found that the Prosecution failed to prove their case and acquitted Šešelj on all counts. This long-awaited decision sparked a huge reaction and much criticism that the Tribunal misconstrued the events and Šešelj’s acts in context. Despite the Prosecution’s plan to appeal the acquittal, Šešelj is campaigning in Serbia’s upcoming parliamentary elections.
There were no less than four major recent developments at the ICC, each having a significant impact on the law, procedure and perceptions of fairness in international criminal justice.
Jean Pierre Bemba-Gombo (Central African Republic)
On 21 March 2016, in the fourth trial judgment of the ICC, three judges of Trial Chamber III unanimously convicted Jean-Pierre Bemba-Gombo, the former Vice President of the Democratic Republic of Congo (DRC), and leader of the rebel group Mouvement de Liberation du Congo (MLC). He was convicted for crimes against humanity (including murder and rape) and war crimes (including murder, rape, and pillaging) committed by Bemba’s forces in the Central African Republic (CAR) from 2002 – 2003. Bemba is the first ‘big fish’ prosecuted by the ICC and the first person successfully convicted under the mode of liability of command responsibility. Command responsibility allows the Court to hold individuals accountable for crimes committed by subordinates under their effective control, where the individual knew or should have known that crimes were being committed and failed to take measures to prevent or punish the crimes. This case is also significant because it is the first conviction for sexual and gender-based violence before the Court, which included evidence of rape against men, women and children. While the case is likely to be appealed, the sentencing and reparation phases will begin. Unlike in previous cases of conviction before the Court, Bemba was never declared indigent and some of his assets have been frozen in order to be made available for reparations to victims.
Dominic Ongwen (Uganda)
Following the hearing in January 2016, the Prosecutors’ 70 charges against Ongwen were confirmed by the ICC on 23 March. This is the first case in the Ugandan situation to go to trial before the ICC. The charges relate to Ongwen’s role as alleged Former Brigade Commander of the Lord’s Resistance Army (LRA), particularly from 2002 – 2005. The charges include attacks against the civilian population, murder, torture, enslavement, and sexual and gender-based crimes. Over 2000 victims have sought to participate in the proceedings. The case is particularly noteworthy as Ongwen himself was allegedly abducted as a child and recruited to the LRA. His status as a former child solider could be used by his defence or as a mitigating factor during sentencing if convicted.
Al Faqi Al Mahdi (Mali)
On 24 March 2016, Pre-Trial Chamber I found there were reasonable grounds to believe that Al Faqi al Mahdi, a former trainee teacher and expert in Islamic law, is criminally responsible for planning and leading the 2012 attacks by al-Qaeda affiliate Ansar Dine against the mausoleums of Timbuktu, 15th century historic and cultural shrines, as well as a mosque. That same week it became known that he informed the ICC last month that he would plead guilty to a single war crimes charge of destroying or partially destroying historical buildings. This is the first time a suspect has stated their intention to plead guilty before the ICC. The case will now be assigned to a Trial Chamber, which will determine whether the evidence against the accused supports a guilty plea. If this occurs, it will mark a number of firsts: the first Mali case, the first guilty plea, and the first conviction for the destruction of cultural property.
William Ruto and Joshua Sang (Kenya)
Despite all of the above developments, marking significant achievements for the Prosecutor, the Prosecutor suffered a significant loss in the Kenya situation. After a ‘no case to answer motion’ by the defence, on 5 April 2016, Trial Chamber V(A) decided, by a majority of 2-1 (Judge Herrera Carbuccia dissenting), that the case against the Deputy President of Kenya, William Samoei Ruto, and journalist, Joshua Arap Sang, is terminated. The majority found that the Prosecution’s case was too weak for a reasonable Trial Chamber to convict. The separate opinion notes there were issues of witness intimidation and interference, as many of the Prosecution’s witnesses were killed or recanted their previous testimony, though no evidence has been presented that links the accused with any witness interference. Interestingly, the termination decision does not preclude a new prosecution in the future, despite the fact that had the case moved forward the men would have, according to the majority, been acquitted. The decision is subject to appeal but it is unlikely for the Prosecutor to do so if the evidence is simply not there.
This post has been written in co-operation with Julie Fraser, PhD Candidate, Utrecht University, Netherlands Institute of Human Rights (SIM).