ICC Rights Watch

ICC Office of the Prosecutor Aims to Strengthen the Investigation and Prosecution of Gender-Based Crimes Through New Policy

By: Remy Kane

Impunity Watch News Staff Writer

THE HAGUE, Netherlands – On December 4, 2023 the International Criminal Court (ICC) Office of the Prosecutor (OTP) published a new policy focused on gender-based crimes (GBC), including those that are sexual and reproductive in nature, along with crimes that may not traditionally be considered GBC. These crimes often manifest as war crimes, crimes against humanity, and acts of genocide. The Policy takes a “survivor-centered, trauma-informed approach” to the investigation and prosecution of GBC, aiming to keep victims, survivors, and witnesses at the forefront.

 
Cover Page of the Office of the Prosecutor’s recent policy on addressing and combating gender based violence | Photo Courtesy of the ICC, Office of the Prosecutor
  

Article 54 of the Rome Statute imposes a duty upon the ICC Prosecutor when investigating and prosecuting crimes to “take into account the nature of the crime, in particular where it involves sexual violence, gender violence, or violence against children.” In the near-decade since the 2014 OTP Policy Paper on Sexual and Gender-Based Crimes, it has become evident that fulfillment of this mandate requires greater attention.

Unfortunately, the vast majority of gender-based crimes go without redress. The Policy’s executive summary refers to a “myriad factors including discrimination, stigma, underreporting, and survivors’ reservations about law enforcement and judicial systems” as the reason. In addition, the Policy acknowledges that GBC is often taken less seriously and prosecuted with less zeal than other crimes.

To combat this lack of accountability, the new Policy presents a revamped version of its 2014 counterpart offering greater guidance on how to effectively handle GBC. The Policy sets forth the following objectives:

  1. “to affirm the Prosecutor’s commitment to the rigorous investigation and prosecution of GBC, to help remedy the historical neglect of these crimes;
  2. to clarify key concepts and articulate fundamental principles underlying the Office’s work on GBC, mainstreaming a gender perspective and gender competence throughout the Office;
  3. to integrate a survivor-centred and trauma-informed approach in the Office’s work with victims and witnesses exposed to GBC and other atrocity crimes;
  4. to provide clarity and broad direction as to the interpretation and application of the Statute, the Elements of Crimes and the Rules, at all stages of the Office’s work, so as to ensure the effective investigation and prosecution of GBC throughout;
  5. to contribute to the development of international jurisprudence and best practice regarding accountability for GBC at the ICC and beyond.”

Kim Thuy Seelinger, former Special Adviser on Sexual Violence in Conflict, and the Office of the Prosecutor’s first Senior Coordinator for Gender-based Crimes and Crimes Against or Affecting Children, led the review and drafting process for the Policy. Seelinger is a research associate professor at Washington University in St. Louis’s Brown School as well as a visiting professor at the University’s School of Law. In addition, she is the director of the Center for Human Rights, Gender and Migration at the University’s institute for Public Health. Seelinger noted that the Policy’s survivor-centered, trauma-informed approach is “critical for the well-being of those we engage and also the quality of the evidence we put forward.”

For further information, please see:

ICC – Statement by Prosecutor Karim A.A. Khan KC on New Policy – 5 Dec. 2023

ICC – Policy on Gender-Based Crimes –  Dec. 2023

ICC – Policy Paper on Sexual and Gender-Based Crimes – June, 2014

Seelinger Helps Draft New ICC Policy on Gender Crimes – Dec 11, 2023

ICC Drops 20 Charges of War Crimes and Crimes Against Humanity Against Central African Republic Leader

By: Christina Bradic, Impunity Watch News Staff Writer

The Hague, Netherlands – On October 16, 2023, the International Criminal Court (ICC) dropped war crime charges against Maxime Jeoffroy Eli Mokom Gawaka, of the Central African Republic. This is only the third time in the history of the court that an ICC prosecutor has dropped a criminal case.

 
Maxim Mokom in October 2020, when he was Minister of Disarmament, Demobilization, Reintegration and Repatriation (DDRR) in the Central African Republic | Photo courtesy of Justice Info, Minusca
  

On March 14, 2022, Mokom was arrested in Chad. Authorities subsequently surrendered him to the ICC. Prior to dropping his case, Mokom was facing twenty charges of war crimes and crimes against humanity stemming from actions in 2013 and 2014 when Mokom was the National Coordinator of Operations of the Anti-Balaka. Charges included murder, torture, extermination, deportation, and persecution.

In the Central African Republic in 2013, President Francois Bozize was ousted during a coup led by Seleka, an alliance of predominantly Muslim armed rebel groups. In response, Anti-Balaka, an alliance of predominantly Christian militia groups, executed reprisal attacks, including ones targeting Muslim civilians. Violence between the two groups escalated. By mid-May of 2014, it was estimated that thousands of people were killed and more than 750,000 people, majority Muslim, were forcibly displaced. During this time, Mokom, as a leader of Anti-Balaka, was suspected of the war crimes of directing attacks on civilian populations, an attack on humanitarian assistance personnel, and enlisting children as fighters.

The Prosecutor of the ICC informed the judge last week that with the available evidence and changed witness and testimonial availability, there is no longer “reasonable prospect of conviction.”

Mokom has continually denied the court’s charges and any involvement in attacks on Muslim civilians. In a statement he said that he is, “dedicated to the search for peace.” He also holds that he was a refugee in the Democratic Republic of Congo for a significant portion of the period during which the charges occurred. The defense team is considering asking for compensation for the 19 months during which Mokom was held in the court’s detention facility in Scheveningen, The Hague, Netherlands.

A lawyer representing the victims expressed disappointment, calling this outcome, “unfair and a betrayal,” and stating that victims were, “sad and immensely disappointed.” The case prosecutor said in a statement, “I am very conscious that this news may be unwelcome to many survivors and their families, [and] I hope many will understand my legal and ethical responsibilities to be guided by the law and the evidence.”

The action to withdraw charges was without prejudice, allowing a new trial if additional witnesses or evidence becomes available in relation to crimes under the court’s jurisdiction.

For further information, please see:

ABC News – ICC drops war crimes charges against former Central African Republic government minister – 19. Oct. 2023 

Africa News – Central African Republic ex-militia leader released by ICC – 20. Oct. 2023

France 24  –  Ex-CAR militia leader freed by ICC after all charges dropped – 20. Oct. 2023

ICC – Prosecutor withdraws charges against Maxime Mokom in the situation in the Central African Republic – 19. Oct. 2023

Radio France International – ICC releases Central Africa militia leader after dropping charges – 20. Oct. 2023

 

 

 

 

 

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.

ICC – Defense Responds to Prosecution’s Request for In Absentia Confirmation of Charges in Kony Case

By: Nikolaus Merz
Impunity Watch News Staff Writer

THE HAGUE, Netherlands – Following a procedural stay, the Office of Public Counsel for the Defense (“OPCD”) has submitted its response to the Prosecution’s request to hold an in absentia confirmation of charges hearing in the case against Joseph Kony.

Joseph Kony faces 12 counts of Crimes Against Humanity, and 21 counts of War Crimes. If convicted, Mr. Kony’s case would be among the longest in international criminal history. Photo courtesy of Reuters.

The Prosecution’s unprecedented request was filed in November of 2022, and would seek to expand the scope of the International Criminal Court’s (“ICC”) procedural authority.

The Prosecution justified it’s request due to the extraordinary circumstances of Mr. Kony’s case. First, despite concerted efforts of multiple nations, including the deployment of armed forces and money rewards, Mr. Kony’s whereabouts have yet to be discerned. Second, Mr. Kony has remained at large for almost two decades, making him the second longest suspect at large of any international criminal court or tribunal. Third, the Prosecution points out the myriad of policy and judicial interests that would be advanced, including rights of victims, the galvanization of justice, and applicability to similar future circumstances.

The OPCD has responded to the Prosecution’s request with a broadside attack, raising numerous defenses against each of the Prosecution’s arguments. In general however, the OPCD raised two broad theories against the Prosecution’s request.

First, the OPCD argued the Prosecution misinterpreted the procedural justification for its request. The foundational treaty of the ICC, the Rome Statute, allows for in absentia confirmation of charges in two circumstances under Article 61(2)(a) and 61(2)(b). Article 61(2)(a) involves a situation where a defendant waives their right to in-person confirmation and is not relevant here. However, Article 61(2)(b) allows for in absentia confirmation in situations where the defendant “Fled or cannot be found…” and is the supporting procedural clause the prosecution used for its request.

According to the OPCD, the Prosecution has misinterpreted 61(2)(b) to mean simply any situation where a defendant cannot be apprehended or found. However, the structure of the Rome Statute, the intention of its drafters, and academic treatises indicate that 61(2)(b) is only meant to apply after an initial appearance by the defendant before the Court. Or, in other words, 61(2)(b) is meant to apply when a defendant has escaped ICC custody in an intermediary period between initial appearance and confirmation of charges.

In addition, the OPCD also argued that no reasonable efforts had been made to notify Mr. Kony of the charges against him. This argument is also based on interpretation of 61(2)(b) which differs from the prosecution. While 61(2)(b) allows for in absentia confirmation in cases where a defendant has fled or cannot be found, it also requires that reasonable efforts have been made to inform the defendant of the charges against them. The OPCD has argued that the only way for Mr. Kony to be made reasonably aware of the charges against him is to re-issue his arrest warrant and to broadcast it for a designated period of time.

Secondly, the OPCD argued that the Prosecution failed to carry its burden in showing that the circumstances of the Kony case were extraordinary enough to warrant in absentia confirmation of charges. The OPCD argued that the Prosecution gave no evidence to show that in absentia confirmation would support the policy considerations it put forth. Further, the OPCD argued that an extensive period of time to apprehend a suspect does not, by itself, demonstrate cause for in absentia confirmation of charges. Lastly, the OPCD pointed out that judicial and victim considerations had already factored into the Kony case in previous motions and decisions.

It should be noted that the representatives of the victims contacted the surviving victims regarding the Prosecution’s request; they were in unanimous support.

At present, it is uncertain if the ICC will support the Prosecution’s request. While the OPCD made compelling arguments, it is more likely that the Court will be considering the precedential ramifications of its decision more than anything. As the Prosecution stated, there would be potential to use in absentia confirmation of charges in similar future circumstances. To address the elephant in the room, a ruling in the Prosecution’s favor could raise uncomfortable questions for the Court regarding the situation of Mr. Putin, whom the ICC issued an arrest warrant for on March 17th 2023.

For further information, please see:

ICC – OPCD Observations on the Prosecution’s Request to Hold a Hearing on the Confirmation of Charges against Joseph Kony in his Absence – 30 Mar. 2023

ICC – Public Redacted Version of the “Prosecution’s Request to Hold a Hearing on the Confirmation of Charges against Joseph Kony in his Absence” – 24 Nov. 2022

ICC – Situation in Ukraine: ICC judges issue arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova – 17 Mar. 2023

ICC – Victims’ Views and Concerns on the “Prosecution’s Request to Hold a Hearing on the Confirmation of Charges against Joseph Kony in his Absence” – 30 Mar. 2023

Reuters – ICC prosecutor seeks to revive case against fugitive Kony – 24 Nov. 2022

Despite Newly Passed Avenues for Support to the ICC, the Biden Administration and Pentagon are at Odds in Determining Which Documents to Provide the ICC regarding Putin’s Actions in Ukraine

By: Patrick Farrell

Journal of Global Rights and Organizations, Associate Articles Editor

THE HAGUE, Netherlands – As previously reported by Impunity Watch News, the ICC issued an arrest warrant for Putin’s arrest due to his role in the atrocities perpetrated during Russia’s war in Ukraine. The public issuing of the warrant was heralded as a significant step for two major reasons. First, in deterring further crimes in Ukraine, and second, widespread support for the indictment has been characterized as a win for the basic principles of humanity. Yet, the Kremlin has directly condemned the ICC’s actions, labeling them as “outrageous and unacceptable” and even rejected the warrant. Given this response, the ICC is now in need of support for the investigation and eventual prosecution. With that said, the Biden Administration is currently at odds with the Department of Defense in determining the nature of the evidence that the United States will share with the ICC regarding Russian atrocities in Ukraine.

The International Criminal Court. Photo courtesy of Dmitry Kostyukov for The New York Times

Following a National Security Council cabinet-level principals committee meeting on Feb. 3, President Biden has yet to make a decision to resolve the dispute. Although President Clinton signed the Rome Statute in 2000, he never sent it to the Senate for ratification, thus leaving the United States as a non-party to the Treaty. Further, in 1999 and 2002, Congress enacted laws that limited the support that the government could provide the ICC. However, following the bipartisan push to hold Putin accountable, Congress returned to the question of whether to help the ICC. Pursuant to regulations passed by Congress in December 2022, exceptions now exist that allow the U.S. Government to assist with “investigations and prosecutions of foreign nationals related to the situation in Ukraine.” These new laws, including the Consolidated Appropriations Act, the Justice for Victims of War Crimes Act, and the 2023 National Defense Authorization Act contain new elements highlighting the importance attached to supporting accountability for those responsible for atrocities such as these. Most importantly, the amendments in the Consolidated Appropriations Act allow the United States to provide assistance to the ICC Prosecutor’s efforts in Ukraine, even regardless of whether accusations have been made.

Despite these new powers, the Pentagon has maintained the position that the United States should remain separate from the ICC and that the Court should undertake its own investigation, especially since neither the United States nor Russia are parties to the Rome Statute.

Even amidst these internal tensions, national security experts and other government officials see an opportunity in using the ICC as a tool for enforcing accountability. According to John Bellinger, a lawyer for the National Security Council, the U.S. can assist in investigating and prosecuting war crimes by assisting the ICC, which is the successor to the Nuremberg tribunals. In addition, both Senator Lindsey Graham and Attorney General Merrick Garland have reiterated their commitment to helping Ukrainian prosecutors pursue Russian war crimes.

Even after modifications to longstanding legal restrictions which previously stifled America from aiding the ICC, a dispute now exists over whether the U.S. should provide such evidence. Still, it is hopeful that U.S. officials will come to a solution to assist the collaborative effort to bring justice for Russian atrocities committed in Ukraine.

For further information, please see:

Beatrice Nkansah, Impunity Watch News – ‘ICC’ Issues Warrants for Putin’s Arrest Regarding His Role in Russia’s War in Ukraine – 23 Mar. 2023

CNN – ICC issues war crimes arrest warrant for Putin for alleged deportation of Ukrainian children – 17 Mar. 2023

The New York Times – Pentagon Blocks Sharing Evidence of Possible Russian War Crimes With Hague Court – 8 Mar. 2023

Just Security – Unpacking New Legislation on US Support for the International Criminal Court – 9 Mar. 2023