ICC Rights Watch

Appellant’s Brief Released in Ntaganda Case

By: Andrew Kramer

Impunity Watch Staff Writer

THE HAGUE, The Netherlands – On April 8, 2020, the International Criminal Court (“ICC”) released the public redacted appellate brief of former Congolese militia leader and convicted war criminal Bosco Ntaganda. The brief was originally filed on February 10, 2020 but was unavailable to the public. Ntaganda is currently appealing only his 30-year sentence of imprisonment.

Bosco Ntaganda looks on in an ICC courtroom during trial. Photo Courtesy of CNN.

Ntaganda raised twelve grounds on appeal, generally asserting that the Trial Chamber failed to assess mitigating factors properly when determining his sentence. Grounds one through four claim the Trial Chamber failed to properly assess Ntaganda’s “limited” degree of participation in various crimes committed, including rape and sexual slavery. Grounds seven through twelve claim the Trial Chamber failed to properly assess mitigating conduct of Ntaganda, both during the commission of the crimes and in the courtroom. These grounds assert the Court did not properly consider that Ntaganda saved the lives of enemy soldiers, protected civilians from attacks on occasions, protected an individual from harm, contributed to reconciliation with the Lendu community, and cooperated with the Court. 

The remaining grounds assert the Court erred in assessing aggravating factors. Ground five asserts the Court considered an improper aggravating circumstance in determining its sentence, which it claims fell outside the scope of the crimes charged. Ground six asserts the Court “double-counted” certain aggravating factors to arrive at its sentence.

This is a robust brief submitted on behalf of Ntaganda. While he may find little sympathy from the Appeals Chamber for his “limited role and knowledge” in crimes of sexual violence and slavery, a merit which the Court may more thoroughly address is the question of what constitutes a proper aggravating factor. The degree of relation of the factor to the crime, relations to an uncharged crime, and how to apply the factor in a sentencing decision are all areas which the Court might provide clarity.

There is not much precedent for the appellate process of the ICC. Only two other cases have reached decision by the Appeals Chamber, both of which confirmed the Trial Chamber’s findings. In the only appellate decision, which upheld a sentence of imprisonment, the case of The Prosecutor v. Thomas Lubanga Dyilo, the Appeals Chamber declined to reduce a prison sentence, partially because the appellant had already served most of it. If the present case reaches a decision on the merits, it could solidify sentencing procedure, and depending on the outcome, empower or restrain the Trial Chambers in their sentencing decisions.

Once the Prosecutor responds to the Appellant’s brief, a hearing date will be set. The COVID-19 outbreak will likely slow progress of this appeal process, as all ICC staff members based in The Hague will be working remotely until at least April 28.  

For further information, please see:

International Criminal Court – Public Redacted Version of “Sentencing Appeal Brief” – 10 Feb. 2020

International Criminal Court – Case information Sheet: Situation in the Democratic Republic of the Congo – 7 Nov. 2019

International Criminal Court – The Prosecutor v. Thomas Lubanga Dyilo – 15 Dec. 2017

ICC Presidency Sets Chamber for Yekatom and Ngaïssona Trial

By: Andrew Kramer

Impunity Watch Staff Writer

THE HAGUE, The Netherlands – On March 16, 2020, the Presidency of the International Criminal Court (“ICC”), the administrative organ of the ICC, issued a decision constituting Trial Chamber V. This decision referred the case of The Prosecutor v. Alfred Yekatom and Patrice Edouard Ngaïssona to Trial Chamber V.  The Presidency appointed Judge Bertram Schmitt, Judge Péter Kovács, and Judge Chang-ho Chung to oversee the trial. 

Patrice Edouard Ngaïssona (left) and Alfred Yekatom (right) in pretrial proceedings before the ICC. Photo Courtesy of the International Criminal Court.

This decision follows a relatively short pre-trial phase in which two separate cases were brought before Pre-Trial Chamber II on November 23, 2018 (Yekatom), and January 25, 2019 (Ngaïssona).  On February 23, 2019, Pre-Trial Chamber II joined the cases in order to enhance the fairness and expeditiousness of proceedings, reduce the duplication of evidence, and eliminate inconsistency in presentation.  It is not uncommon for the pre-trial phase of some cases to last several years. 

On December 11, 2019, Pre-Trial Chamber II partially confirmed the charges of war crimes and crimes against humanity brought against Yekatom and Ngaïssona.  The two militia leaders from the Central African Republic (“CAR”) are accused of being involved in a widespread attack on the Muslim civilian population of the country between September 2013 and December 2014.  Among other crimes, Yekatom and Ngaïssona are specifically accused of murder, rape, intentionally directing an attack against a building dedicated to religion, forcible transfer of population and displacement of the civilian population, severe deprivation of physical liberty, cruel treatment, and torture.

This case has presented unique challenges for the ICC.  In a previous pre-trial appeal, The Prosecutor requested additional time to gather witnesses because this case is larger than most that the ICC has previously handled. Larger cases tend to require more witnesses, which in turn requires more protective measures, and more information to review.  However, as the Court noted, the security situation in the CAR is particularly unreliable, and the issue of witness protection has influenced the process of gathering evidence.  For example, the Court has conditioned the authorization of arrest warrants on whether witnesses could be adequately protected.

Moving forward, Trial Chamber V will hold status conferences, confer with the parties and participants, set the trial date, and determine the procedures necessary to facilitate fair and expeditious proceedings.  At trial, the Prosecution must prove the guilt of the accused beyond a reasonable doubt.  There is no separate jury in the ICC; the three judges issue a verdict, and if guilty, a sentence. 

For further information, please see:

International Criminal Court – Case Information Sheet: Situation in Central African Republic II – 17 Mar. 2020

International Criminal Court – Yekatom and Ngaïssona case: ICC Presidency constitutes Trial Chamber V – 17 Mar. 2020

Coalition for the International Criminal Court – ICC Pre Trial Chamber II confirms charges against Alfred Yekatom and Patrice-Edouard Ngaïssona – 17 Dec. 2020

ICC Authorizes Investigation into Afghanistan

By: Andrew Kramer

Impunity Watch Staff Writer

THE HAGUE, The Netherlands – On March 5, 2020, the Appeals Chamber of the International Criminal Court (“ICC”) authorized the Prosecutor to begin investigations into alleged war crimes and crimes against humanity committed in Afghanistan dating back to May 1, 2003.  All sides of the armed conflict may now be subject to investigation.

A crater caused by a car bombing in Kabul, Afghanistan. The Taliban claimed responsibility for the attack. Photo Courtesy of the New York Times.

This judgement amended a previous decision of Pre-Trial Chamber II, which had unanimously rejected the Prosecutor’s previous request for authorization to conduct an investigation on April 12, 2019.  Pre-Trial Chamber II determined that an investigation into the Situation in Afghanistan would not serve the interests of justice, and successful investigation and prosecution would be unlikely.  In the resulting appeal of this decision, the Appeals Chamber found that the Pre-Trial Chamber erred in considering the “interests of justice” factor.  According to the Appeals Chamber, the Pre-Trial Chamber should have addressed only whether there was a reasonable factual basis for the Prosecutor to proceed with an investigation. Additionally, the Appeals Chamber found that the Prosecutor had indeed met that burden during the Pre-Trial proceedings.

This decision has drawn criticism from the United States government, who may now be the subject of prosecution in the Court.  The United States is not a state party to the ICC and has never been since the Court’s inception. While speaking with reporters in Washington, U.S. Secretary of State Mike Pompeo called the ruling a “truly breathtaking action by an unaccountable, political institution masquerading as a legal body.”  Last year, the United States government revoked the visa of ICC chief prosecutor Fatou Bensouda after she indicated her intentions to pursue the case. Pompeo previously stated the United States would revoke the visas of any staff involved with prosecuting war crimes in Israel, as well.

The Appeals Chamber decision has furthered the Court’s goal of becoming a truly independent body, and holding any nation accountable for its actions, however upsetting the United States may cause allied nations to distance itself from the Court.  While other United States administrations have been cautiously neutral in supporting the ICC, the Trump administration has taken a firm stance against the Court and its legitimacy. The absence of any significant enforcement mechanism in the Court leaves the ICC only as powerful as the member nations deem it to be.  If the United States chooses to not comply with ICC demands, it may frustrate prosecution attempts with little recourse, and delegitimize the Court.

For further information, please see:

International Criminal Court – Appeals Chamber Decision on the Situation in Afghanistan – 5 Mar. 2020

International Criminal Court – ICC Appeals Chamber Authorises the Opening of an Investigation – 5 Mar. 2020

The New York Times – I.C.C. Allows Afghanistan War Crimes Inquiry to Proceed, Angering U.S. – 5 Mar. 2019

International Criminal Court – ICC Judges Reject Opening of an Investigation Regarding Afghanistan Situation – 12 Apr. 2019

ICC to Accept Amici Curiae for Jurisdictional Issue in Palestine

By: Andrew Kramer

Impunity Watch Staff Writer

Demonstrators outside the International Criminal Court in The Hague calling for the Court to prosecute the Israeli military. Photo Courtesy of the Guardian.

THE HAGUE, the Netherlands – On February 20, 2020, Pre-Trial Chamber I of the International Criminal Court (“ICC”) issued a decision granting the requests of 43 parties to submit amici curiae briefs regarding the Situation in the State of Palestine. The parties, representing nations, esteemed professors, human rights organizations, and legal associations, have until March 16, 2020 to file their observations.  

Amici curiae, literally “friends of the court,” are individuals or groups who are not parties to the case, but which have a strong interest in the matter.  Courts may authorize an individual or group to become an amicus curiae, and submit information or advice regarding issues in the case.

In the decision, the Court limited the scope of submissions only to the issue of the Court’s jurisdiction in Palestine, specifically the territories of the West Bank, East Jerusalem, and Gaza. At the root of the issue is whether Palestine is a sovereign state capable of granting the ICC jurisdiction over its territory. 

Although Palestine acceded to the Rome Statute, the ICC’s founding document, Palestine’s recognition as a sovereign has been fiercely contested.  While 138 of the 193 United Nations member states recognize the sovereign, the State of Palestine is not currently recognized by any North American country, Australia, and most of Western Europe.

Each of the seven countries which have requested leave to file an amicus brief indicated an intention to argue that the ICC does not have jurisdiction in Palestine.  Even countries which have previously recognized the State of Palestine, such as Brazil, doubt the Court’s jurisdiction there.  These countries reason that the ICC should only be involved in cases where jurisdiction is undisputed, and indicate an unwillingness to “politicize the Rome Statute.”  This stance has drawn criticism from many pro-Palestine individuals and organizations, which argue opponents to ICC jurisdiction are attempting to shield Israel from the possibility of international criminal prosecution for offenses allegedly committed on Palestinian territory.

This issue of jurisdiction regarding the Situation in Palestine could prove to be a pivotal decision for the development of the ICC.  A ruling in favor of jurisdiction would be an ambitious step for the Court in prosecuting human rights offenses, but may cause the Court to fall out of favor with the Western nations which largely comprise it.  Alternatively, while a ruling against ICC jurisdiction would be consistent with views of the nations who do not recognize Palestine, it could set the precedent that the ICC will only respond to the complaints of territories which are unequivocally sovereign.  This could leave individuals who have suffered human rights offenses in unrecognized territories without recourse.

For further information, please see:

International Criminal Court – Court Records: Situation in the State of Palestine – 20 Feb. 2020

International Criminal Court – Decision on Applications for Leave to File Observations – 20 Feb. 2020

International Criminal Court – Palestine: Preliminary Examination – 28 Jan. 2020

United Nations – Status of Palestine in the United Nations – 26 Nov. 2012

ICC to Allow Victim Participation in Ntaganda Appeal

By: Andrew Kramer

Impunity Watch Staff Writer

THE HAGUE, Netherlands – On February 13, 2020, the Appeals Chamber of the International Criminal Court (“ICC”) issued a decision authorizing the 2,129 victims who participated at the trial of Bosco Ntaganda to present their views and concerns regarding his appeal.  The victims, through their legal representatives, have 30 days to file their observations in respect to their personal interests in the issues on appeal.

Former Congolese military leader Bosco Ntaganda sitting before the International Criminal Court. Photo Courtesy of The Guardian.

Article 68(3) of the Rome Statute allows for victim participation at all stages of proceedings in the ICC, however it defers to the Court to determine what stages are appropriate for each case.  According to the Statute, victim participation must not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.

Victim participation is a crucial aspect of the ICC judicial process, however it carries great risk.  Participation gives victims a voice in proceedings, and allows the Court to gather a better understanding of the truth.  In the context of sentencing decisions, participation provides the Court with a firsthand account of the magnitude of a convict’s actions.  Because of this, victims may be subject to intimidation and violence. While the ICC does employ protective measures for witnesses and victims in the courtroom,  the witness protection program is limited. The Court often operates far from the home countries of witnesses and victims, and protection after proceedings largely relies on agreements between the ICC and national security programs.

After victim observations have been filed, Ntaganda and the Prosecutor will have an opportunity to respond to them, and the appellate process will move forward.  The Appellate Chamber of the ICC consists of a panel of five judges.  Among their responsibilities, the appeals judges may confirm, reverse, or amend a decision of guilt or innocence, ensure the sentence is proportionate to the crimes, and revise a final judgement of conviction or sentence if new evidence is later found.

Ntaganda is appealing the entirety of his conviction decision, as well as his sentence. On July 8, 2019, Trial Chamber VI convicted the former Congolese general of 18 counts of war crimes and crimes against humanity, committed in Ituri, Democratic Republic of the Congo, from 2002-2003.  He is only the fourth person to be convicted of international crimes by the ICC, and the first to be convicted of sexual slavery. On November 7, 2019, he was sentenced to a total of 30 years of imprisonment.

The Prosecution has also filed an appeal, asserting the Trial Chamber made errors of law which led to the acquittal of Ntaganda of criminal responsibility for attacks of a church in Sayo and a hospital in Mongbwalu.

For further information, please see:

International Criminal Court – Case Information Sheet: Situation in the Democratic Republic of the Congo – 7 Nov. 2019

International Criminal Court – Prosecution Notice of Appeal – 9 Sept. 2019

International Justice Monitor – Ntaganda to Appeal ICC Conviction – 11 July 2019

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

Coalition for the International Criminal Court – Is Enough Being Done to Protect ICC Witnesses? – 18 May 2015