Opinio Juris

I mentioned last month that the ICC Prosecutor, Luis Moreno-Ocampo, was considering bringing genocide charges against Sudanese officials far more senior than Ahmed Haroun, the country's "humanitarian affairs" minister. Well, he's now decided to do exactly that — and his target is no other than Omar Hassan al-Bashir, the President of Sudan himself:

The chief prosecutor of the Internationals Criminal Court will seek an arrest warrant Monday for Sudanese President Omar Hassan al-Bashir, charging him with genocide and crimes against humanity in the orchestration of a campaign of violence that led to the deaths of hundreds of thousands of civilians in the nation's Darfur region during the past five years, according to U.N. officials and diplomats.

The action by the prosecutor, Luis Moreno-Ocampo of Argentina, will mark the first time that the tribunal in The Hague charges a sitting head of state with such crimes, and represents a major step by the court to implicate the highest levels of the Sudanese government for the atrocities in Darfur.

[snip]

"I will present my case and my evidence to the [ICC] judges, and they will take two to three months to decide," Moreno-Ocampo said in an interview Wednesday, referring to a pretrial panel made up of judges from Brazil, Ghana and Latvia. "We will request a warrant of arrest, and the judges have to evaluate the evidence." On Thursday, Moreno-Ocampo's office said in a statement that the prosecutor will "summarize the evidence, the crimes and name individual(s) charged" at a news conference Monday in The Hague.

Wow. To say this is a bold move — and one fraught with danger — is an understatement. I've long disagreed with Julian about whether the ICC's involvement in Darfur undermines the peace process (which is better referred to as the "peace process," because the Sudanese government has never been committed to it). But this time I think Julian's concerns have to be taken very seriously. The UN is certainly worried:

Some U.N. officials raised concerns Thursday that the decision would complicate the peace process in Darfur, possibly triggering a military response by Sudanese forces or proxies against the nearly 10,000 U.N. and African Union peacekeepers located there. At least seven peacekeepers were killed and 22 were injured Tuesday during an ambush by a well-organized and unidentified armed group.

[snip]

Representatives from the five permanent members of the U.N. Security Council — Britain, China, France, Russia and the United States — met with U.N. officials Thursday to discuss the safety of peacekeepers in Darfur. U.N. military planners have begun moving peacekeepers to safer locations and are distributing food and equipment in case the Sudanese government cuts off supplies.

"All bets are off; anything could happen," said one U.N. official, adding that circumstantial evidence shows that the government of Sudan orchestrated this week's ambush. "The mission is so fragile, it would not take much for the whole thing to come crashing down."

If there was a reasonable chance that indicting Bashir would convince China and Russia to discontinue their economic, political, and military support for Khartoum, these risks might be worth it. But that is obviously unlikely to happen — both countries have consistently opposed the ICC's efforts in Darfur and will no doubt oppose this new move, as well.

As a side note, I am very anxious to find out what evidence the Prosecutor has that ostensibly proves Bashir is guilty of genocide. As I pointed out in my previous post, the Security Council-sponsored International Commission of Inquiry on Darfur specifically — and controversially, to be sure — recommended that the ICC not pursue genocide charges against the Sudanese government:

The Commission concluded that the Government of the Sudan has not pursued a policy of genocide. Arguably, two elements of genocide might be deduced from the gross violations of human rights perpetrated by Government forces and the militias under their control. These two elements are, first, the actus reus consisting of killing, or causing serious bodily or mental harm, or deliberately inflicting conditions of life likely to bring about physical destruction; and, second, on the basis of a subjective standard, the existence of a protected group being targeted by the authors of criminal conduct. However, the crucial element of genocidal intent appears to be missing, at least as far as the central Government authorities are concerned. Generally speaking the policy of attacking, killing and forcibly displacing members of some tribes does not evince a specific intent to annihilate, in whole or in part, a group distinguished on racial, ethnic, national or religious grounds. Rather, it would seem that those who planned and organized attacks on villages pursued the intent to drive the victims from their homes, primarily for purposes of counter-insurgency warfare.

Though I'm sympathetic to those who want to call the atrocities in Darfur "genocide," I've always found the Commission's legal analysis of the situation quite persuasive. So I hope that the Prosecutor's subsequent investigations have uncovered new evidence that the Sudanese government was not simply — if murderously — trying to maintain its power in the face of a concerted rebel threat. If they haven't, it will look like Moreno-Ocampo is simply giving into political pressure.

Once again — wow. I don't know what else to say. First the Court stays the Lubanga trial. Now the Prosecutor seeks to indict and arrest the President of the Sudan. This is turning out to be quite a week for the ICC...

More on the story as it develops.

According to the ICC President and Prosecutor, Lubanga's trial can now continue, because the UN has agreed to turn over the disputed evidence to the Trial Chamber and the defense:

"The obstacles have been lifted," chief prosecutor Luis Moreno-Ocampo told journalists on the sidelines of a ceremony in The Hague to mark the 10th anniversary of the Rome Treaty that led to the court's creation.

Lubanga's trial would be the ICC's first.

Court president Philippe Kirsch said the main point of contention, over the prosecution's alleged abuse of a confidentiality allowances, should be resolved "shortly".

On June 13, judges imposed an indefinite stay on proceedings, due to have started last Monday, after finding that prosecutors had wrongly withheld evidence, notably from the United Nations, from Lubanga's lawyers.

This "misuse" inhibited Lubanga's ability to prepare a proper defence, they said.

Lubanga subsequently applied for release, and on Wednesday the ICC ordered him to be freed from detention. But the prosecution lodged an immediate appeal that suspended Lubanga's release.

"The UN has sent a letter authorising the other parties to have access to the documents," Moreno-Ocampo said Thursday, reiterating that he was confident the trial would kick off by autumn.

If true, this is good news indeed. It would have been very unfortunate if the ICC's first trial had been derailed by the Prosecutor's overbroad use of confidentiality agreements. But at the same time, a Gitmo-style show trial involving secret evidence would have done lasting damage to the Court's legitimacy. The Trial Chamber's decision to stay the trial was thus the right move, because it forced the UN, which is obviously deeply invested in the success of the ICC, to do the right thing and release the evidence.

The judges of the Trial Chamber deserve praise for their willingness to defend the integrity of the system at all costs. I can only imagine the political pressure that was being exerted on them behind the scenes to permit Lubanga's trial to continue. Their bravery led to the only satisfactory resolution of the problem — and helps establishes the critical judicial independence of the Court.

As I anticipated a few days ago following the UN's refusal to provide the judges with meaningful access to the disputed evidence, Trial Chamber I has ordered Thomas Lubanga Dyilo's unconditional and immediate release:

30. As just set out, the Chamber's Decision stayed the proceedings sine die because of the present impossibility of trying the accused fairly. It follows that the detention of the accused cannot be justified in order to ensure his appearance at trial or to safeguard the investigation, because the trial (which was the result of the investigation) has been stayed. Furthermore, in the absence of the prospect of a trial, the accused cannot be held in custody or subjected to provisional release as purely preventative measures to deter him from committing further crimes.

The Trial Chamber's decision, however, does not mean that Lubanga will walk out of the Hague anytime soon. First, despite releasing him "unconditionally" and "immediately," the Court stayed his actual release pending appeal of its order by the Prosecutor:

35. Trial Chamber I orders the release of the accused, but since by Rule 154 of the Rules an appeal may be filed no later than 5 days from the date upon which the party filing the appeal is notified of the decision, this order shall not be enforced until the expiry of the 5 day time limit, and, furthermore, if an appeal is filed within the 5 day time-limit against the order granting release and if a request is made in the appeal for suspensive effect, the accused shall not leave detention until the Appeals Chamber has resolved whether or not the effect of the order granting release is to be suspended.

The Prosecutor will no doubt ask the Appeals Chamber to suspend the release order, which means that Lubanga will remain in detention until the Chamber resolves the appeal, however long that takes.

Second — and I doubt this aspect of the order will receive much media attention — the Trial Chamber indicated that Lubanga will be released only if a State is willing to take him:

36. It is to be noted, finally, that by Rule 185 of the Rules, an order releasing the accused shall only be put into effect after arrangements have been made for his transfer to a State that is obliged to receive him. It follows that these arrangements should not be implemented until the 5 day time-limit, set out above, has expired.

That requirement could be a serious problem for Lubanga. I predicted in my forthcoming article "What Happens to the Acquitted?" that ICC acquittees will find it no less difficult to find new homes than ICTR acquittees like Ntagerura and Rwamakuba, and I am confident — sadly — that Lubanga's "release" will prove me right. There is no way the DRC will take him; he is, after all, a rebel. And it is very unlikely that any other State will be enthusiastic about having an accused war criminal walking free on its territory. So I fear that Lubanga may end up sharing the same fate as Ntagerura and Rwamakuba: being "free" to enjoy living as a virtual prisoner in a UN safehouse.

I recently blogged about Trial Chamber I's stunning decision to stay Thomas Lubanga Dyilo's trial because of the Prosecutor's failure to disclose exculpatory evidence to the defense. The Court held a hearing on the 24th to determine whether, in light of its decision, Lubanga should be released. It has yet to reach a conclusion — but if the "compromise" the UN offered at the hearing is any indication, he might not be in custody too much longer:

In a correspondence from Nicolas Michel, the UN Under-Secretary-General for Legal Affairs, the United Nations proposed that the judges go to the Peace Palace in The Hague, therefore on "UN territory", to consult the documents.

They would not be allowed to take notes, or to record information during their consultation. Thereafter, they could indicate certain pieces of evidence for which the prosecutor would be invited to make a summary. The judges could then compare the summary with the original evidence and decide to reveal these summaries to the defence.

During the hearing of 24 June, Catherine Mabille, the lawyer for Lubanga, has from the start specified that "the defence will not accept summaries, which cannot be evidence".

"If you accept", she declared, that means that the prosecutor signs agreements with the United Nations, and that the UN will dictate to the judges, to justice, what it can hear, what can be said or not."

The judges seem to agree with Mabille: Justice Adrian Fulford told the Prosecutor that the court was "unlikely to approve a system that depends on its ability to memorize large quantities of information which it is unable to retain and study, and compare it with other evidence in the case so as to assess its relevance." His position is sound: the last thing the Court needs is a trial that resembles a Guantanamo military commission. This trial will create the blueprint for future trials; it is thus imperative for the Court to do everything in its power to protect the defendant's rights — even if that ultimately means letting Lubanga walk.

No, Virginia, being unanimously acquitted by an international tribunal's trial and appeals chambers doesn't mean very much:

Belgium has confirmed that it was investigating Emmanuel Bagambiki, former Governor of Cyangugu during the 1994 genocide, who was acquitted by the International Criminal Tribunal for Rwanda (ICTR) and who is sought by Rwanda, reports Hirondelle Agency .

"The federal prosecutor is looking at the [Bagambiki's] extradition request and that there is an arrest warrant issued against him [by Rwanda]','said Lieve Pellens spokesperson of the prosecutor.

However, he hinted that Belgium and Rwanda, for the time being, do not have an extradition agreement, but affirmed that Investigations were underway against the former Rwandan official, who is living in Belgium with his family.

Following his final acquittal by the ICTR appeals court, on 8 February 2006, for crimes of genocide and crimes against humanity, Rwanda decided to prosecute the former Governor for rape, for which he was not tried by the UN tribunal.

On 10 October 2007, the Court of First Instance of Rusizi, his native region, sentenced Bagambiki in absentia to life in prison for rape and incitement to commit rape.

A source told Hirondelle that the federal prosecutor, Phillippe Meire, had recently travelled to Rwanda to follow up on the judgement.

If extradition was rejected, Belgium could decide to prosecute Bagambiki itself if there was any convincing evidence.

Rwanda's attempt to get their hands on Bagambiki is unlikely to succeed, given that the European Convention on Extradition prohibits extradition when the request is based on a conviction obtained in absentia. It is also unlikely that Belgium would prosecute Bagambiki for the rapes itself, because -- as I have explained elsewhere -- the rape charges are based on the same modes of participation (direct participation and command responsibility) that the ICTR unanimously rejected. Why, then, is Belgium continuing this legal charade? There seems to be only one answer: it is trying to punish Bagambiki for seeking aslyum -- and ultimately receiving it by court order, over government protests -- in Belgium.

Charades like this make a mockery of international criminal justice -- William Haynes writ large: "We can't have acquittals. We've been holding these guys for years. How can we explain acquittals? We have to have convictions."

In what can only be described as a stunning development, Trial Chamber I has stayed Thomas Lubanga Dyilo's trial because of the Prosecutor's failure to disclose exculpatory evidence to the defense. Indeed, the decision seems to indicate that unless the Prosecutor reverses course and agrees to disclose the evidence, the Trial Chamber is prepared to dismiss the charges and allow Lubanga to go free. A hearing on that issue is scheduled for June 24.

The Trial Chamber's decision turns on the interpretation of Article 54(3)(e) of the Rome Statute, which provides as follows:

Duties and powers of the Prosecutor with respect to investigations
[...]
3. The Prosecutor may:
[...]
(e) Agree not to disclose, at any stage of the proceedings, documents or information that the Prosecutor obtains on the condition of confidentiality and solely for the purpose of generating new evidence, unless the provider of the information consents.

During the early stages of his investigation, the Prosecutor entered into dozens of Article 54 agreements with various information providers, including the UN. Because of those agreements, the Prosecutor now finds himself unable to disclose more than 200 potentially-exculpatory documents not only to the defense, but even to the Trial Chamber itself:

64. The prosecution is unable to disclose any of these items of evidence to the accused, in full or in a redacted form. Furthermore, save for a limited number of documents (32) that have been supplied to the Chamber by six unidentified information-providers in redacted form, the prosecution (given the terms of the agreements) is unable to show them to the Chamber. This is because the information-providers do not consent to the judges viewing copies of the original materials (in the majority of instances the Chamber cannot be shown the documents at all), notwithstanding an undertaking which has been given by the judges to uphold the confidential status of the documents or information, unless consent is given by the information-providers for their wider distribution.

In defense of his non-disclosure, the Prosecutor argued that "[d]espite the requirements of Article 54(3)(e) that confidentiality agreements are to be used solely for the purpose of generating new evidence... evidence which it is anticipated may be used during the trial can also be obtained pursuant to Article 54(3)(e)." The Trial Chamber rejected that interpretation of Article 54 in no uncertain terms:

72. The prosecution has given Article 54(3)(e) a broad and incorrect interpretation: it has utilised the provision routinely, in inappropriate circumstances, instead of resorting to it exceptionally, when particular, restrictive circumstances apply. Indeed, the prosecution conceded in open court that agreements reached under Article 54(3) (e) have been used generally to gather information, unconnected with its springboard or lead potential.

[snip]

73. Therefore, although the Chamber does not have the information necessary to analyse the circumstances in which each of the individual documents was supplied to the prosecution, the overall picture is clear: the prosecution's general approach has been to use Article 54(3)(e) to obtain a wide range of materials under the cloak of confidentiality, in order to identify from those materials evidence to be used at trial (having obtained the information provider's consent). This is the exact opposite of the proper use of the provision, which is, exceptionally, to allow the prosecution to receive information or documents which are not for use at trial but which are instead intended to "lead" to new evidence. The prosecution's approach constitutes a wholesale and serious abuse, and a violation of an important provision which was intended to allow the prosecution to receive evidence confidentially, in very restrictive circumstances. The logic of the prosecution's position is that all of the evidence that it obtains from information-providers can be the subject of Article 54(3)(e) agreements.

The Trial Chamber was particularly aggrieved by the Prosecutor's refusal to disclose the confidential information to the bench. As the Chamber pointed out, it — not the Prosecutor — is ultimately responsible for ensuring that the defendant receives a fair trial:

88. Although the prosecution, as a first stage in this procedure, must make the initial decision as to the exculpatory value or effect of any piece of evidence under Article 67(2) ("evidence in the Prosecutor's possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence"), once this threshold is passed and it is accepted that the material has, potentially, an exculpatory effect, only the Chamber can make a decision on non-disclosure if exceptional circumstances so require. If it is proposed that evidence of this kind should be withheld, it is to be put before the judges in its original form and in its entirety. The ultimate responsibility for securing justice and ensuring fairness has been given to the Chamber (Article 64(2) of the Statute) and these responsibilities cannot be delegated by, or removed from, the judges. In this case, the Bench has been prevented from assessing for itself the impact on the fairness of these proceedings should the evidence remain undisclosed,142 and the approach of the prosecution means, inter alia, that for the purposes of Article 67(2), the Chamber could never, "in case of doubt", make a decision (because it will be unable to view the underlying material).

The Trial Chamber thus held — reluctantly, because it knows that its decision may well lead to Lubanga's release — that it had no other choice but to stay the proceedings:

91. This is an international criminal court, with the sole purpose of trying those charged with the "most serious crimes of concern to the international community as a whole" and the judges are enjoined, in discharging this important role, to ensure that the accused receives a fair trial. If, at the outset, it is clear that the essential preconditions of a fair trial are missing and there is no sufficient indication that this will be resolved during the trial process, it is necessary - indeed, inevitable - that the proceedings should be stayed. It would be wholly wrong for a criminal court to begin, or to continue, a trial once it has become clear that the inevitable conclusion in the final judgment will be that the proceedings are vitiated because of unfairness which will not be rectified. In this instance, in its filing of 9 June 2008, the prosecution went no further than raising the possibility that the Chamber may be provided at some stage in the future with no more than incomplete and insufficient materials. There is, therefore, no prospect, on the information before the Chamber, that the present deficiencies will be corrected.

As mentioned above, a hearing on the consequences of the Prosecutor's failure to disclose the exculpatory evidence is scheduled for June 24. The Prosecutor has two choices: disclose the evidence or face the very real possibility that Lubanga will go free.

This is clearly a landmark decision. It would obviously be a tragedy if Lubanga was released — but there was no way that the Trial Chamber could approve of the Prosecutor's woefully overbroad use of Article 54, given the vast amount of exculpatory evidence that would thereby have gone undisclosed. The Prosecutor's decision to use Article 54 in that way is a mystery, as is his decision to promise the information providers that he would not even disclose the confidential information to the Trial Chamber. Given today's decision, I doubt he will make either mistake again.

The ICL community is abuzz with news that the ICC Prosecutor appears ready to issue new indictments that connect the "whole state apparatus" in Sudan to the crimes against humanity committed in Darfur. Here's Mark Leon Goldberg:

This is a big deal. On the one hand, indicting top government officials could seriously disrupt current diplomatic efforts to coax and cajole Khartoum into cooperating with the deployment of peacekeepers in Darfur. The international community also needs Khartoum's cooperation to shore up the separate peace agreement with the south and resolve the conflict in the Abyei region. Another way of looking at this, though, is that current international efforts to bolster UNAMID are already fledgling. Fighting in Abyei has already broken out (causing some 50,000 displaced) the north-south peace accord is already fledgling. This new intervention by the ICC, if it comes, could provide a critical point of political leverage over the political elites calling the shots in Khartoum.

So far, the international community has not been able to convince the Sudanese government that it is in their best interests to cooperate on Darfur, Abyei, and elsewhere. The threat of indictment (and the ability of the Security Council to suspend those indictments) could inject the necessary impetus for the government to finally take a conciliatory stance toward the international community. The problem is, ICC indictments are a relatively new phenomenon on the international stage. Diplomats seem not yet to have quite learned the best way use these indictments to serve their political ends. Here's hoping they learn fast.

I agree with Mark that this is a big deal. New indictments, particularly of Sudan's top leadership, will further isolate the murderous regime in Khartoum. I'm less sanguine, however, that they would encourage the Sudanese government to take a conciliatory stance toward the international community. It seems to me that the opposite is true -- that Sudan will simply ignore the new indictments and continue to level its ridiculous allegations of political bias against the ICC. That doesn't mean the Prosecutor's intended actions are ill-advised; on the contrary, Sudan's patrons, particularly China, may well find it more difficult to support the Sudanese government if all or most of its top leaders are indicted -- a worthy and necessary outcome. But we shouldn't have any illusions about how the Sudanese government will react.

Another aspect of the Prosecutor's recent statements are worth noting -- namely, that he is also considering whether to bring genocide charges regarding Darfur:

The international criminal court (ICC) is refusing to dismiss the possibility of genocide in Sudan's wartorn Darfur region, its chief prosecutor has said.

Chief prosecutor Luis Moreno-Ocampo made the claim in a briefing to MPs and peers in parliament 15 months after the ICC named Sudan's humanitarian affairs minister, Ahmed Haroun, and Ali Kosheib, Janjaweed leader, as chief suspects of war crimes against humanity in Darfur.

Mr Moreno-Ocampo said he had established a "clear case" against the two suspects based on crimes against humanity.

"We never dismiss genocide", he explained, adding that a "second investigation" is currently underway considering this "second aspect" of the Darfur crisis.

This is a huge deal, and I'm mystified as to why it has not received more media attention. NGOs and some governments, particularly the US, have long claimed that the Sudanese government's actions in Darfur amounted to genocide. Nevertheless, the Security Council-sponsored Report of the International Commission of Inquiry on Darfur specifically rejected that conclusion (though it did say that individual government officials and janjaweed militiamen might have acted with genocidal intent):

The Commission concluded that the Government of the Sudan has not pursued a policy of genocide. Arguably, two elements of genocide might be deduced from the gross violations of human rights perpetrated by Government forces and the militias under their control. These two elements are, first, the actus reus consisting of killing, or causing serious bodily or mental harm, or deliberately inflicting conditions of life likely to bring about physical destruction; and, second, on the basis of a subjective standard, the existence of a protected group being targeted by the authors of criminal conduct. However, the crucial element of genocidal intent appears to be missing, at least as far as the central Government authorities are concerned. Generally speaking the policy of attacking, killing and forcibly displacing members of some tribes does not evince a specific intent to annihilate, in whole or in part, a group distinguished on racial, ethnic, national or religious grounds. Rather, it would seem that those who planned and organized attacks on villages pursued the intent to drive the victims from their homes, primarily for purposes of counter-insurgency warfare.

I think the Commission's report is very convincing, so it will be interesting to see whether the Prosecutor has been able to develop new evidence of a genocidal policy. Unless he has, any attempt to charge the Sudanese government with genocide will make it seem like he is simply giving in to western political pressure -- a result that, however unjustified, would further damage his already shaky reputation for independence.

Last month, I noted that the ICTR Prosecutor had "disowned" Human Rights Watch for daring to criticize his request to refer Yusuf Munyakazi to Rwanda for trial. I guess he'll now have to disown Trial Chamber III, as well, because on Monday it agreed with HRW and rejected the referral:

Chances of genocide suspect and former Rwandan Interhamwe militia leader Yussuf Munyakazi of being tried on home ground were diminished on Wednesday when the United Nations war crimes tribunal rebuffed opposition application to hold the trial in the small east African state.

Mr Munyakazi is facing charges of the 1994 Rwanda genocide in which UN estimates show that over 800,000 people, mostly ethnic Tutsis and moderate Hutus were allegedly murdered by his armed forces between April and July.

The 73 year-old former farmer and businessman was arrested in the neighbouring Democratic Republic of Congo (DRC) in 2004, prior to being brought before the International Criminal Tribunal for Rwanda (ICTR).

He allegedly masterminded and in some instances, actually participated in the killing of the Tutsis who had sought sanctuary in numerous churches in Rwanda’s Bugarame commune.

The Trial Chamber's decision is comprehensive and well-reasoned. National referrals are governed by Rule 11bis, which provides in relevant part that "[i]n determining whether to refer the case... the Trial Chamber shall satisfy itself that the accused will receive a fair trial in the courts of the State concerned and that the death penalty will not be imposed or carried out."

The Trial Chamber began by noting that Rwanda had, in fact, abolished the death penalty. It pointed out, however, that defendants convicted in Rwandan courts of torture, murder, genocide, and crimes against humanity will be sentenced to life imprisonment "with special conditions" — namely, life imprisonment in permanent isolation from other prisoners. Such punishment, the Trial Chamber held, was inconsistent with international standards for detention, which require imprisonment in isolation to be an exceptional punishment "applicable only where necessary and proportionate" and to be imposed with numerous procedural safeguards, such as periodic judicial review to determine whether isolation remains necessary. Those safeguards are completely absent from Rwandan law.

Although the isolation ground would likely have been enough to deny the referral, the Trial Chamber offered two additional grounds for denying it:

• One judge would have presided over Munyakazi's trial, making the court particularly susceptible to political pressure from the Rwandan government — which has a long history of undermining the independence of the judiciary. (A panel of three judges, the Trial Chamber noted, would likely satisfy Rule 11bis. At present, however, Rwandan law does not provide for such panels.)


• The Rwandan government has consistently harassed, arrested, detained, and sometimes even killed witnesses for the defense, making it unlikely that Munyakazi would have the ability to secure and examine witnesses "under the same conditions as witnesses against him," a right guaranteed by Article 20 of the ICTR Statute. Moreover, the Trial Chamber noted that the Rwandan government has done nothing to help defendants in Rwandan courts obtain witnesses who are located outside of Rwanda.

The Trial Chamber's decision obviously represents a significant setback for the ICTR's completion strategy. Rwanda will now have to make additional, and likely time-consuming, changes to its criminal-justice system if it wants to receive the 17 suspects the ICTR intends to transfer. That said, the decision will no doubt help legitimize the completion strategy itself, which many have criticized — including an ICTR appellate judge — as being far less concerned with fairness to defendants than with dissolving the ICTR as quickly and cheaply as possible. At the administrative level, those criticisms may still hold. Fortunately, at least for now, the Trial Chamber seems disinclined to play along.

How desperate is the ICTR to fulfill its completion strategy by dumping cases on Rwanda? Enough to disavow the NGO on which it has relied on for nearly 14 years:

The Prosecutor of the International Criminal Tribunal for Rwanda (ICTR) when presenting last week his motion in favour of transfer of genocide accused Yusuf Munyakazi to Rwanda, clearly distanced himself from the Non Governmental Organisation (NGO) Human Rights Watch (HRW), on which, however, the UN Court has relied on for the last 14 years for expert testimony.

Presenting his arguments before the Chamber, the prosecutor accused HRW of lack of credibility and having confused the collection of information on the violations of human rights in general and international criminal proceedings in an apparent attempt to rebuff HRW's contention not to send 1994 genocide accused persons to stand trials in Kigali.

He also affirmed that the HRW's sources were in fact "inadmissible and not very reliable".

Since the first indictment presented at the ICTR, the Office of the Prosecutor (OTP) has relied mainly on the collective investigation carried out by HRW and the book titled "Leave None to Tell the Story", which it presents as evidence in the majority of the trials.

The prosecution, moreover, has called in almost every trial as an expert witness, Dr Allison des Forges, official in charge of Africa for HRW, who is also a historian and specialist in Rwanda.

By "lack of credibility," the prosecutor really means "not letting us get away with allowing ICTR defendants to receive unfair trials in Rwanda." Which they will, as I have argued and as HRW has documented in detail.

Not suprisingly, HRW rejected the prosecutor's allegations:

Responding to the Prosecution's allegations, Ms Reidy informed the Chamber of their systematic compilation of reports, method applied and categories of people interviewed in their investigations of the Rwandan judicial system.

For example, among people questioned, she affirmed, were four current or former ministers of justice, 14 current or former judges, 11 current or former prosecutors, three current or former bar association presidents, 15 national or international NGO representatives and more than 100 Rwandan victims of various abuses of the legal system.

I understand the Security Council's eagerness for the ICTR to close up shop. But that eagerness cannot be allowed to override the rights of ICTR defendants.

A human-rights NGO in South Africa, the Southern Africa Litigation Centre (SALC), has formally requested the National Prosecuting Authority's Priority Crimes Unit to investigate senior Zimbabwean officials suspected of committing crimes against humanity:

Said SALC Director Nicole Fritz on Sunday: "The intention behind the initiative is both to ensure some form of accountability for the people of Zimbabwe at a time when their own justice system has all but collapsed and also to secure South Africa's interest against becoming a 'safe haven' for perpetrators of the most egregious international crimes."

South Africa's implementation of the Rome Statute of the International Criminal Court Act, No 27 of 2002, permits prosecutions for crimes against humanity of those who are not South African nationals or have not committed such crimes on SA's territory if such a person after the commission of the crime, is present in South Africa.

Several of the perpetrators named in the dossier travelled to South Africa on official business, in some instances for co-operative endeavours such as the South Africa/Zimbabwe Joint Permanent Commission on Defence and Security.

Moreover, given Zimbabwe's economic collapse, many of those named travelled to South Africa to obtain desired commodities and services, including healthcare, Fritz said.

Although it is obviously too early to predict whether SALC's request will go anywhere, the request foregrounds how important it is for states to adopt conditional universal jurisdiction for serious international crimes, particularly when they share a border with the state in which the crimes are being committed. The Zimbabwean officials will be far less likely to venture into South Africa if they fear facing prosecution there. And that threat exists only because South Africa has taken a very progressive approach to its incorporation of the Rome Statute.

Imagine if every peaceful state in Africa followed South Africa's lead and embraced conditional universal jurisdiction. With no safe havens to flee to, petty dictators like Mugabe and their minions would almost certainly think twice before committing their crimes.

Not surprisingly, I strongly disagree with Julian's insistence that "the ICC really is now the obstacle to peace" in Uganda.

To begin with, we need to give the ICC credit where credit is due: as Mark Leon Goldberg pointed out earlier today at the invaluable UN Dispatch, "[i]t was not until the ICC began its investigation and issued indictments that the LRA began to seek a peace agreement with the Ugandan government in good faith; the ICC indictments provided the critical leverage to get the peace process going." I think that statement is somewhat one-sided: the Ugandan government doesn't exactly have a sterling record when it comes to genuinely seeking peace with the LRA. (See here for a nice summary.) Nevertheless, Goldberg's basic point — that the peace negotiations never stood much of a chance of success prior to the ICC's involvement — seems undeniable.

That does not mean, of course, that the ICC has not overstayed its welcome. Perhaps Julian is right that the Court now needs to figure out a way "to back down gracefully." But let's be clear about one thing: if the ICC dismisses the arrest warrants, we will not see justice in Uganda any time soon. Just consider the bait-and-switch that the Ugandan government and the LRA have pulled in the last month alone. First the plan was to try Kony and the others for war crimes and crimes against humanity in Uganda's High Court:

“First of all, this protocol which has been signed is a very important protocol because it deals with important issues like handling impunity. And we hope that after that the remaining agendas are not so difficult. This is the ceasefire and then the DDR, this is demobilization and disarmament, and the reintegration. So the protocol that has been signed is very, very important. Accepting to be subjected to laws is a major achievement, and we hope that we shall be seeing a positive conclusion of the peace talks in the nearest future,” she said.

Nankabirwa said the new agreement paves the way for those accused of severe crimes would be tried in the High Court of Uganda while those accused of lesser crimes would face the northern Uganda traditional justice system know as Mato Oput.

“First of all the crimes differ. There are small crimes which will be handled by the traditional judicial system, and we shall come up with a layout of the traditional judicial system to handle reconciliation and accountability. But the other crimes, like the war crimes, are normally handled by the High Court. So what the teams have done is append their signatures on exactly that so that at the end of the day there are some in the LRA who will appear before the High Court because of their crimes,” Nankabirwa said.

That plan was a step in the right direction, although it was clear that Uganda could not satisfy the ICC's principle of complementarity without fundamentally revamping its criminal justice system. (For an analysis of the shortcomings of the Ugandan system, see here.) But now the plan seems to have changed again — Museveni made it quite clear today that not even Kony and the other LRA leaders will stand trial in a Ugandan court:

Museveni said Joseph Kony, the LRA leader, and his commanders will instead be brought before "traditional" Ugandan courts - which emphasise apologies and compensation rather than punishment - as part of a deal to end a 21-year civil war marked by the abduction of children as combatants, mass rape of women and the mutilation and murder of civilians.

Museveni said local trials were the wish of the victims and leaders in the areas hit by the conflict.

"What we have agreed with our people is that they should face traditional justice, which is more compensatory than a retributive system," he said on a visit to London. "That is what we have agreed at the request of the local community. They have been mainly tormenting people in one area and it is that community which asked us to use traditional justice."

It is, if course, tempting to reply to this bait-and-switch by saying "so what?" If ordinary Ugandans believe that peace through traditional justice is more important than punishing the LRA for its many crimes, isn't that their right?

Maybe so — but that assumes ordinary Ugandans actually support trading justice for peace. Museveni claims that they do, but the evidence seems to indicate otherwise. Not only do a majority of Acholi chiefs believe that it is impossible to adapt mapo oput for use on a national scale given the scope and scale of the civil war, a recent study by the UN High Commissioner for Human Rights found that most Ugandans oppose not prosecuting high-level perpetrators like Kony and the other LRA leaders:

[R]espondents across the three sub-regions described the need for different levels of transitional justice processes to address different levels of perpetrators and crimes. Local practices, they argued, were appropriate only for the cleansing and reintegration of low-level perpetrators. In discussing the use of local practices, a male victim of violence in Lango said, “We can forgive the rest but top officials involved in the war crimes should be taken to court.” Most Langi and Iteso respondents opposed the use of practices for major perpetrators, such as senior Government or LRA figures, whom they argued should be prosecuted through court structures, including the ICC. “Prosecution by the international court is applicable for high ranking war perpetrators like Museveni and Kony,” said an LDU member in Teso. Two parents of abducted children in Lango said, “Kony must be taken to the ICC….Museveni should also be tried by the ICC.” Some abductees and their relatives in Acholiland argued along these same lines, underlining their desire to distance abductees from the rebel commanders who forced them to commit atrocities and who therefore, they argued, should be prosecuted.

If that's true, it is difficult to argue that the ICC should simply step aside and leave the Ugandan government and the LRA to their own devices. There is obviously no guarantee that the two sides, once freed from ICC oversight, will negotiate a peace that is genuinely acceptable to ordinary Ugandans. Indeed, the evidence to date indicates otherwise. And, of course, the Court will suffer significant and potentially irreparable harm if it rewards the combined Uganda/LRA temper tantrum: as John Boonstra noted today (also at UN Dispatch), "[i]f the ICC is seen as capitulating to the demands of its host government — or worse, to those of an indicted war criminal — a dangerous precedent will be set for the court's work elsewhere."

What, then, is the right answer? It seems to me that the answer lies in the ICC's principle of complementarity. Given that ordinary Ugandans favor traditional justice for low-level perpetrators and criminal prosecution for high-level perpetrators, the Court should insist on two things: (1) that the Ugandan government and the LRA revert back to their original plan to try Kony and the other LRA leaders in Uganda's High Court; and (2) that the Ugandan government revamp its criminal justice system to satisfy the principle of complementarity. At that point — and only at that point — should the ICC step aside.

Which is, of course, precisely what the ICC is designed to do.

Further to Julian's post on Friday, the ICC has already made clear that it has no intention of lifting the warrants:

The office of the prosecutor of International Criminal Court Thursday insisted arrest warrants for Lord's Resistance Army, or LRA, rebels in Uganda remain in effect following news Kampala has agreed to set up national courts to handle LRA crimes.

"The office of the prosecutor is not a party to the peace process," the office said in a statement. "The arrest warrants against the LRA commanders were issued by the court and remain in effect."

The ICC's position is sound, given that Uganda's national courts cannot possibly satisfy the principle of complementarity. I will explain why in a post in the next couple of days.

At a joint press conference with Paul Kagame yesterday, President Bush was asked whether he would be willing to send U.S. troops to Darfur to help stop the systematic violence that is being committed there. Here, in relevant part, was his response:

I would say it's like — as I explained to this fellow here — that one of the lessons of the genocide in Rwanda was to take some of the early warnings signs seriously.

Secondly, a clear lesson I learned in the museum was that outside forces that tend to divide people up inside their country are unbelievably counterproductive. In other words, people came from other countries — I guess you'd call them colonialists — and they pitted one group of people against another. And an early warning sign was — and it's hard to have seen it, I readily admit, but I'm talking earlier than 1994, and earlier than the '90s — was the fact that it become a habit to divide people based upon — you know, in this case, whether they were Tutsi or Hutu, which eventually led to exploitation.

Oy gevalt. Where to begin? I guess by giving President Bush his due: yes, Belgium's actions during the 1930s, when it governed Ruanda-Urundi (present-day Rwanda and Burundi) pursuant to a League of Nations Mandate, played an integral role in creating conditions in Rwanda that eventually facilitated the 1994 genocide. As Mark Drumbl explains in Atrocity, Punishment, and International Law:

Belgian colonial administrators took a liking to the Tutsi, whom they treated preferentially. This angered the majority Hutu. In 1933, the Belgian colonial administration passed a law requiring every Rwandan to carry an ethnic identity card. The lines between Tutsi and Hutu, which traditionally had been porous and informal, suddenly became permanent and legalized. The ethnic identity card requirement persisted after Rwandan independence in 1960. Tragically, the continued presence of this requirement accelerated the genocide, insofar as persons unable to produce a Hutu card simply were slaughtered.

In every other respect, however, President Bush's response makes absolutely no sense. There is no question that the colonial powers often created ethnic divisions where previously there were none. But that fact says nothing — literally nothing — about whether it is a good idea for "outside forces" to use their military power to prevent violence between ethnic groups that are already divided. Indeed, it is particularly ironic that the joint press conference was held in a museum dedicated to the 1994 genocide in Rwanda, a genocide that may well have been avoided, or at least reduced in ferocity, had "outside forces" intervened more forcefully. Drumbl again:

The bulk of the peacekeeping effort fell upon the shoulders of the United Nations Assistance Mission in Rwanda (UNAMIR). This was headed by a Canadian, Lt. Gen. Romeo Dallaire, and was constituted by soldiers from several countries. UNAMIR had been present in Rwanda prior to and during the genocide. It's size was reduced in early 1994 with the murder, by Hutu extremists, of a number of Belgian peacekeepers, which prompted the withdrawal of the remaining Belgians. UNAMIR, despite brave and dedicated efforts, was understaffed and crimped by extremely tight rules of engagement that prevented it from fighting back against the genocideal killers or intervening more directly.

Dallaire bluntly has stated that the international community lacked the will to intervene decisively in Rwanda. Although Dallaire communicated to senior UN officials the intelligence he had received from informants well ahead of time that genocide was being planned in Rwanda, institutionally speaking the United Nations remained unmoved. The execution of the actual genocide corresponded closely to what Dallaire had been told months in advance would take place. Dallaire's requests for more forces, better equipment, and a more aggressive mandate went unheeded.

Drumbl then adds what should be obvious to anyone familiar with the situation:

Tragically, over a decade later, dithering now is occurring with regard to peacekeeping and peace-enforcement intervention to mitigate atrocity in the Darfur region of the Sudan.

Let me be clear: the entire international community was responsible for not intervening more forcefully in Rwanda, and the entire international community seems bent on repeating its mistakes in Darfur. (See Peggy's post about helicopters here, for example.)

Nevertheless, statements like President Bush's — statements that call into question the very idea of peacekeeping — only make the situation worse. And they are particularly indefensible coming from a President whose administration is now more than $1 billion behind in its overall UN peacekeeping dues — and whose recent pledge of $100 million for peacekeeping in Darfur is $15 million less than what it already owed the UN for Darfur before the announcement of the joint UN-AU peacekeeping mission.