Archive for October, 2010

A Rapid Follow-Up to the al-Bashir in Kenya Saga

So al-Bashir did not go to Kenya today. Instead, the IGAD summit that was initially supposed to take place in Nairobi will take place instead at a date still to be determined in Addis Ababa, in Ethiopia, which is not a State Party to the Rome Statute and therefore is not bound to execute the arrest warrants. At the insistence of the United States, Security Council Resolution 1593, which referred the situation of Darfur to the International Criminal Court, makes that very clear at paragraph 2 (emphasis is mine):

2. Decides that the Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully;

Kenya did respond to Pre-Trial Chamber I’s request (see my previous post) by merely stating that there was no plan for the Sudanese President to come, which was, once the summit was moved to Ethiopia, true.

There’s not much to say here, and perhaps the saga ends here. The Pre-Trial Chamber’s “warning shot” probably did, despite (former) Kenyan Foreign Minister Wetangula’s claims, dissuade Kenya from holding the summit and receiving Bashir.

I did particularly enjoy Mr. Wetangula’s arguments in that article, not only claiming that Kenya did not push for the summit to be held in Ethiopia because of the ICC Judges’ request (to be fair, only the Kenyan authorities know for certain, but that’s very unlikely), but also said some pretty ludicrous things, such as “We have no demands from the ICC and we are not the arresting agents of the ICC so that is not an issue” (oh, really? Just imagine what people like Moses Wetangula would say if ICC investigators conducted an arrest à la Eichmann), and “ICC does not have a hold on Kenya, we are a signatory to a treaty establishing it so we cannot live under fear over a treaty that we are just a party to” (to be honest, I’m not really sure what that means).

As for the “former” in front of Foreign Minister, Mr. Wetangula resigned last Wednesday over allegations of corruption.


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Is the Prosecutor of the ICC Forced to Play Dr. Jekyll and Mr. Hyde?

No, I am not talking about Prosecutor Luis Moreno-Ocampo in person, but of the Prosecutor of the ICC as an institution, and by extension of the entire Office of the Prosecutor (informally known as the OTP).

A recent submission by Mr. Callixte Mbarushimana’s lawyer, Mr. Nicholas Kaufman, has once more raised the issue of the neutrality of the Prosecutor, a matter that has been recurrent in submissions to the Court by Defence Counsels for at least the past six months.

Mr. Callixte Mbarushimana, an alleged leader of the Force Démocratique pour la Libération du Rwanda (FDLR), was arrested only a few weeks ago in France, in accordance with a warrant of arrest issued under seal. Mr. Mbarushimana is suspected by the International Criminal Court of crimes against humanity and war crimes allegedly committed in the Kivus in the DRC in 2009. Following his arrest, both the Registry and the OTP of the ICC issued press releases expressing satisfaction.

It is with the latter that Mr. Mbarushimana’s lawyer takes issue. Read the rest of this entry »

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The al-Bashir in Kenya Saga Continues

Sudanese President al-Bashir present in Nairobi on August 27, 2010 for the promulgation of Kenya’s new constitution (photo by AFP)

The International Criminal Court, in a press release published today, announced that Pre-Trial Chamber I (PTC I) rendered a decision in which it requested that Kenya informs the Chamber by the 29 October about “any problem which would impede or prevent the arrest of Omar al-Bashir in the event that he visits their country on 30 October 2010.”

There has been rumors of late about a potential visit by the President of Sudan, subject to two different arrest warrants issued by the ICC for having allegedly committed war crimes, crimes against humanity and genocide in Darfur, to Kenya again in order to attend an Inter-governmental Authority for Development (IGAD) summit on Sudan, which is supposed to take place on 30 October.

The Court, which was taken by surprise and humiliated in consequence when Bashir was allowed by the Kenyan authorities to visit the country at the end of August 2010 without being arrested – despite the fact that Kenya is a State Party to the Rome Statute (and a situation country to boot) – appears this time to take all necessary precautions to make sure that the same problem does not happen twice. Read the rest of this entry »

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A Rapid Commentary of the Appeals Chamber’s Decision in the Lubanga Case

Thomas Lubanga, left, and Judge Song, on the right. Photo ICC.

As promised last week, I am giving you a rapid commentary of the Appeals Chamber’s decision in the Lubanga Trial at the International Criminal Court. I was in the media center of the ICC when Judge Sang-Hyun Song read out a summary of the decisions (the full, authoritative written version of which you can find here and here), furiously taking notes to send to my employer. I am also sharing a slightly modified version of these with you below.

It was an interesting experience, listening to Judge Song reading the summary of the judgment, surrounded by journalists begging for Lubanga to be released in order to “have a story” – that is, be given a free field day to tear the ICC down in articles in order to sell more papers. Needless to say, they were disappointed by the time Judge Song finished reading the summary of the decision. Read the rest of this entry »

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When International Justice Meets “Foreign” Cultures (Part II) – “Fact-finding Without Facts” by Professor Nancy Combs


The Conference at the T.M. C. Asser Institute, in The Hague

Part II of my posts on the difficulties raised when international justice encounters “foreign” cultures (see Part I here) – or to be more exact, cultures and cultural paradigms it is not familiar with – is due to the fascinating conference I attended this evening at the T.M. C. Asser Institute as part of their Supranational Criminal Law Lectures series, which featured Professor Nancy Combs of William & Mary Law School.

The conference was about Professor Combs’ latest book, titled rather provocatively “Fact-finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions” (Amazon link here, Professor Combs’ presentation of the book over at the IntlLawGrrls blog here). So it was an exercise in self-promotion, but it was so fascinating, Professor Combs’ work is so original and well thought-out, and she is such a great speaker, that I can only forgive her. Besides, everyone’s got to make a living, even academics. And it’s such a pleasure to finally put a face on the articles I’ve read by Professor Combs during my LLM. So yes, I’m quite under the charm.

This post gathers a recollection of what I heard tonight, with the help of my notes. It’s a mix of what Professor Combs said, more or less paraphrased, and even extrapolated at times as I insert some of my own thoughts. I do not speak for Nancy Combs – and be warned that I might have gotten something wrong, or interpreted her words in a subjective and/or incorrect manner. In any case, do not challenge me on what Professor Combs might have said – and if in doubt, I can only recommend that you check out her book. I certainly will.  Read the rest of this entry »

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When International Justice Meets “Foreign” Cultures (Part I) – The ICC & Zaghawa

I just had a full and very interesting day, and I felt like I needed to share some thoughts here on the blog in two different posts – relating to two different events – but that share the same theme: the problems international justice encounters when its meets “foreign” culture.

There is of course a certain amount of irony in the title, as it can be discussed whether “international” justice can encounter a “foreign” anything – that is, until we meet extraterrestrial cultures – but it is hard to deny that for all its international-ness (and it does try to accommodate different legal cultures), international justice, and international criminal justice in particular, rests on Western-standards and concepts of procedure, law, and justice.

Hence, when international justice encounters and has to work with non-Western cultural paradigms, problems prop up. Part II will be particularly more on-topic in this regard, but I feel like Part I relates as well, and so now comes the time that I actually tell you what this is all about. Read the rest of this entry »

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Conference on Fact-Finding in International Law by Nancy Combs tonight in The Hague

Sorry about the late posting, this completely slipped my mind. There’s another conference at the T.M. C. Asser Institute tonight in The Hague, with Professor Nancy Combs.

Here is the summary, from the T.M.C. Asser Institute’s website:

Title: ‘Factfinding in International Criminal Law
Speaker: Nancy Combs
Time: 19.30
Location: T.M.C. Asser Instituut

Registration not needed, seats available on a first come first serve basis

“The presentation will explore the issues raised in Combs’s new book “Fact-finding Without Facts:  The Uncertain Evidentiary Foundations of International Criminal Convictions.”  In particular, Combs will detail the testimonial deficiencies that impede fact-finding at many international tribunals and will consider ways in which those fact-finding impediments can be ameliorated.”

The Grotius Centre for International Legal Studies, the T.M.C. Asser Institute and the Coalition for the International Criminal Court invite you to the Supranational Criminal Law Lecture Series.

The Supranational Criminal Law Lecture Series (SCL Lecture Series), aim to contribute to information-sharing and public discourse on contemporary legal issues, while benefiting from the input of distinguished practitioners and experts in the field. The lecture series are particulary interesting for all professionals working with, or interested, in international legal activities in The Hague. These include lawyers, journalists, diplomats, NGO representatives, LL.M-students, and academics. However, everyone who is interested is welcome to attend.

And for those who have doubts, let me remind you that the Conference is free!

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Inspired by Karl Rove…

As one journalist states – and I agree – “…the United States of America has the moral duty and legal obligation to go after each and every one of those involved in the illegal acts of butchery in Afghanistan and Iraq, following up and holding them responsible for the consequences of these acts and holding accountable each and every person involved in the decision-making process, however high their position in the pyramid may have been.” The notion of command responsibility seems conveniently absent from the minds of American policy-makers. According to a report by Human Rights Watch, “a wall of impunity surrounds the architects of the policies responsible for the larger pattern of abuses.”

Ah. Let us take a moment to re-read that last sentence. This time focus on the word “architect”. Architect…perhaps as in, Karl Rove, widely known as “The Architect” for Bush’s reelection and subsequent policies?  Read the rest of this entry »

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Good News in the Lubanga Trial: Appeals Decision to be Delivered Next Week

Good news just arrived from the International Criminal Court a few hours ago: the Appeals Chamber is to render its decision in the Lubanga Case next week, on Friday 8 October.

From the ICC’s website:

The Appeals Chamber will deliver its Judgments in the Lubanga case on Friday, 8 October

On Friday, 8 October, 2010, the Appeals Chamber of the International Criminal Court (ICC) is scheduled to deliver its Judgments on the Prosecutor’s appeals against Trial Chamber I’s decisions to stay proceedings in the case The Prosecutor v. Thomas Lubanga Dyilo, and to release the accused.

The Judgments will be delivered in open court, starting at 2:30 p.m. (The Hague local time). The session will be transmitted with no delay via web streaming on the ICC website:
Courtroom I (English):
Courtroom I (French):
On 8 July, 2010, Trial Chamber I of the ICC ordered to stay the proceedings in the case against Thomas Lubanga Dyilo, considering that the fair trial of the accused is no longer possible due to non-implementation of the Chamber’s orders by the Prosecution. The judges had ordered the Office of the Prosecutor to confidentially disclose to the Defence the names and other necessary identifying information, of intermediary 143. Following the decision to stay the proceedings, Trial Chamber I ordered, on 15 July, the release of the accused. According to the judges, an accused cannot be held in preventative custody on a speculative basis, namely that at some stage in the future, the proceedings may be resurrected. The ICC Prosecutor submitted two appeals against these decisions. On 23 July, the Appeals Chamber gave suspensive effect to the Prosecutor’s appeal against the decision to release the accused.

For those who missed what that decision is all about, check my previous post on the Lubanga trial here. I’m looking forward to what the Appeals Chamber will say on this, and the oh-so-suspenseful question: will they release him? The vast majority of people I’ve talked to doubts it, but we’ll only be sure next week.

For professional reasons (not that I mind – far from it), I’ll be attending the hearing live next Friday. So you’ll be reading more about this then…

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