In the Courtroom: Key junctures as ICC enters summer recess

Ntaganda: Defense strategy takes center stage

The Bosco Ntaganda defense opened on 29 May after the prosecution and victims' representatives finished presenting their respective cases. Ntaganda is charged with five counts of crimes against humanity and thirteen counts of war crimes allegedly committed in the Ituri region of eastern DRC while he was deputy military head of the rebel group Patriotic Forces for the Liberation of Congo (FLPC).

In April, the ICC had rejected Ntaganda’s request to stay proceedings, in which he alleged that he could no longer be ensured a fair trial due to the Prosecutor's simultaneous investigation into Article 70 offenses against administration of justice. Judges did, however, bar the use during proceedings of evidence collected in the context of Article 70 absent their authorization.

Judges also in June rejected a defense application to move the case toward an early termination over a weak prosecution case, and while allowing Ntaganda to appeal the decision, rejected his accompanying request to halt the trial in the meantime.

The day after Ntaganda's testimony began, the Appeals Chamber settled a long-running issue in the case, confirming that the former FLPC deputy chief of staff could be tried at the ICC on charges of rape and sexual slavery of members of his own forces.

In the early stages of his testimony, Ntaganda claimed that the Union of Congolese Patriots militia in which he was a top commander rejected underage recruits, maintaining that training camps enforced screening policies including visual examination and assignment of small tasks. He did not mention what age was considered acceptable for recruitment into the militia.

Ntaganda has been permitted to testify for six weeks, and will resume his testimony after judicial recess.

Ongwen: Prosecution case takes shape as witnesses testify

After opening in earnest in January 2017, the trial of former Lord's Resistance Army (LRA) commander Dominic Ongwen - on 70 counts of war crimes and crimes against humanity in Northern Uganda - reached the heart of the prosecution case prior to the Court's summer recess, with numerous witnesses testifying in The Hague and via video-link.

One witness testified about her duties as a babysitter, assigned soon after her abduction by the LRA. According to the witness, who was expected to carry children under her care whenever the unit changed location, she was raped by a fighter in Ongwen’s household at age 13, testiying that she then became the man’s wife. A former LRA intelligence officer  told judges that Ongwen was in charge of “distributing” abducted girls and women to senior fighters.

Another witness told the Court that even adults were abducted and used to carry looting spoils, while younger abductees were those most often used to kill those attempting escape. During questioning by the common legal representative of victims, the witness referred to the day he began whistling while carrying out his assignments for the LRA.

In June, a survivor of an LRA attack on the Lukodi internally displaced persons (IDP) camp testified that Ugandan soldiers assigned to protect them fled when rebels attacked, adding that soldiers only pursued the rebels the following morning and did not question her when she was hospitalized following the attack. Another witness later testified that militia guarding the Abok IDP camp similarly failed to confront the LRA during an attack.

An Acholi chief recounted meeting Ongwen before the attack on the Pajule IDP camp – to negotiate peace between the LRA and government forces. The Acholi chief testified that government and LRA soldiers shot at him and other traditional leaders attempting to negotiate peace, while the defense suggested the chief may have been an LRA collaborator during its cross.

A former LRA abductee claiming to have escaped the rebel group after a year and nine months testified that he returned to insults in his community and challenges resuming school. The witness added that he was advised by former LRA fighters at a rehabilitation clinic to lie about the duration of his LRA service in order to extend treatment.

Prior to the ICC summer recess in July, the Court heard a former fighter-turned-witness testify that Ongwen's was one of three groups to target the Pajule IDP camp in 2003, with Ongwen's group abducting civilians and looting the trading center. Another described participating, with the defense challenging the claim, in alleged attacks led by Ongwen against the Odek and Abok IDP camps, stating that the purpose of the Odek attack was specifically to re-stock exhausted food supplies.

Gbagbo & Blé Goudé: (Re)evaluating procedures and defense rights

Judges were busy in the months ahead of the Court’s summer recess on important mid-trial procedural issues in the case against former Ivorian President Laurent Gbagbo and former youth leader Charles Blé Goudé. Both are standing trial at the ICC over their roles in an alleged common plan to consolidate power after Gbagbo's 2010 presidential election loss.

In its request that judges allow previously recorded testimony in place of live testimony, under Rule 68(3), for seven witnesses providing context for a 25 February 2011 attack in Yopougon, the prosecution argued that the measure would speed up lengthy trial proceedings while leaving the defense ample time to cross-examine the witnesses.

The Blé Goudé defense responded that Rule 68(3) had not improved efficiency of the case to that point, while the Gbagbo defense argued that recorded testimony on contested facts at the heart of the charges would be improper. In April, judges rejected the Gbagbo argument in principle, but agreed that the efficiency argument had not proved compelling and rejected the prosecution request.

In June, trial judges further elaborated on Rule 68(3), deciding that in principle prior recorded testimony can include written statements.

On 19 July 2017, the ICC Appeals Chamber delivered its judgement on a long-running issue in the case: Gbagbo’s continued detention. Judges reversed the Trial Chamber’s 11th decision refusing Gbagbo’s conditional release, finding a number of potentially important errors. Presiding Judge Piotr Hofmanski pointed to a failure by the Trial Chamber to consider the length of time that Gbagbo had already spent in detention - since 2011 - when it assessed the risks of his release.

Judge Hofmanski added that the Chamber should have considered the potential for Gbagbo’s advanced age to reduce rather than raise the chances of absconding, and that his denial of responsibility for the ICC charges against him should not have factored into the decision. The Trial Chamber was directed to determine anew whether Gbagbo should be released from detention, with or without conditions.

Meanwhile in a Court-wide initiative, a week before the judgment the plenary of ICC judges adopted amendments to the Court's Regulations, introducing several procedural innovations to make the Court's appeals more efficient.

The trial was scheduled to resume on 28 August, with all remaining prosecution witnesses expected to testify appearing at that point.

From still-at-large to reparations: What else is happening?

In June, ICC suspect Saif al-Islam Gaddafi was reportedly released from custody in Libya under a recent amnesty law. Gaddafi is the subject of a 2011 ICC arrest warrant for two counts of crimes against humanity within the Court’s UN Security Council-referred Libya situation. Despite references to amnesty, Tripoli’s acting General Prosecutor argued Gaddafi would not qualify due to the severity of his alleged crimes during the 2011 civil war in Libya.

With Gaddafi’s whereabouts unknown, the ICC Prosecutor on 14 June appealed to Libyan authorities, the Security Council, all states, whether ICC members or not, and all relevant organizations to help secure Gaddafi’s immediate arrest and surrender to the ICC. The Prosecutor also called for cooperation with the arrest and surrender of former security chief Al-Tuhamy Mohamed Khaled.

While some have advocated that the ICC collaborate with the UN and UN-backed interim government in Libya to secure Gaddafi’s transfer to The Hague, others were disappointed ICC judges would not press the Security Council to deal with non-cooperation in the Security Council-referred Darfur investigation.

On 6 July, ICC judges found the South African government in breach of its legal obligation to arrest ICC suspect and Sudanese President Omar al-Bashir when he visited the country for an African Union summit in 2015. Judges declined to refer the matter to Security Council, citing ineffectiveness of such a response in past instances of non-cooperation with al-Bashir’s arrest. The ruling was subject to appeal by either party.

The ruling came as the ICC was receiving submissions from Jordan - one of only three ICC member states in the Middle East - on its decision to allow al-Bashir to attend the 28th Arab League summit in Amman in late March. The Jordanian government, notified by the ICC on two occasions of its obligation to arrest and surrender the ICC suspect, submitted as early as March its position that as a sitting head-of-state al-Bashir enjoys immunity under customary international law. South African domestic courts, and now the ICC Pre-Trial Chamber, have rejected a very similar argument.

Last year the ICC found the Kenyan government had failed to cooperate with the ICC investigation into violence during Kenya's 2007-08 post-elections crisis, only months after judges cited likely witness interference in their decision to terminate the last remaining core crimes case out of the situation.

One of those wanted for allegedly bribing witnesses in the Kenya situation - Philip Kipkoech Bett - is now challenging the ICC arrest warrant against him on the basis of fair trial rights as well as the Rome Statute complementarity principle. In late July a senior prosecutor told Kenya's High Court that the Kenyan government was unwilling to prosecute Bett and co-ICC suspect Paul Gicheru in his application to execute the ICC warrants against the two.

The Court’s work on the other end of the spectrum - reparations for victims following conviction - saw the Trust Fund for Victims (TFV) Board of Directors decide in May to allocate $1,000,000 USD to pay for the individual and collective awards ordered in the Germain Katanga case. Katanga was convicted in 2014 of committing war crimes and crimes against humanity during an attack against Bogoro village in Ituri, eastern DRC, and sentenced to 12 years in prison. The draft implementation plan submitted in July looks to provide the full amount for which Katanga, deemed indigent, was found personally liable.