Tagged: Thomas Lubanga Dyilo

The ICC’s Principle of Complementarity and Domestic Prosecutions

POST WRITTEN BYProf. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

Before a matter can be fully pursued by the International Criminal Court, the ICC Prosecutor must first in the course of a preliminary examination determine, among other jurisdictional requirements, whether national authorities are actively pursuing a case of potential concern to the ICC. This is because the principle of complementarity, set forth in the Preamble of the Rome Statute and given specificity in Article 17 of the Rome Statute, debars the ICC from pursuing possible crimes within its subject matter jurisdiction if a State that can assert jurisdiction over the matter is doing so.

Article 19 of the Rome Statute provides additional force to the complementarity principle. It states that “[t]he Court shall satisfy itself that it has jurisdiction in any case brought before it” and that “[t]he Court may, on its own motion, determine the admissibility of a case in accordance with Article 17.” Article 19 also allows certain individuals and States to challenge the admissibility of a case.

In one of its first cases, the ICC prosecuted Thomas Lubanga Dyilo, the leader of a group pursuing violent opposition to the government of the Congo – despite the fact that the Congo was pursuing charges against him for genocide and crimes against humanity. Because these charges did not specifically include the crime of enlisting children under age 15 to participate in hostilities (a crime within ICC’s subject matter jurisdiction), the ICC determined that it could pursue that charge against Lubanga, without violating the principle of complementarity. ICC prosecution of Lubanga on this charge resulted in 2012 in the first conviction achieved by the ICC.

In an October 2015 report, ICC Prosecutor Fatou Bensouda needed to address the complementarity issue when requesting authority from a Pre-Trial Chamber to open an investigation into 2008 conflict in the South Ossetia region of Georgia. As written earlier, this conflict includes possible crimes committed by South Ossetian forces rebelling against Georgia and by Georgian forces in response, and – potentially – by Russian forces that intervened in support of the rebels.

In August 2008, Prosecutor Bensouda’s predecessor opened a preliminary examination of this matter. ICC Protocol regarding preliminary examinations requires the Prosecutor to first determine whether there is a reasonable basis to believe that crimes within ICC jurisdiction have been committed. The OTP recently made an affirmative determination regarding the Georgian situation prior to 2015. In her October 2015 Request for Authorization, Prosecutor Bensouda mentions that the seven-year delay in presenting her request was caused by the need, pursuant to Article 17’s complementarity requirement, to monitor efforts by national authorities in Georgia and Russia undertaking investigations of crimes of concern to the ICC.

The Prosecutor further states that Russia’s investigations appear to be proceeding. However, although Georgia had been engaging in investigations since 2008, Georgian officials notified her Office in March of this year that, because of several difficulties, Georgia was discontinuing its investigations. Because of this discontinuance, the Prosecutor concludes that there is at this time no complementarity objection that would defeat her request to open an investigation into the Georgian situation.

An ICC Pre-Trial Chamber must now decide whether to authorize the Prosecutor to open an investigation. The Trial Chamber will determine, among other jurisdictional issues, whether an investigation comports with the principle of complementarity. As noted above, even should the Chamber grant the Prosecutor’s request, challenges to admissibility may be raised at later stages.

The International Criminal Court Achieves a Landmark

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

June 25, 2014 marked a significant date in the history of the International Criminal Court; the ICC Prosecutor and the Defense for Germain Katanga discontinued their appeals regarding Katanga’s March 7, 2014 conviction on most (but not all) of the charges against him and his twelve year sentence issued on May 23, 2014. The discontinuance of the appeals in this case means that the judgment and sentence against Katanga are now final. This is the first time such finality has been achieved in a case that the ICC Prosecutor pursued to conviction.

The ICC Prosecutor achieved a conviction on March 14, 2012 against Thomas Lubanga Dyilo, and Lubanga was sentenced on July 10, 2012. However, appeals in the Lubanga case are still pending. As noted in a previous post, Germaine Katanga was convicted on charges of war crimes and crimes against humanity relating to the situation in the Democratic Republic of the Congo.

In a statement released on June 26, 2014, ICC Prosecutor Fatou Bensouda said,

This first conviction with finality at the ICC is a clear signal to all those who might seek to perpetrate such crimes, putting them on notice that, sooner or later, justice will be served.

As the next step in the process, the ICC Trial Chamber with responsibility for the Katanga case will consider possible reparations to victims of the crimes for which Germain Katanga was convicted.

The International Criminal Court Convicts Katanga for War Crimes and Crimes Against Humanity

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School

On March 7, 2014, a Trial Chamber of the International Criminal Court (ICC) rendered a guilty verdict against Germain Katanga, relating to an investigation commenced in June 2004 by the ICC Prosecutor into the Situation in the Democratic Republic of the Congo (DRC). This is the second conviction achieved by an ICC Prosecutor since the entry into force of the ICC’s Rome Statute on July 1, 2002.

The ICC’s first conviction was rendered in 2012 against Thomas Lubanga Dyilo. The Lubanga Case also arose out of the Prosecutors’ investigation of the DRC situation. Lubanga, the leader of an armed group opposed to the DRC government, was convicted pursuant to Article 8 of the Rome Statute of the war crime of conscripting children into his military forces.

Germain Katanga, who also led an armed force opposed to the DRC, was also convicted of Article 8 war crimes. Notably, however, he was also found guilty on one count of a crime against humanity, pursuant to Article 7(1)(a) of the Rome Statute. This represents the first conviction the ICC Prosecutor has obtained on a charge of crimes against humanity.

Pursuing a charge of crimes against humanity requires the ICC Prosecutor, under Article 7(1) of the Rome Statute, to prove that the underlying criminal acts were committed “as part of a widespread or systematic attack directed against any civilian population ….”

During the 1990s prior to the entry into force of the Rome Statute, the United Nations Security Council, pursuant to its authority under Chapter VII of the U.N. Charter, enacted the Statutes of the International Criminal Tribunal for the former Yugoslavia and the International Tribunal for Rwanda. These statutes contain similar requirements for prosecution of crimes against humanity.

In accordance with these statutory requirements, the ICTY and the ICTR have obtained convictions against many defendants on charges of crimes against humanity. While these cases are not binding on ICC Court, when in September 2008 the ICC Pre-Trial Chamber confirmed the crimes against humanity charge against Katanga, it explicitly referenced and found guidance from the ICTY and ICTR cases regarding their interpretation of the elements required to sustain a crimes against humanity charge.

The Trial Chamber found Katanga not guilty of some of the war crimes charged and one of the crimes against humanity charged. Both the Defense and the Prosecutor have 30 days within which to appeal the judgment. The Trial Chamber will soon conduct proceedings with respect to the sentence and reparations for the victims.