Opinio Juris

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.

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."

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.

"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.

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.

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.

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.

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."

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.

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.

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.

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.

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).

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.

The Supreme Court yesterday upheld the constitutionality of the law allowing for the detention of "unlawful combatants," which Israel uses to hold Hezbollah fighters.

Supreme Court President Dorit Beinisch and Justices Edmond Levy and Ayala Procaccia rejected an appeal by two Gazan Palestinians who were detained after their involvement in terror activity on behalf of Hezbollah was proved.

The Unlawful Combatants Law authorizes the state to detain foreign nationals who belong to terror organizations or have participated directly or indirectly in hostile actions against the State of Israel.

Its goal is to prevent their continued activities.

Beinisch wrote in the verdict that although the law involves substantial harm and the suppression of personal freedom through administrative detention, the harm is proportional.

She noted that it was passed in a "harsh security reality" that justifies the violation of to personal freedom.

"The law's harm to the constitutional right to personal freedom, although substantial, is no greater than necessary," Beinisch wrote.

"Therefore, we have concluded that the law meets the criteria of the limitations ruling and there is no constitutional grounds to intervene in it."

Yet how powerful can this judicial review be? Not only does the Illegal Combatants law create a new category not recognized in international law, it reverses the burden of proof. Once an order is signed by the Chief of Staff, the burden of proof is on the defendant: he has to prove to the court that he is not an enemy combatant. Moreover, he is expected do this when the charge against him is based solely on classified evidence, which he is barred from examining and is therefore unable to challenge. One of the defendants told the court he was arrested in his house, for no reason, and added that if he were exposed to the evidence against him he would be able to respond. But that, of course, did not happen. After the defense lawyers argued their case, they and their clients had to exit the courtroom, leaving the security services’ representatives to reveal their secret evidence to the judge.

Bosnian Serb security chief Stojan Zupljanin, 56, was one of four suspects sought by the tribunal for war crimes in the territory of former Yugoslavia in the 1990s.

Their arrest and handover to the tribunal has been a condition of Serbia's progress towards EU membership.

"There was no resistance during his arrest," said Vladimir Vukcevic, Serbia's chief war crimes prosecutor, who coordinated the operation. "This arrest shows clearly that we are seriously cooperating (with the Hague)."

Zupljanin was found at an apartment about 8 km (5 miles) from the centre of Belgrade by police and security agents and will be extradited within in 72 hours, officials said.

The arrest comes as Serbia, deeply split between nationalists and a pro-EU bloc after inconclusive elections last month, is immersed in intense coalition negotiations.

Officials said Zupljanin had foiled a previous attempt to arrest him in the southern Serbian city of Nis two months ago. His family had publicly called on him to surrender, to spare them further notoriety and financial collapse.

[snip]

The EU welcomed the arrest.

"It is an important step towards full cooperation with (the tribunal), which is key to bringing justice and lasting reconciliation in the Western Balkans region," EU Enlargement Commissioner Olli Rehn said in a statement.

In Washington, the State Department also praised Serbia.

"His arrest is another positive step towards insuring those responsible for war crimes committed in the former Yugoslavia are held accountable," said State Department spokesman Gonzalo Gallegos.

The U.S. hoped the arrest of Mladic, Karadzic and Hadzic, would follow, and "we call on authorities in the region to bring them to justice," he said.

Analysts said Wednesday's arrest may indicate that a pro-European coalition was the most likely outcome of Serbia's month-long government negotiations.

"It might also be seen as an announcement that it's more realistic to have a government that will follow a pro-European path," said political analyst Zoran Stojiljkovic.

The Democratic party leading the pro-Western bloc said the arrest signalled Serbia may gain EU candidate status by the end of the year. The Radical party, spearheading the nationalist grouping, slammed it as a black page in Serbia's history.

Navy Lieutenant Commander Bill Kuebler said in a statement sent to reporters he considers the notes crucial to the defense of his client, Canadian Omar Khadr, during his upcoming murder trial by a special military tribunal at the US naval base.

Kuebler said the instructions were handed down to interrogators from the US Department of Defense as part of a standard operating procedure or "SOP" directive that he obtained from prosecutors last week.

If they were carried out, US interrogators may have "routinely destroyed evidence" that might have been used to defend the Khadr and other detainees, Kuebler charged.

"If handwritten notes were destroyed in accordance with the SOP, the government intentionally deprived Omar's lawyers of key evidence with which to challenge the reliability" of alleged confessions made to military interrogators, Kuebler said.

He cited in particular one passage of the directive to military interrogators stating that "this mission has legal and political issues that may lead to interrogators being called to testify."

"Keeping the number of documents with interrogation information to a minimum can minimize certain legal issues," the policy statement said, according to Kuebler.

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.

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.

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.

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.

• 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 Wall Street Journal published a scathing editorial today blasting the military and civilian defense attorneys it portrays as unreasonably obstructing the capital military commission prosecutions of high value terrorists, including alleged 9/11 mastermind Khalid Sheikh Mohammed (KSM). It is not surprising that a paper noted for its politically conservative editorial stance should defend the government's general approach to the so-called "War on Terror." But it is disappointing to see the editors of a paper that is generally well regarded for the basic quality of its journalism get so many points of law, history, and fact wrong, as well as to question the integrity of so many career military lawyers and judges. It is also ironic to see how far the editors have shifted their views on the role of law and justice since the time of the trial they hold up as a prototype.