Accountability for harms to children during armed conflict discussed at ILW panel

NEW YORK – Ways to redress offenses against children during armed conflict formed the core of the panel that our University of Georgia School of Law Dean Rusk International Law Center sponsored last Friday at International Law Weekend, an annual three-day conference presented by the American Branch of the International Law Association and the International Law Students Association. I was honored to take part.

► Opening our panel was Shaheed Fatima QC (top right), a barrister at Blackstone Chambers in London, who led a panel of researchers for the Inquiry on Protecting Children in Conflict, an initiative chaired by Gordon Brown, former United Kingdom Prime Minister and current UN Special Envoy for Global Education.

As Fatima explained, the Inquiry focused on harms that the UN Security Council has identified as “six grave violations” against children in conflict; specifically, killing and maiming; recruitment or use as soldiers; sexual violence; abduction; attacks against schools or hospitals; and denial of humanitarian access. With regard to each, the Inquiry identified legal frameworks in international criminal law, international humanitarian law, and international human rights law. It proposed a new means for redress: promulgation of a “single instrument” that would permit individual communications, for an expressed set of violations, to the Committee on the Rights of the Child, the treaty body that monitors compliance with the Convention on the Rights of the Child and its three optional protocols. These findings and recommendations have just been published as Protecting Children in Armed Conflict (Hart 2018).

► Next, Mara Redlich Revkin (2d from left), a Ph.D. Candidate in Political Science at Yale University and Lead Researcher on Iraq and Syria for the United Nations University Project on Children and Extreme Violence.

She drew from her fieldwork to provide a thick description of children’s experiences in regions controlled by the Islamic State, an armed group devoted to state-building – “rebel governance,” as Revkin termed it. Because the IS sees children as its future, she said, it makes population growth a priority, and exercises its control over schools and other “sites for the weaponization of children.” Children who manage to free themselves from the group encounter new problems on account of states’ responses, responses that Revkin has found often to be at odds with public opinion. These range from the  harsh punishment of every child once associated with IS, without considering the extent of that association, to the rejection of IS-issued birth certificates, thus rendering a child stateless.

► Then came yours truly, Diane Marie Amann (left), Emily & Ernest Woodruff Chair in International Law here at the University of Georgia School of Law and our Center’s Faculty Co-Director. I served as a member of the Inquiry’s Advisory Board.

Discussing my service as the Special Adviser to the Prosecutor of the International Criminal Court on Children in and affected by Armed Conflict, I focused on the preparation and contents of the 2016 ICC OTP Policy on Children, available here in Arabic, English, French, Spanish, and Swahili. The Policy pinpoints the crimes against and affecting children that may be punished pursuant to the Rome Statute of the International Criminal Court, and it further delineates a “child-sensitive approach” to OTP work at all stages, including investigation, charging, prosecution, and witness protection.

► Summing up the conversation was Harold Hongju Koh (2d from right), Sterling Professor of International Law at Yale Law School and former Legal Adviser to the U.S. Department of State, who served as a consultant to the Inquiry.

Together, he said, the presentations comprised “5 I’s: Inquiry, Iraq and Syria, the ICC, and” – evoking the theme of the conference – “international law and why it matters.” Koh lauded the Inquiry’s report as “agenda-setting,” and its proposal for a means to civil redress as a “panda’s thumb” response that bears serious consideration. Koh envisaged that in some future administration the United States – the only country in the world not to have ratified the Convention on the Rights of the Child – might come to ratify the proposed new  protocol, as it has the optional protocols relating to children in armed conflict and the sale of children.

The panel thus trained attention on the harms children experience amid conflict and called for redoubled efforts to secure accountability and compensation for such harms.

(Cross-posted from Diane Marie Amann)

Another first at the ICC: convictions for offences against the administration of justice

This year has been a year of firsts for the International Criminal Court (ICC). The ICC delivered its first conviction for sexual violence (including based on rape of men) and the first for command responsibility in the case against Jean-Pierre Bemba Gombo (Bemba) in March. That same month, it also confirmed the highest number of charges against an accused person to date, including the broadest range of sexual and gender-based crimes, in the case against Dominic Ongwen. He is the first person ever in international criminal law to stand trial for charges of forced pregnancy, and the first before the ICC to face charges of forced marriage. His trial is scheduled to commence in December 2016. In September, the Court pronounced its first conviction for the war crime of intentionally directing attacks against religious and historic buildings in the Al Mahdi case, after his admission of guilt earlier this year (yet another first!). Just last week, the ICC held its first reparations hearings in the case against Thomas Lubanga Dyilo. And yesterday, 19 October 2016, saw the ICC’s first conviction for offences against the administration of justice in the case against Bemba et al.

Bemba, a former Congolese Vice-President, stood trial together with Aimé Kilolo Musamba, his former Defence counsel, Jean-Jacques Mangenda Kabongo, a former member of his Defence team, Fidèle Babala Wandu, a member of the DRC Parliament, and Narcisse Arido, a former potential witness for the Defence. Together they were accused of intentionally corruptly influencing 14 Defence witnesses and presenting evidence they knew to be false to the Court in the ‘main case’ against Bemba, which involved his responsibility for crimes committed by forces under his command in the Central African Republic in 2002-2003, and for which he was convicted in March.

Offences against the administration of justice under Article 70, although not one of the core crimes of the Rome Statute, appear to have become an issue in almost all cases before the ICC, and cannot be left unaddressed. While ideally the ICC should not be spending its already stretched resources on non-core crime issues, these cases are important because they send a message that the ICC will not allow interference with or obstruction of its procedures. Witness intimidation has very serious consequences even beyond the immediate case it affects. The security of witnesses and the ability of the ICC to ensure their safety is critical for witnesses to continue to come forward and testify. Leaving such instances unaddressed can not only jeopardise the ICC’s investigations and prosecutions into core crimes, but leave victims of these crimes exposed to increased security risks and intimidation. As Presiding Judge Schmitt said prior to issuing the Chamber’s verdict: “Such offences have significance because criminal interference with witnesses may impede the discovery of the truth in cases involving genocide, crimes against humanity and war crimes. They may impede justice to victims of the most atrocious crimes and ultimately may impede the Court’s ability to fulfil its mandate.”

In its judgment, Trial Chamber VII described the means of witness interference used by the defendants, which included the abuse of the Registry’s privileged phone lines in the ICC detention centre, the provision of secret phones to witnesses to remain in contact in violation of no-contact-orders, illicit transfer of money or provision of material benefits to witnesses, the promise of money and relocation to Europe in exchange for witnesses’ testimony, and the coaching, scripting, dictating and correction of witness testimony. The Chamber found that Bemba, Kilolo and Mangenda, as co-perpetrators, were part of this common plan to corruptly influence 14 Defence witnesses in the main case against Bemba, and presenting their false evidence to the Court. They also tried to interfere with the Prosecution’s investigations into these Article 70 offences, and systematically tried to circumvent measures put in place by the Chamber to guarantee the integrity of proceedings. Babala and Arido, although not part of the common plan, made efforts to contribute towards this goal. The Chamber thus found Bemba, Kilolo and Mangenda guilty as co-perpetrators of corruptly influencing Defence witnesses and inducing or soliciting their false testimony under Articles 70(1)(a), (b) and (c). Babala was convicted of having aided in the commission of the offence of corruptly influencing two Defence witnesses under Article 70(1)(c); Arido was found guilty of having corruptly influenced four Defence witnesses under Article 70(1)(c).  Continue reading

ICC issues landmark judgment: Bemba convicted as commander-in-chief for sexual violence crimes (Part 2/2)

Yesterday was a day of firsts for the International Criminal Court (ICC). Jean Pierre Bemba Gombo’s conviction is the ICC’s first for sexual violence (see part 1 of this post), including against men. And, not only that, it is the first conviction of a military commander for crimes committed by soldiers under his command – Bemba did not commit any of the crimes himself. Here are some highlights in relation to this second important issue.

First conviction for command responsibility

As I wrote earlier, Bemba stood trial (and was convicted) as President and Commander-in-Chief of the Mouvement de libération du Congo (MLC) for three counts of war crimes (murder, rape, and pillaging) and two crimes against humanity (murder, and rape) committed by MLC soldiers in the Central African Republic (CAR) in 2002-2003. The MLC had entered the CAR to assist then CAR President Ange-Felix Patassé to suppress an attempted military coup. There, the MLC soldiers engaged in a campaign of pillage, murder, and rape against the civilian population. While he did not commit these crimes himself, Bemba stood trial because “he knew” that his troops were committing these crimes, and “did not take all necessary and reasonable measures within his power to prevent or repress their commission”. He is the first person to have been charged at the ICC with command responsibility under article 28 of the Rome Statute. The Trial Chamber included a detailed analysis of the applicable law under article 28, and of the evidence in relation to Bemba’s responsibility.

The Chamber found that Bemba was the MLC’s military and political leader from its creation throughout the entire period of the charges. He took the most important decisions, and held broad formal powers, including controlling the MLC’s funding and issuing operational orders to commanders in the field. The Chamber stressed: “the determination of whether a person has effective authority and control rests on that person’s material power to prevent or repress the commission of crimes or to submit the matter to a competent authority” (698). It found that Bemba maintained such primary disciplinary authority over his troops in the CAR, and that he was “both a person acting as military commander and had effective authority and control over the contingent of MLC troops in the CAR throughout the 2002-2003 CAR Operation” (705).

The Chamber also discussed a broad range of evidence proving Bemba’s knowledge of the commission of crimes by the MLC, including logbooks and intelligence reports, NGO publications and communications, and local and international media sources (706-718). Bemba was in regular communication with his commanders in the field, received updates on troop movements, politics, combat situation, and allegations of crimes, and at times specifically discussed these international reports with his commanders. As it was clearly established that Bemba knew crimes were being committed, the Chamber felt it was “not warranted” to make determinations on the “should have known” element of article 28(a).  Continue reading

ICC issues landmark judgment: Bemba convicted as commander-in-chief for sexual violence crimes (Part 1/2)

Today, 21 March 2016, was a historic day for the International Criminal Court (ICC). Trial Chamber III unanimously convicted Jean-Pierre Bemba Gombo (Bemba) for his responsibility as commander-in-chief for crimes of murder, pillage, and rape committed by soldiers under his effective authority and control in the Central African Republic in 2002-2003. This makes Bemba not only the first person to be convicted by the ICC for crimes committed by troops under his command, but the first person to be convicted of sexual violence. I have not yet finished reading the 364-page judgment in full, but in this two-part blog post, I provide some initial highlights on these two questions. Citations are to paragraphs in the judgment.

First conviction for sexual violence

As I wrote previously, Bemba stood trial for two counts of sexual violence: rape as a war crime and as a crime against humanity. The judgment is the ICC’s fourth, but the first to include a conviction for sexual violence. Thomas Lubanga was convicted in 2012, but the case did not include sexual violence charges. Mathieu Ngudjolo and Germain Katanga were tried for rape and sexual slavery, but Ngudjolo was acquitted in full in 2012, and Katanga partially acquitted of the sexual violence charges in 2014. Bemba’s conviction thus marks an important turning point for the ICC regarding accountability for sexual violence.

Importantly, the rape charges in this case were based on evidence from both male and female victims of rape. The trial judgment describes in quite some detail specific acts of rape committed against both men and women. The Chamber heard testimony about rape in public, rape in front of family members and communities, gang rapes, and rape of young girls, some as young as 10 years old. Men were also raped, including when trying to prevent their wives or daughters from being raped. Rapes were often committed in conjunction with other crimes, such as pillaging, and marked by violence, often including beatings and threats with weapons.

The judgment reiterates many of the Rome Statute’s gender sensitive legal standards. The Chamber emphasised that rape under the Rome Statute is a gender-neutral crime: it is committed by the “invasion” of a part of the victim’s body (or that of the perpetrator) by “a sexual organ”, can include same-sex penetration, and can thus encompass both male and female perpetrators and victims. Oral penetration can also amount to rape (100-101). The Chamber also recalled that invasion using objects or any other part of the body constitutes rape under the Rome Statute (99). The fact that acts are committed by force, threat of force or coercion, by taking advantage of a coercive environment, or against a person incapable of giving genuine consent for the Chamber gives the invasion of a body “a criminal character” (102). The Chamber reiterated that a victim’s lack of consent is not a legal element of the crime of rape at the ICC (105). Finally, the Chamber noted that in analysing the evidence, it was guided by Rules 70 and 71, which detail important principles regarding evidence of sexual violence. Continue reading

Go On! ASIL Webinar on ‘Getting Started in International Criminal Law’ this Friday, Feb. 27

This Friday, February 27, from 12pm to 1pm ET, the American Society of International Law New Professionals and International Criminal Law Interest Groups present a webinar featuring speakers from the international courts and tribunals in The Hague and other organizations engaged in international criminal law.  “Getting Started in International Criminal Law,” part of the ASIL New Professionals Interest Group’s “Getting Started” series, will be broadcast live through the ASIL website.

Speakers include staff from the Office of the Prosecutor of the Special Tribunal for Lebanon and the International Criminal Court, legal officers from the chambers of judges on the International Criminal Tribunal for the former Yugoslavia, and defense counsel from the Special Tribunal for Lebanon, as well as academic and non-governmental practitioners working in the field.

The event will be moderated by IntLawGrrl Beth van Schaack, who is currently the Leah Kaplan Visiting Professor in Human Rights at Stanford Law School and a Visiting Scholar at the Center for International Security & Cooperation at Stanford University. Viewers can stream the event on their personal computers and submit questions during the livestream by emailing events [at] asil [dot] org.  For more information and to register, go here.