Africa

ICC Presides Over Sudanese War Crime Case

By: Rachel Wallisky

Impunity Watch News Staff Writer

THE HAGUE, Netherlands — The International Criminal Court (ICC) will review war crime charges out of Sudan in The Prosecutor v. Ali Muhammad Ali Abd-Al-Rahman. Ali Muhammad Abd-Al-Rahman, also known as Ali Kushayb, allegedly committed over 30 counts of war crimes and crimes against humanity between August 2003 and April 2004 in Darfur, Sudan. The charges stem from his role as Senior Leader of the Militia, also known as Janjaweed in Sudan, where those forces carried out a widespread and systematic attack against civilians living in Wadi Salih, Sudan.

 
Ali Muhammad Ali Abd-Al-Rahman, pictured in court | Photo Courtesy of the ICC
 

The ICC confirmed the charges against Abd-Al-Rahman, stating, “[t]his attack was carried out pursuant to, and in furtherance of, a State policy to commit an attack against the civilian population in the Wadi Salih and Mukjar Localities…predominantly against civilian members of the Fur tribe.” The charges include: intentionally directing attacks against the civilian population as such, as a war crime, murder as a crime against humanity and as a war crime, pillaging as a war crime, destruction of the property of an adversary as a war crime, other inhumane acts as a crime against humanity, outrages upon personal dignity as a war crime.

The trial began back in April 2022, when the prosecution began presenting its case. The prosecution presented fifty-six different witnesses and finished presenting its evidence on June 5, 2023. The defense presented its opening statement on October 18, 2023. The defense team argued that Mr. Abd-Al-Rahman is not the man that the ICC is looking for and plans to challenge the ICC’s jurisdiction over the case.

On September 15, 2023, the defense submitted a request to admit Ms. Fiona Marsh as an expert witness. The motion argues that Ms. Marsh will testify about two questioned signatures on documents presented in the prosecution’s case. The defense argued that the signatures on two documents submitted by the prosecution were not actually written by Mr. Abd-Al-Rahman, and that “[h]er expert evidence will assist the Chamber by providing the necessary material for it to arrive at a reasoned finding on the authorship of the two questioned signatures.” The Court has not, as of yet, issued a decision on the motion.

The fallout from this attack has continued for twenty years until today. When advocates for the victims of this attack spoke on June 5, 2023, they highlighted the similarities between the situation from 2003-2005 and the present-day situation in Sudan. Given the relationship between the current situation in Sudan and the crimes that Mr. Abd-Al-Rahman is alleged to have been part of, as well as the defense’s theory that Mr. Abd-Al-Rahman is not the leader of the Janjaweed, it will be interesting to track the defense’s arguments as the case progresses.  

For more information, please see:

ICC – Case Information Sheet – The Prosecutor v. Ali Muhammad Ali Abd-Al Rahman, March 2022.

ICC – Corrected version of ‘Decision on the confirmation of charges against Ali Muhammad Ali Abd-Al-Rahman (‘Ali Kushayb’)’ – 9 July 2021.

ICC – Defence Request to Admit Ms. Fiona Marsh as an Expert Witness – 15 Sept. 2023.

ICC – “Opening Statement and presentation of evidence by the Defence in the Abd-Al-Rahman case: Practical information” – 9 Oct. 2023.

ICC – Transcript of Proceedings – 5 June 2023.

Tunisian Nations Denied Suspension of the Decree-Law and Postponement of Elections

By: Rachel H Sanders

Journal of Global Rights and Organizations, Senior Associate Member

BANJUL, The Gambia – Tunisian nationals were denied their application seeking provisional measures to suspend the enforcement of potentially anti-democratic election laws as well as the postponement of the Republic of Tunisia parliamentary elections. The Application was filed against the Republic of Tunisia which had recently received a judgment from the Court on September 22, 2022, ordering that the country restore constitutional democracy. The Tunisian nationals, named Ayadi Fathi, Khlifi Oussama, and Makhloufi Sofiane, were fearful that the President of the Republic of Tunisia was extending his extensive and unchecked powers by implementing “illegal and undemocratic acts which truncated constitutional democracy, leading the country into totalitarianism.”

The African Court on Human and Peoples’ Rights. Photo Courtesy of ACfHPR

The Tunisian nationals claimed that the President of the Republic of Tunisia was attempting to set up a parliament that is completely under his control by abrogating the 2014 Constitution, initiating the dissolution of the provisional body in charge of reviewing the constitutionality of draft laws by the Decree-Law No. 2021-117 of September 22, 2021, and initiating the dissolution the of parliament by Decree-Law No. 2022-309 of March 30, 2022. The claimants alleged a violation of (A) the right to participate freely in the government of their country, protected by Articles 13(1)(2) and 24 of the Charter, Articles 1(1) and 14 of the International Covenant on Civil and Political Rights (ICCPR) and Article 1(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), (B) the right to non-discrimination protected by Articles 2 and 18(3) of the Charter, and Article 2 of the ICCPR, and (C) the right to freedom of association, protected by Article 10(1) of the Charter. The petitioners focused upon challenging Decree-Law No. 2022-55 which amended and supplemented Organic Law No. 2014 of May 26, 2014, on elections and referendums.

In addition, the Tunisian nationals applied for a postponement of the legislative elections scheduled for December 17, 2022. The applicants claimed that “the Tunisian people stand to suffer imminent and irreparable harm in view of the fact that these elections may plunge the country into institutional disorder and political unrest for an unlimited period of time.” Conversely, the Court found a lack of urgency as the application was filed on January 6, 2023. Confusingly, the application and the request for provisional measures were initially filed on January 6, 2020. Despite that, it took until February 2, 2023, for the Republic of Tunisia to be notified. The Court provided the Republic of Tunisia a period to respond on the merits and on the provisional measures respectively within ninety (90) and fifteen (15) days of receipt of notification. The Court also requested that the Republic of Tunisia submit the names of its representatives within thirty (30) days. However, the Republic of Tunisia did not respond to the complaint.

In the end, the Court found against the Tunisian nationals stating that the request did not meet the requirements of urgency or extreme gravity and irreparable harm. The Court emphasized that these two facts are cumulative so that if one of them is lacking, the measure requested cannot be ordered. The Court recalled that urgency, which is consubstantial with extreme gravity, means a “real and imminent likelihood that irreparable harm will be caused before it renders its final decision.” The risk in question must be real, which excludes the purely hypothetical risk and explains the need to remedy it immediately. The Court denied the request to suspend the Decree-Law as the applicants never produced neither any evidence of urgency or extreme gravity nor evidence of irreparable harm, which would result from its enforcement. Due to this, as well the delay in the request for postponement of the election, the Court found that the Tunisian nationals’ request was moot.

The Republic of Tunisia became a party to the African Charter on Human and Peoples’ Rights on October 21, 1986, and to the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights on October 5, 2007.  The Court’s order is provisional in nature and in no way prejudges the Court’s findings on its jurisdiction or on the admissibility and the merits of the Application. A dissenting opinion is being drafted by Bensaoula Chafika,

For further information, please see:

Complaint filed in ECOWAS Court of Justice Against Liberia for Failure to Act upon TRC Recommendations

By: Chezelle McDade

Journal of Global Rights and Organizations, Associate Articles Editor

The Doe Regime in Liberia resulted from the successful coup by Samuel Doe against then-President William Tolbert on April 12, 1980. Doe and his Armed Forces of Liberia (“AFL”) suspended the Liberian Constitution and created an authoritarian regime. Doe’s former ally, Charles Taylor, led a revolt against Doe in 1989 which resulted in Doe’s death and the end of his regime in 1990.  Civil war immediately erupted in Liberia among the warring rebel factions. One attack, which has been called the worst single atrocity in Liberia’s first civil war, occurred on July 29, 1990, at a Lutheran church housing thousands of men, women, and children who were displaced by the war. Troops loyal to the late President Doe bulldozed the doors to the church and proceeded to gun down and hack to death approximately 600 men, women, and children.

 

A survivor of the St. Peter’s Lutheran Church Massacre displays her disfigured hand as the result of injury she sustained from the massacre. Photo Courtesy of Front Page Africa, James Harding Giahyue

Between 1989 and 2003 there were two civil wars in Liberia. Upon their conclusion and pursuant to the Accra peace agreement of 2003, an independent national commission on human rights was created as outlined in the Truth and Reconciliation Act which was passed in May 2005. The task of the resulting Truth and Reconciliation Commission of Liberia (the “TRC”) was to conduct investigations, inter alia, of gross human rights violations from January 1979 to October 2003. The TRC was operational from February 20, 2006, until June 22, 2009, and issued its final, consolidated, unedited report on June 30, 2009. The TRC concluded that several individuals and entities, including the AFL were liable for violations of Humanitarian and Human Rights laws and provided recommendations on accountability through prosecution.

On the basis of the TRC report and the testimony of survivors, a complaint was filed in 2018 against the former colonel of the AFL, Moses Thomas, for his role in the massacre. Summary judgment was granted and damages in the amount of $84 million dollars assessed. Thomas subsequently fled to Liberia, where he currently resides without limitations due to the Liberian Government’s lack of action. On October 4, 2022, the Center for Justice and Accountability along with a pro bono co-counsel filed a complaint with the Court of Justice of the Economic Community of West African States (“ECOWAS”) on behalf of the Global Justice and Research Project (“GJRP”), a Liberian NGO, along with three survivors of the Lutheran Church massacre. The Complaint alleges violations of several articles within various human rights charters and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War and that the Liberian Government failed to conduct the official investigation into the Lutheran Church Massacre, identify those responsible and prosecute as advised by the TRC. The Hearing is scheduled for February 16, 2023, and a decision regarding this remains pending.

 

For further information, please see:

United States Institute of Peace – Truth Commission: Liberia – 20 Feb. 2006

United States Institute of Peace – Truth and Reconciliation Commission of Liberia – Final Report – 3 Dec. 2009

Front Page Africa – US Court Orders Thomas to Pay $84m to Victims of Lutheran Church Massacre; An Angry Thomas Condemns the Ruling – 22 Aug. 2022

Jane W. v. Moses Thomas Complaint – 12 Feb. 2018

Application to ECOWAS Court – 29 Sept. 2022

Maxime Jeoffroy Eli Mokom Gawaka scheduled for confirmation of charges hearing on August 22, 2023

By: Amanda Zumpano

Journal of Global Rights and Organizations, Associate Articles Editor

THE HAGUE, Netherlands -On February 3, 2023, the International Criminal Court (ICC) announced that there would be a confirmation hearing on August 22, 2023 in the case The Prosecutor v. Maxime Jeoffroy Eli Mokom Gawaka. The court believes that a charges hearing in August will be “an appropriate balance between the fair administration of justice and the need to ensure expeditiousness”.

At this hearing, the court will determine if there is enough evidence to establish substantial grounds to believe that Mokom committed each crime that has been charged. The case will be transferred to the Trial Chamber if the cases are confirmed and then trial will commence.

Maxime Jeoffroy Eli Mokom Gawaka appearing before the ICC judges. Picture courtesy of ICC-CPI

Mokom has been charged with crimes against humanity that include murder, extermination, torture and persecution. He has also been charged with several war crimes that consist of intentionally directing an attack against the civilian population, displacement of the civilian population, and mutilation. These crimes were committed mostly against the Muslim civilian population in the Central African Republic (CAR) and took place between December 5, 2013 and December 2014.

On March 2013, rebels known as Seleka seized power in the CAR, and their rise gave power to the Anti-Balaka. Mokom was responsible for coordinating these militias which committed crimes against civilians throughout the country. Tens of thousands of people were displaced due to the Seleka-controlled areas. The government tried to disband the Seleka forces but many ex-members committed counterattacks and caused chaotic violence and a humanitarian crisis in the CAR. UN peacekeepers have also been attacked and fifteen were killed in 2017. The ICC has been investigating the crimes since 2014. The Special Criminal Court (SCC), a UN-backed hybrid court is also permitted to prosecute crimes committed in CAR since 2003.

There was a warrant of arrest issued for Mokom on December 10, 2018 and the ICC took custody of Mokom when the authorities of the Republic of Chad surrendered him on March 14, 2022. The Chamber found reasonable grounds to believe that Mokom committed these crimes with the help of others or by furtherance of a policy that targeted the Muslim population and others perceived to support the Seleka.

The delay in obtaining justice for crimes under international law is often due to the difficulty in executing arrest warrants. Holding Mokom accountable is an important step forward in the fight against impunity in the CAR.

 

For further information, please see:

ICC – The Prosecutor v. Maxime Jeoffroy Eli Mokom Gawaka – 3 Feb. 2023

ICC – Mokom case: Confirmation of charges hearing scheduled for 22 August 2023 – 3 Feb. 2023

ICC – Mokom Case

Amnesty International – Chad/CAR: Maxime Jeoffroy Eli Mokom Gawaka must face justice at the ICC – 15 Mar. 2022

Associated Press – Central African Republic alleged rebel appears at ICC – 22 Mar. 2022

Global Conflict Tracker – Instability in the Central African Republic – 11 May 2022

Reuters – ICC says Central African Republic war crimes suspect surrendered – 15 Mar. 2022

 

From Child Soldier to War Crimes Commander – ICC Confirms Registry Transmission of List of Individuals for Reparation Samples for the Victims of Dominic Ongwen

By: Tracy Acquan

Journal of Global Rights and Organizations, Associates Articles Editor

THE HAGUE, Netherlands– On January 16, 2023, the International Criminal Court (“ICC”) approved a sample list of individuals for reparations relating to the alleged crimes of Dominic Ongwen. The Chamber was fully content that the “assembled sample of 205 victims” was “sufficiently representative of the universe of potential victims [in] regards to gender, age, alleged harm, alleged crimes, and alleged locations” of the crimes.

Children in Barlonyo, Uganda at the site of the war crimes. Photo courtesy of Open Democracy and Flickr/Roberto Maldeno.

This decision comes a month after the Appeals Chamber of the ICC rejected Dominic Ongwen’s appeal of Trial Chamber IX’s decision to find him guilty of war crimes. He was sentenced to 25 years of imprisonment after being found guilty of “61 crimes, committed in Northern Uganda between July 1, 2002, and December 31, 2005.”  

Between the tender ages of nine to fourteen, Ongwen was abducted by the Lord’s Resistance Army (“LRA”) “as he was walking to school in northern Uganda.” As the years went by, he rose in ranks from child soldier to commander in the LRA. Established in 1988 by Joseph Kony, the LRA is a Ugandan rebel group “currently operating in the border region of the Democratic Republic of Congo, Central African Republic, and South Sudan.” The LRA is responsible for displacing and mutilating people, abducting “67,000 youth, including children for use as child soldiers, sex slaves, and porters.”  In March of 2010, Congress passed the “Lord’s Resistance Army Disarmament and Northern Recovery Act of 2009” as a measure to support and assist in efforts to disband the group, protect civilians, and restore peace to the people of central Africa. 

Popularly known as the “White Ant” Ongwen is accused of committing some of the most horrific crimes against humanity which include but are not limited to rape, torture, mutilation, abduction, and recruitment of child soldiers. During his appeal, Ongwen characterized himself as a victim, stating that “I’m one of the people against whom the LRA committed atrocities.” His defense of “mental disease or duress” was insufficient to absolve himself of punishment. Ongwen’s defense was unsuccessful in proving that he lived in a “constant state of fear.” The imminence element of duress requires a showing that the defendant lived with “a threat of death or serious bodily harm” on a “continuing basis.” Ongwen was described by witnesses as a “self-confident commander who had disobeyed orders.” He even had a contentious relationship at times with Joseph Kony.

The ICC’s decision to accept the sample list is a step towards the goal of obtaining reparations for the 4,065 victims of Ongwen’s crimes. After Ongwen’s conviction, many activists feared delays in the reparations phase of the proceedings due to procedural delays. The ICC wanted to accept a sample “sufficiently objective and statistically representative” of the victims. The victims would be randomly selected by the “Registry within five main categories of the victims in the case.” This includes crimes committed in the camp of Pajule IDP, the Odek IDP, Lukodi IDP, sexual and gender-based crimes, and crimes against soldiers. Moving forward the ICC instructs the LRVs to consult with the victims on whether they “consent to their identities being disclosed to the Defense.” Many victims hope that these proceedings will serve as a “recognition of the harms” they have faced at the hands of Dominic Ongwen, “The White Ant.”

 

For further information please see:

BBC-Dominic Ongwen-from child abductee to LRA rebel commander -6 May 2021

Counter Terrorism Guide-Lord’s Resistance Army (LRA)

ICC-Decision on the Registry Transmission of List of Individuals and Relevant Information for Reparations Sample-16 Dec. 2023

ICC-Ongwen case: ICC Appeals Chamber confirms the conviction and sentencing decisions- 15 Dec. 2023

Opinio Juris-Managing Expectations of Victims and Sustaining Community Outreach-11 May 2022

The Conversation – Dominic Ongwen: how the case of a former child soldier exposed weaknesses in international criminal law- 16 Jan. 2023

The White House-Statement by the President on the Signing of the Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act of 2009-24 May 2010