In the Courtroom: Amid trials, ICC making inroads for global justice

Ntaganda: Prosecution case and victims' views; Defense eyeing 'No case to answer'

February in the ICC war crimes and crimes against humanity trial of former Patriotic Forces for the Liberation of Congo (FPLC) leader Bosco Ntaganda saw the prosecution present its final witness. The prosecution witness testified via video link about academic records of some of the alleged child soldiers who previously testified during the trial. The Ntaganda defense objected to the testimony, aimed at establishing age at the time of being forced to quit school and join the FPLC, by arguing that its late submission prevented proper cross-examination of the earlier witnesses.

Early March saw five victims of alleged FPLC crimes in the Democratic Republic of Congo (DRC) present their views, with each stating expectations for reparations in the event of a guilty verdict. In April three additional victims testified as witnesses about their and their families’ experiences, including of torture, rape, and murder.

A February request by the defense that ICC judges conduct site visits in the DRC to gain more in-depth knowledge of logistical and geographic aspects raised in witness testimonies was rejected by judges, who cited a lack of clarity as to the visit’s added-value. The visit was intended to precede the start of the defense case in May.

The defense in April made clear that it intends to file a ‘no case to answer’ motion, which, if successful, could result in termination of the case without the defense even presenting its evidence.

Ongwen: Deemed fit for trial, accused faces prosecution witnesses; Court visits Uganda

In an ongoing issue since 2016, trial judges in the case against Dominic Ongwen decided that according to findings by defense psychiatric experts, the former Lord’s Resistance Army (LRA) commander is mentally fit to stand trial. The defense previously suggested it will argue grounds on which an accused person can be found not criminally responsible. The widespread debate that followed, including within civil society, addresses whether an LRA child abductee like Ongwen can be held to account for crimes later committed as an adult.

The prosecution’s case meanwhile continued. According to one former member of the Ugandan armed forces, the military began intercepting LRA communications after hearing of an anticipated ICC investigation. In those recordings, the witness at one point identified Ongwen telling LRA leader Joseph Kony details of an attack on Odek camp for internally displaced persons (IDPs). A contentious cross-examination led to the presiding judge intervening on several occasions. The witness later attributed his conduct to a fear of being arrested upon returning, while the prosecution reassured him of his immunities under international law.

The next two witnesses, LRA insiders, shared details of attacks allegedly ordered by Ongwen on the Odek and Lukodi IDP camps as well as of the alleged planning of an attack on a camp in Pajule. One further testified about LRA deputy leader and ICC suspect Vincent Otti's supposed killing by fellow commanders over his interest in defection.

Some prosecution witnesses provided a picture of life in the LRA. The defense doubted one witness claiming to have been Ongwen’s bodyguard, while another witness testified about LRA initiation practices following abduction.

Gbagbo & Blé Goudé: Debates and "central witness" color prosecution case

The trial of former Ivorian President Laurent Gbagbo and youth leader Charles Blé Goudé continued, with one prosecution witness failing to testify as judges began considering a series of debates between parties on issues of protective measures and protection from self-incrimination. Meanwhile, a prolonged cross-examination took place between the defense and a former senior-level Ivorian police officer who testified about radio communications and command structures. The prosecution also presented a video showing Gbagbo delivering belligerent rhetoric to his troops and supporters.

After a brief recess to deal with a potential conflict of interest between a witness and his anticipated counsel, the trial resumed with a leader of the Ivorian Gendarmerie forces – and member of Gbagbo’s inner circle – testifying. The presiding judge urged the witness to be truthful when he appeared evasive on certain lines of questioning; he eventually produced information regarding frictions in Gbagbo’s alleged command structure. The defence cross-examination ended sooner than expected.

The next prosecution witness to testify was the former head of the Security Operations Command Center (CECOS) – described as a “central witness” and the only officer in charge of CECOS from 2005 to 2011. The former head of CECOS testified about, and was cross-examined on, a number of issues: his prosecution by the regime that replaced Gbagbo’s; the structure of the CECOS; meetings between Gbagbo and senior officers; and the 16 December 2010 march that resulted in numerous civilian casualties.

After the testimony of a former Gbagbo supporter, the trial adjourned until 24 April.

What else is happening?

On 22 March 2017, Jean-Pierre Bemba Gombo and four associates were sentenced collectively to nearly seven years’ imprisonment for offenses against the administration of justice under Article 70 of the Rome Statute. The Court’s first such conviction and sentence was followed by further developments around witness-tampering in the Bosco Ntaganda trial, with the prosecution and defense sparring over the propriety of the prosecutor’s investigation of Article 70 allegations while prosecuting Ntaganda for crimes against humanity and war crimes. The defense called for a stay of proceedings, and while judges rejected the request, they did bar the prosecution, unless specifically authorized by judges, from relying on any material obtained during its Article 70 investigation in the core crimes trial.

The main Bemba case, during which witness-tampering allegations arose, meanwhile entered the reparations stage, although the path to an order benefiting victims could depend  on any appeal on the judgment and sentence. In the Ahmad al-Faqi al-Mahdi case from the prosecutor's Mali situation, the Court continued to receive submissions and reports, including by civil society, on how to implement reparations related the Court’s first destruction of cultural property conviction.

Meanwhile, the Court has two orders now at the reparations implementation stage. In the Thomas Lubanga case, after the Trust Fund for Victims (TFV) submitted information to judges detailing how it intends to implement the collective reparations process approved following Lubanga’s 2012 war crimes conviction, judges in April instructed the TFV to continue by identifying victims who will benefit as well as local implementing partners for the envisioned programs. The previous month the Court issued its second reparations order, this time for 297 victims of convicted former Congolese rebel leader Germain Katanga. Each will receive USD $250 in symbolic compensation in addition to benefiting from collective programs, with Katanga himself held personally liable for USD $1 million of the overall USD S3.75 million award. The defence gave its notice of appeal in April.

In late February/early March, the ICC President visited ongoing general assistance projects for affected communities in northern Uganda, implemented by the TFV and local partners. The TFV, which is charged with implementing Court-ordered reparations as well as with providing general assistance to communities prior to conviction, released its periodic newsletter at the start of May to report its progress in both regards.

While proceedings at the Court carried on, attention also turned toward several ICC suspects still-at-large. In the case of the Court’s most notorious suspect, Sudanese President Omar al-Bashir, the ICC released an official report in April on al-Bashir’s travels to ICC and non-ICC member states since October 2016, as well as on the Court’s response. As recently as late March, al-Bashir visited member state Jordan for the Arab League Summit.

Meanwhile, a domestic court in Côte d’Ivoire acquitted ICC suspect and former First Lady Simone Gbagbo of crimes against humanity for her alleged role in the country’s 2010-11 post-election violence, pushing focus onto reported flaws in the domestic process as well as onto Gbagbo’s outstanding ICC arrest warrant. And following indications that the ICC Prosecutor would prioritize the Libya investigation in 2017, the Court made public a 2013 arrest warrant against a senior security forces officer in the Muammar Gaddafi regime – Al-Tuhamy Mohamed Khaled – in the hopes of mobilizing cooperation around his arrest.

Further delving into issues of non-cooperation, on 7 April ICC judges heard South Africa’s explanation for its failure to arrest al-Bashir during his visit to the country for the African Union summit in June 2015. The decision by judges will address whether South Africa’s concerns were adequately heard by the Court prior to the incident, and in turn, whether South Africa’s actions amount to a violation to be dealt with by the Court’s governing body of states or the UN Security Council.