ICC Rights Watch

The ICC’s Pre-Trial Chamber Confirms Al Hassan’s Charges

By: Madison Kenyon

Impunity Watch Staff Writer 

TIMBUKTU, Mali — On September 30, 2019, the Pre-Trial Chamber I of the International Criminal Court (“ICC”) issued a unanimous decision confirming the charges brought against Al Hassan Ag Abdoul Aziz (“Al Hassan”). These charges include both crimes against humanity and war crimes. This decision, however, merely commits Al Hassan to trial before the Trial Chamber, it does not necessarily confirm he is guilty.

Al Hassan sitting before the International Criminal Court. Photo courtesy of the ICC.

These charges arise from Al Hassan’s involvement with the Islamic militant group, Ansar Dine. This rebel group took control of Timbuktu in 2012 and enforced strict religious rules, including the ban of music and the destruction of non-Muslim religious sites. Al Hassan became the de facto chief of police and oversaw the enforcement of these rules. While serving as chief of police, Al Hassan allegedly also forced hundreds of women into sexual slavery.

The ICC issued a warrant for Al Hassan’s arrest on March 27, 2018 and he surrendered to the ICC four days later, on March 31. The hearing in front of the Pre-Trial Chamber occurred between July 8 and July 17, 2019. During the hearing, the prosecutor introduced the specific crimes Al Hassan is charged with, most of which stem from the widespread and systematic attack by armed groups against the civilian population of Timbuktu between April 1, 2012 and January 28, 2013, and include torture, rape, sexual slavery, cruel treatment and other inhumane acts, such as forced marriages and persecution. The prosecutor emphasized that due to Al Hassan’s actions and Ansar Dine’s control of Timbuktu, the civilians of Timbuktu “were subjected to a climate of constant fear and repression.”

Many nonprofit organizations are quite happy with the Pre-Trial Chamber’s decision in confirming these charges. For example, Melinda Reed, the Executive Director of Women’s Initiative for Gender, stated, “[This decision] is another step in a positive evolution. Every decision matters. We are writing the jurisprudence of the future now, so every case and every step is extremely important with regards to gender based and sexual crimes.” However, many organizations believe the ICC is not doing enough, and rather they criticize the court for going after Al Hassan because he is an intermediate leader of Ansar Dine and not a high-level person of this rebel group.

Although a trial date has not yet been set, the Pre-Trial Chamber has authorized 880 victims to participate in the trial and provide testimony against Al Hassan. Thus, many should expect a long and emotional trial.

For further information, please see: 

ICC – Al Hassan Case: ICC Pre-Trial Chamber I Confirms Charges of War Crimes and Crimes Against Humanity and Commits Suspect to Trial – 30 Sept. 2019

ICC – Situation in the Republic of Mali: The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud – 30 Sept. 2019

Reuters – International Criminal Court Puts Mali War Crimes Suspect to Trial – 30 Sept. 2019

Courthouse News Service – Timbuktu Man Fights War Crimes Charges in UN Criminal Court – 11 July 2019

 

The ICC Prosecutor’s Road to Justice for Afghanistan

By: Madison Kenyon 

Impunity Watch Staff Writer 

KABUL, Afghanistan — On September 17, 2019, the Pre-Trial Chamber II of the International Criminal Court (ICC) granted in part the request of the prosecutor for Leave to Appeal the Chamber’s earlier decision, which rejected the prosecutor’s request for authorization to investigate into the situation in the Islamic Republic of Afghanistan. The Pre-Trial Chamber originally rejected this authorization because it believed that an investigation at the current stage of the situation would not serve the interests of justice. Thus, on June 7, 2019, the prosecutor, Fatou Bensouda, filed for leave to appeal this decision.

International Criminal Court’s prosecutor, Fatou Bensouda. Photo courtesy of the ICC.

This procedural history stems from the preliminary examination, which began in 2006, by the Office of the Prosecutor of the situation in Afghanistan. Specifically, the prosecutor examined alleged crimes against humanity and war crimes that have occurred in Afghanistan since July 1, 2002, with particular focus on alleged crimes that occurred on May 1, 2003. The prosecutor asserts that the results of this examination prove the following: (1) crimes against humanity and war crimes by the Taliban and their affiliated network; (2) war crimes by the Afghan National Security Forces, and in particular, members of the National Directorate for Security and the Afghan National Police; (3) and war crimes by members of the United States’ armed forces and the United States Central Intelligence Agency (CIA). Overall, through this examination, the prosecutor determined that there is a reasonable basis to proceed with an investigation into this situation and thus made the request for authorization to investigate on November 20, 2017.

The prosecutor asserts that, at a minimum, the crimes against humanity that have been committed include: murder; imprisonment or other severe deprivation of physical liberty; and persecution against an identifiable group or collectivity on political and gender grounds. Along with this, the prosecutor states that the war crimes that have been committed include: murder; cruel treatment and torture; outrages upon personal dignity; intentionally directing attacks against civilians; intentionally directing attacks against personnel or objects involved in a humanitarian assistance or peacekeeping mission; internationally directing attacks against protected objects; rape and other forms of sexual violence; using, conscripting or enlisting children under the age of fifteen; and killing or wounding treacherously a combatant adversary. Further, regarding the United States’ involvement in the situation in Afghanistan, the prosecutor states that there is a reasonable basis to believe that members of the U.S. armed forces and members of the CIA committed acts of torture, cruel treatment, outrages upon personal dignity, and rape and sexual violence against conflict-related detainees in Afghanistan and other locations.

Although the Pre-Trial Chamber granted the prosecutor leave to appeal its earlier decision, this does not mean that it will also grant the prosecutor authorization to investigate further into the situation in Afghanistan. Due to the evidence produced by the prosecutor from her preliminary examination, if the Chamber again refuses to grant authorization to investigate further, it may leave many to wonder if the court is actually concerned about the “interests of justice” or if it is actually trying to avoid upsetting an international powerhouse like the United States.

For further information, please see: 

International Criminal Court – Afghanistan: ICC Pre-Trial Chamber II Authorises Prosecutor to Appeal Decision Refusing Investigation – 17 Sept. 2019

International Criminal Court – Situation in Afghanistan: Summary of the Prosecutor’s Request for Authorisation of an Investigation Pursuant to Article 15 – 20 Nov. 2017

International Criminal Court – The Prosecutor of the International Criminal Court, Fatou Bensouda, Requests Judicial Authorisation to Commence an Investigation into the Situation in the Islamic Republic of Afghanistan – 20 Nov. 2017

ICC Prosecutor Must Re-examine Attack After Appeal Chamber’s Decision

By: Madison Kenyon 

Impunity Watch Staff Writer 

MORONI, Comoros — On September 2, 2019, the Appeals Chamber of the International Criminal Court (ICC) rejected the prosecutor’s appeal against the decision of Pre-Trial Chamber I on the Application for Judicial Review by the Government of the Union of the Comoros of November 12, 2018. This was a majority decision, however there were two dissenting judges.

Judge Solomy Balungi Bossa presiding over the Appeals Chamber of the International Criminal Court on September 2, 2019. Photo Courtesy of the ICC.

This issue arose from an attack of a vessel ship, known as the Mavi Marmara, that occurred on May 31, 2010 by the Israeli Defense Forces. This ship contained 10,000 tons of humanitarian aid that a group of pro-Palestinian activists were bringing to Gaza. During this attack, nine people were killed and about 50 others injured.

In May 2013, the Union of Comoros, a party of the Rome Statute, sent a referral to the ICC’s Office of the Prosecutor to investigate this attack. However, after a preliminary examination, on November 6, 2014 the prosecutor issued her decision not to investigate any further. She stated that although the acts committed constituted war crimes, which the ICC has jurisdiction over, the acts did not have “sufficient gravity to justify further action by the ICC.” In order for the prosecutor to open an investigation, it is required by the Rome Statute that she conclude that the alleged crimes are of sufficient gravity. Thus, she stated, “…I have to be guided by the Rome Statute, in accordance with which, the ICC shall prioritize war crimes committed on a large scale or pursuant to a plan or policy.”

Although it is the prosecutor’s decision to investigate further into a case or not, on July 16, 2015, Pre-Trial Chamber I of the ICC requested the prosecutor to reconsider the decision not to investigate. Two years later though, on November 29, 2017, the prosecutor reiterated her earlier decision, stating she will not investigate further. Yet, on November 15, 2018, the Pre-Trial Chamber I went one step further, and directed the prosecutor to reconsider her decision.

This decision to direct the prosecutor is what led to the prosecutor’s appeal and this decision by the Appeals Chamber. Due to the September decision by the Appeals Chamber, the prosecutor must now once again reconsider whether she will investigate further into this attack by the Israeli Defense Forces. The Appeals Chamber however, made sure to clarify that this decision does not take away the prosecutor’s power to ultimately decide whether or not to initiate an investigation.

Despite this clarification, this decision by the Appeals Chamber leads one to question whether this is truly the case. It will be interesting to see how the court responds if the prosecutor decides once again not to investigate further.

For further information, please see: 

International Criminal Court – Situation of the Registered Vessels of Comoros, Greece and Cambodia: ICC Appeals Chamber Rejects the Prosecutor’s Appeal – 2 Sept. 2019 

International Criminal Court – Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on Concluding the Preliminary Examination of the Situation Referred by the Union of Comoros: “Rome Statute Legal Requirements Have Not Been Met” – 6 Nov. 2014 

The Guardian – Israeli Attack on Gaza Flotilla Sparks International Outrage – 31 May 2010

 

Bosco Ntaganda Convicted: A Long-Awaited Victory by the ICC

By: Madison Kenyon

Impunity Watch Staff Writer

KINSHASA, Congo — On July 8, 2019, the International Criminal Court (ICC) found Bosco Ntaganda guilty. The Court convicted him of 13 counts of war crimes, including: murder and attempted murder, intentionally directing attacks against civilians, rape, sexual slavery, ordering the displacement of the civilian population, conscripting and enlisting children under the age of 15 years into an armed group and using them to participate actively in hostilities, intentionally directing attacks against protected objects, and destroying the adversary’s property; and five counts of crimes against humanity, including: murder and attempted murder, rape, sexual slavery, persecution, and forcible transfer and deportation. Ntaganda is only the fourth person to be convicted by the ICC and the first person to be convicted of sexual slavery.

Bosco Ntaganda in the International Criminal Court. Photo Courtesy of AP.

Ntaganda’s crimes date back to before 2003. These crimes specifically arise from his involvement with the Patriotic Forces for the Liberation of Congo (FPLC), of which he was the Deputy Chief of Staff and commander of operations. Despite the ICC’s prosecutor beginning her investigation on June 21, 2004, an arrest warrant was not issued until August 22, 2006. The first warrant charged Ntaganda with the war crime of recruiting and using child soldiers. The ICC did not issue a second arrest warrant until July 13, 2012, which was amended to include four additional counts of war crimes and three additional counts of crimes against humanity. The prosecutor later added more crimes.

Even with the addition of these charges to his arrest warrant, the investigative organization, Human Rights Watch, argued that additional charges should have been added for the alleged crimes he committed after 2003. Specifically, Human Rights Watch argued that he should be charged for his actions while he was military chief of staff of the National Congress for the Defense of the People, a military group located in the North Kivu Province in eastern Congo. While in this position, Human Rights Watch documented Ntaganda’s involvement in ethnic massacres, killings, rape, torture, and recruitment of child soldiers. Despite this documentation and the urge by Human Rights Watch, the court did not include these crimes.

In 2012, Ntaganda broke away from the National Congress for the Defense of the People and formed his own coalition, the March 23 Movement (also referred to as M23). During this time, he continued to live freely and visibly in front of the Congolese government. President Joseph Kabila refused to arrest him because he did not want to disrupt the peace of DR Congo. Thus, Ntaganda would have remained free if he had not turned himself over to the ICC on March 22, 2013. He surrendered because he feared the turmoil currently occurring within M23.

After the ICC brought Ntaganda into custody, the judicial process took six years to reach the July verdict due to extensive investigations by both parties, resulting in approximately 69,000 pages worth of evidence. The trial, which took place over the course of 248 hearings, included testimony from 80 witnesses and experts called by the prosecutor, and 19 witnesses called by the defense team. The court also authorized 2,129 victims to partake in the trial.

Although many are celebrating this judgment, this conviction sheds light on some flaws of the ICC. One flaw in particular is highlighted by the view that this conviction may have never occurred if Ntaganda did not surrender himself to the ICC. This situation could prompt the ICC and the international community to consider another means to bring war criminals within its jurisdiction. Solutions to these issues may expedite a path to justice as the court cannot start a trial without the defendant present.

For further information, please see: 

International Criminal Court – Case Information Sheet: Situation in the Democratic Republic of Congo – 8 July 2019 

BBC – DR Congo’s Bosco Ntaganda Convicted of War Crimes by ICC – 8 July 2019 

BBC – Bosco Ntaganda: The Congolese ‘Terminator’ – 8 July 2019

Human Rights Watch – Q&A: Bosco Ntaganda, DR Congo, and the ICC – 2 July 2019