A Bittersweet Verdict in the Case of Mathieu Chui

Mathieu Chui, acquitted of war crimes and crimes against humanity
--AFP

Not Guilty.  The verdict came on December 18, acquitting Congolese militia leader Mathieu Ngudjolo Chui of 9 counts of war crimes and crimes against humanity, including sexual slavery, intentional attacks against civilians, and the use of child soldiers. The verdict--only the second in the court's history--is surely a relief to Mr. Chui, who since the trial's beginning has asserted his innocence, but it is a sharp blow to the ICC prosecutor, Fatou Bensouda, and her team.

The verdict was not the result of a particularly strong defense, nor convincing evidence to support the accused's claims of innocence. Rather, it was a failure of the prosecution to prove his guilt beyond a reasonable doubt, as is required in any ICC case. Presiding judge Bruno Cotte noted the witness testimonies as "too contradictory and too hazy," ordering the immediate release of Mr. Chui.

Judges Bruno Cobb and Christine Van Den Wyngaert
stand at the reading of the verdict
--Reuters

This trial's disappointing conclusion serves as a wake-up call to the Office of the Prosecutor. If the court is to maintain the trust of victims such as those in the Democratic Republic of the Congo, the prosecutor must significantly raise the quality of its investigations. In these crucial early years of the ICC, it cannot afford to have a 50% rate of acquittal. Resources are limited, as is the political will for international justice. The international community, as well as the victims of lager-scale atrocities, must see results.

But this verdict also has an up-side. It has proved (and, unlike the prosecutor, "beyond a reasonable doubt") that the court upholds its stated standard of impartiality. The ruling of "not guilty", in a verdict so highly anticipated by human rights groups, demonstrates that the court's judges will not blindly convict every individual the prosecutor presents. The ICC remains an institution of objectivity. This is a resounding victory for the judiciary. Its challenge now, the responsibility of the prosecutor, is to remain one of efficacy.

Progress for Justice: Why a Second (and Third) Verdict Matters for the ICC

Trial Chamber II of the International Criminal Court has announced its decision to halt trial proceedings for Mathieu Ngudjolo Chui and Germain Katanga of the Democratic Republic of the Congo. The judges are set to deliver their verdict on December 18. The two men, whose trials have taken place in a joint session, have been charged on 10 counts of war crimes and crimes against humanity. Among these are rape, murder, sexual slavery, pillaging, directing attacks on civilians, and the use of child soldiers.

In March the ICC made history when it delivered its first verdict against Thomas Lubanga, convicting him for the enlistment and use of child soldiers in hostilities. But the next two verdicts will solidify the ICC's reputation as a court that brings results, and bring it one step closer to its founders' goal--to be a court of universal justice, one that not only punishes crimes, but deters them.

The next two verdicts, with the Lubanga case still fresh in the minds of the international community, will give pause to those who would commit atrocities. The verdicts will demonstrate that the court is not purely symbolic. Even without the support of the United States, the ICC can be a practical tool for maintaining peace and justice.

A New State Party? The Status of Côte d'Ivoire

After taking steps in late September to ratify its constitution, Côte d'Ivoire (otherwise known as the Ivory Coast) could become the newest member of the International Criminal Court. 121 countries have ratified the Rome Statute to date, making them State Parties to the ICC. Of this number, 32 are from Sub-Saharan Africa. With the renewed possibility of a ratification by Côte d'Ivoire, both of these numbers are likely to grow in the coming months.

Ivory Coast is likely to ratify the Rome Statute,
becoming the 122nd State Party to the ICC
--BBC News

The Ivory Coast ceded jurisdiction to the court in 2003, but until recently the ratification process has gained little traction. This is partly due to the election crisis in 2010, which led to the 2011 civil war and an investigation by the ICC. Laurent Gbagbo, the former Ivorian president who refused to step down after losing the election, is awaiting trial in the Hague on charges of rape, murder, and other crimes against humanity.

As the country regains stability under its new president Alassane Ouatarra, its people are looking toward the future, recognizing the need to become full members of the court. As stated in an Ivorian press release, once the ratification process is completed, Côte d'Ivoire can "finally sit among the democratic nations fighting for effective, fair and impartial international criminal justice".

Militaries Respond to ICC, Demobilize Child Soldiers

--globalsecurity.org

--IRIN

Sudan's Justice and Equality Movement (JEM) is the latest in a series of military groups to ban the conscription, recruitment, and use of child soldiers.  On September 17, the rebel group issued an order banning the practice in accordance with international law.  The order includes a demobilization of all child soldiers currently serving in the JEM military.

JEM's order is not an isolated incident.  Governments, militias, and rebel groups have been issuing such orders in growing numbers.  The government of Myanmar signed a similar agreement on June 27, and Somalia's Transitional Federal Government on July 3.

Lubanga on trial in the Hague
--amsterdamnews

These acts follow the March 14 conviction of Thomas Lubanga by the International Criminal Court (ICC).  Congolese warlord and founder of the Union of Congolese Patriots (UPC), Lubanga was found guilty on charges of conscription, recruitment, and use of child soldiers as part of his rebel group in the Democratic Republic of the Congo.  The Lubanga trial, the ICC's first conviction in its 10 year existence, sent a strong message to military leaders who would use children as part of their military campaigns--a message that they would be held accountable for their actions.

JEM's latest announcement, as well as those in Somalia and Myanmar, are clear signs that the ICC message got through.  Prosecution and justice for these crimes is no longer an abstract, symbolic, or distant affair.  It is real and it has arrived.  When the ICC was established, its supporters believed that by holding international criminals accountable, they could deter future atrocities.  This certainly seems to be the case.

Bush, Blair, and Iraq: Aggression and the Limits of Justice

Former British Prime Minister Tony Blair (left) and
former US PresidentGeorge W. Bush (right), close allies during
2003 invasion of Iraq    --nickread.co.uk

In the wake of South Africa's Discovery Invest Leadership Summit, calls have increased for former US President George W. Bush and former British Prime Minister Tony Blair, the latter of which spoke at the summit, to be tried at the International Criminal Court for the 2003 invasion of Iraq.  Pressure intensified after Archbishop Desmond Tutu, slated to speak alongside Blair, refused to attend the summit, stating his view that the former leaders used Iraq "to behave like playground bullies and drive [the global community] further apart".

Ultimately, Tutu and many others are pointing out what they see as imbalances in the system of international law--war and aggression are denounced and punished when conducted by less powerful states, but those at the top of the international pecking order seem to be immune to the same pressures.  While basis may exist for Tutu's claims, the torch will not be taken up by international institutions--especially the ICC.  This is not because of bias or political fear; his voice will not fall on deaf or unwilling ears.  The ears of the institution are active, but the hands are immobilized.

In the case of Bush, he cannot be tried because neither the United States nor Iraq is party to the Rome Statute governing the ICC.  Absent a Security Council Resolution, one of these states must be a member for the court's jurisdiction to apply (see our earlier post on Syria).

Former South African Archbishop
Desmond Tutu, who recently accused Blair
of crimes against world peace --Associated Press

But what about Blair?  The United Kingdom has ratified the Rome Statute and a crime by any state party national can be prosecuted by the court.  As mentioned, what Desmond Tutu is denouncing is the crime of aggression, loosely defined as unwarranted military action of one state against another.  The crime of aggression is, indeed, a key part of the Rome Statute.  Unfortunately, the court's jurisdiction on this particular offense will not apply until at least 2017, and only then after a sufficient number of states ratify and agree on a definition for the crime.

The implication is that even with the strongest international pressure, Blair and Bush cannot be brought before the ICC for their involvement in Iraq, at least in the form of current accusations.  For now it is not a matter of unfairness, but a matter of jurisdiction.

Tied Hands: The Problem with Syria

A protestor burns an image of Syrian
President Bashar al-Assad  --Associated Press

The conflict in Syria has escalated out of control.  Death toll estimates since the conflict started range from 17,000 to 25,000, many of them children and civilians.  Peace talks have broken down and states are left with few options in dealing with the rogue state.  Syrian protestors and global advocates are calling for Assad to be brought before the International Criminal Court in the Hague.

So the question is: why hasn't he been?  After all, the action taken by the Assad government is exactly the sort of case the ICC was created to prosecute.  A special UN commission has even concluded that Syria's military actions amount to war crimes under international law.  Misconceptions abound about why the ICC hasn't taken action (a biased court, lack of functionality), but ultimately it's a question of jurisdiction.

According to the Rome Statute, on its own the ICC can prosecute under 3 circumstances:

1. The individual who committed the crimes is a national of a State Party (A State Party is one that has ratified the Rome Statute and submitted to the ICC's jurisdiction)
2. The individual committed the crimes on the territory of a State Party
3. A non-State Party has accepted the jurisdiction of the court in a certain case

This presents a problem for the court: how to prosecute crimes committed by a belligerent non-State Party such as Syria?  In an instance such as this, jurisdiction must be handed to the court by a UN Security Council Resolution, meaning that all 5 permanent members of the Council must agree unanimously.

This is not impossible.  It's happened twice before, in the cases of Libya and Darfur, Sudan.  But in the Syrian situation, Russia, a member of the Council, has insisted on avoiding condemnation of its close Middle Eastern ally, even amid accusations of propping up the corrupt regime.

yourmiddleeast.com

The humanitarian crisis in Syria points out the flaws of our current international system.  For decades, reformers have pointed out the inherent bias in the UN Security Council.  Close allies of the 5 permanent members (China, Russia, US, France, and Britain) are rarely held accountable.  And while the ICC and its supporters have fought hard (with some success) to escape the bias of the Council, its hands will continue to be tied until all states sign on to the court.

121 countries are currently parties to the ICC, and the largest proportion of unbound states reside in the Middle East.  Many of these (like Syria) are unlikely to sign on until further democratization occurs.  But the big players must set an example.  Europe has been a staunch supporter of the court from the outset; so have Japan, Brazil, and South Africa.  Still, some of the most important supporters are missing: Russia, China, and the United States.  The US has warmed up to the court since the days of the Bush administration, but the time has come to set an example.  The time has come to embrace international justice and move a little bit closer toward preventing another Syria.

ICC Makes Strides in Gender Equality

In its 10 years of functionality the International Criminal Court, which has the authority to prosecute a wide variety of gender-based crimes, boasts an extraordinary record of gender equality within its walls.  Of the 18 judges sitting on the court, 10 are female.  This sort of gender representation is encouraged in the Rome Statute, the court's founding document.  In a further display of equality, the court recently elected Gambian lawyer Fatou Bensouda as the first female ICC Prosecutor, following the term of former (and first) Prosecutor Luis Moreno Ocampo.

voiceofunity.com

Yesterday (Aug 21) marked an important event in the continuation of this tradition when Bensouda announced the appointment of Brigid Inder as Special Gender Advisor.  According to an Office of the Prosecutor press release, "[Inder's] immediate priority will be to further strengthen the institutional approach to a range of gender issues and support office-wide strategic responses to gender-based crimes."

 Inder, from New Zealand, brings to the office an extensive background in gender-related issues.  Previously, she has taken on important roles in organizations such as the Association for Women's Rights in Development and Women's Initiatives for Gender Justice.  The addition of her expertise to the court will no doubt further gender justice worldwide.  Read the full press release here