The trial in the case of The Prosecutor v. Dominic Ongwen is opening today before Trial Chamber IX of the International Criminal Court (ICC), composed of presiding Judge Bertram Schmitt, Judge Péter Kovács, and Judge Raul Cano Pangalangan. Click here for the livefeed which will resume at 14.30.
The trial opened this morning with the reading of the charges against Mr Ongwen. The Judges verified that the accused person understood the nature of the charges. The Judges asked him whether he makes an admission of guilt or pleads not guilty to the charges. Oral opening statements will be delivered by the Office of the Prosecutor and the Legal Representatives of Victims.
The trial will then resume on 16 January 2017, when the Prosecution will begin to present its evidence and call its witnesses before the judges. At its request, the Defence will make its opening statements at the beginning of the presentation of its evidence.
Background: As alleged former Commander in the Sinia Brigade of the Lord’s Resistance Army (LRA), Dominic Ongwen is accused of 70 counts of war crimes and crimes against humanity related to attacks against the civilian population in the former IDP camps of Lukodi, Pajule, Odek and Abok between October 2003 and June 2004, including: attacks against civilian population; murder and attempted murder; rape; sexual slavery; forced marriage; torture; cruel treatment of civilian and other inhumane acts; enslavement; outrage upon personal dignity; conscription and use of children under the age of 15 to participate actively in hostilities; pillaging; destruction of property and persecution. It is further alleged that from at least 1 July 2002 until 31 December 2005, Dominic Ongwen, Joseph Kony, and the other Sinia Brigade commanders were part of a common plan to abduct women and girls in northern Uganda that were then used as forced wives and sex slaves, tortured, raped and made to serve as domestic help; and to conscript and use children under the age of 15 to participate actively in hostilities in the LRA.
Ongwen is the first former child abductee to face charges before the ICC.
Mr Ongwen was transferred to the Court’s custody on 21 January 2015 pursuant to an ICC warrant of arrest.
Yesterday, the ICRC published it’s People on War report which gives important insights on peoples’ views on a range of issues relating to war. The survey covers views of over 17,000 people in 16 countries: Yemen, Colombia, Switzerland, China, France, Syria, Russia, South Sudan, Afghanistan, Palestine, Ukraine, Iraq, United States, United Kingdom, Nigeria and Israel. The last People on War survey was conducted almost 20 years ago in 1999.
The survey’s key findings are as follows:-
People living in countries affected by war believe the law matters. Over two thirds of all respondents think it still makes sense to impose limits on war. Almost half of those surveyed in conflict-affected countries still believe the Geneva Conventions prevent wars from getting worse.
The survey results highlight that violence against health care is unacceptable. Over three quarters of those surveyed believe that attacking hospitals, ambulances and health-care workers is wrong.
Compared to 1999, there is a higher degree of acceptance amongst people living in the P5 countries and Switzerland that the death of civilians in conflict zones is an inevitable part of war.
Over the past two decades, there has been a shift in public attitudes towards torture. Two thirds of all those surveyed in 2016 say torture is wrong. But when asked specif ically about whether an enemy combatant can be tortured, fewer people disagree than in 1999. In addition, there is a significant increase in the number of people who don’t know or prefer not to answer.
There is a disconnect between public opinion and the policies and actions of States and armed groups.
Violations of the laws of war – including the targeting of civilians, humanitarian workers and hospitals – are continuing, yet the survey results clearly show that the majority of people understand that these practices are wrong and that civilians and health-care workers and facilities should be protected.
The report ends with a number of calls to action that include a reminder to all parties to a conflict of their obligations under international law to respect and ensure respect to life and human dignity. It also asserts that support to any party in an armed conflict, should be conditional upon their compliance with the law.
The UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Killing has issued a call for submissions on gender-sensitive issues relating to her mandate on extrajudicial, summary or arbitrary killings (see here).
In particular, she has asked for submissions on the following questions:-
- How to define and explain “Gender” with specific reference to human rights violations, protection, obligations, accountability?
- What does a gender-specific perspective into extra-judicial, summary or arbitrary executions (thereafter EJEs) entail? Which principles, steps and analysis should be followed?
- What is the significance of gender on specific forms of EJEs?
- What is the significance of gender on the legal definitions of the various forms of EJEs?
- What does a gender-specific approach to States’ obligations with regard to the right to life entail?
- What are states’ obligations for gender-based unlawful killings at the hands of non-State Actors?
- What does a gender-specific approach to non-States Actors’ obligations with regard the right to life entail?
- What are the gender-sensitive interview methods to be followed to interview relatives of victims of EJEs, witnesses to EJEs, and others actors involved in the reporting or investigation into EJEs?
- What does a gender-specific approach to the prevention of EJEs entail?
- What does a gender-specific approach to accountability for EJEs entail?
- What does a gender-specific approach to access to remedies entail?
- How does an intersectional approach affect all aforementioned questions and issues, such as the intersections between gender, race, class, disability, ethnicity, indigenous, religion and belief, sexual orientation and gender identity, or other forms of identity?
All submissions should be sent by 31 January 2017 in English, French or Spanish to email@example.com
Guest Post by Marissa R. Brodney: New Article Explores Debates Inhibiting Implementation of Collective Reparations at the International Criminal Court
I am pleased to present a guest post by Marissa Brodney in which she presents her new article on collective reparations and the ICC. Marissa Brodney is a graduate degree candidate in Law and International Relations at Harvard Law School and Princeton University’s Woodrow Wilson School of Public and International Affairs. She previously served as a senior program associate on the research and investigations team at Physicians for Human Rights. Marissa was recently based in the Office of the Prosecutor at the International Criminal Court.
In a new article just published in the Journal of the Oxford Centre for Socio-Legal Studies, I take a fresh look at debates happening now at the International Criminal Court (ICC) with respect to collective reparations in the case against Thomas Lubanga Dyilo. Lubanga was convicted in 2012 for forcibly conscripting or enlisting children into the armed forces and using them to participate actively in hostilities. Collective reparations were authorized for victims, and the Lubanga case has become the first case at the ICC to reach the implementation stage for collective reparations. Now, in this implementation stage, the ICC Trial Chamber and Trust Fund for Victims (Trust Fund) are embroiled in debates that have stalled the implementation process, and which threaten to undermine the reparative potential of the ICC’s reparations regime more broadly.
In my article, I take a look at these debates, and different conceptual frameworks that underlie them. I explore fundamental tensions inherent to integrating reparation as a transitional justice measure within the legal framework of a criminal court, bound to protect the rights and scope of liability of the convicted person; then, I try to illuminate ways in which these tensions filter into divergent understandings of what might make the ICC’s reparations regime effective. My article interrogates the differing institutional interests and mandates of the Trial Chamber and Trust Fund, to understand why some of the present procedural impasses facing the Court may have emerged. It then anchors this conceptual exploration in analysis of ICC case law and recent filings in the Lubanga case, to suggest a pragmatic path forward.
The article focuses on two orders that the Trial Chamber recently gave the Trust Fund, as part of the Trial Chamber’s efforts to determine the scope of Lubanga’s monetary liability for reparations. First: the Trial Chamber recently ordered the Trust Fund to determine eligibility of individual beneficiaries as a prerequisite to determining Lubanga’s monetary liability for collective reparation awards. Second: the Trial Chamber ordered the Trust Fund to secure consent of victims to disclose their identities to Lubanga as a precondition to obtaining reparations. The Trust Fund has refused to comply with both orders, citing concern for victim safety among other reasons. I suggest that the Trial Chamber’s current approach would lead victims’ interactions with the ICC’s reparations regime to be more detrimental than reparative, and call upon the Trial Chamber to shift course.
Through this article, I hope to show that divergent perspectives on what might make the ICC’s collective reparations regime effective are not irreconcilable. The Court must ensure that its reparation implementation process moves forward in a way that is more responsive to victim rights and concerns, at the same time that it builds the procedural architecture necessary to protect the rights and scope of liability of the convicted person.
For previous posts on the ICC, Lubanga case and reparations on this blog, see here:-
Guest post by Diana Contreras-Garduno: Passing the buck: the ICC Trial Chamber’s approach in Lubanga Reparations Decision, 15 August 2012
Guest post by Julie Fraser and Brianne McGonigle Leyh, Fine-tuning the ICC’s Reparations Regime: Appeals Chamber Decision on Reparations in Lubanga Case, 19 March 2015
Jennifer Schense is one of the editors of an important new study on the deterrent effect of international criminal tribunals. She presents a brief summary of its scope and main findings below:-
On 4 November 2016 in Nuremberg, at its annual forum commemorating the 70th anniversary of the adoption of the Nuremberg Principles by the UN General Assembly, the International Nuremberg Principles Academy launched its first book, a volume of deterrence studies titled, Two Steps Forward, One Step Back: The Deterrent Effect of International Criminal Tribunals. This volume comprises ten country studies (Serbia, Kosovo, Rwanda, Sierra Leone, DRC, Uganda, Darfur, Kenya, Cote d’Ivoire and Mali), as well as a chapter on methodology, and conclusions drawing from all the country studies, with recommendations for further action.
Two Steps Forward is notable in a number of respects. While various articles have addressed deterrence in international criminal law in some fashion, it is apparently the first volume that addresses the issue so comprehensively. It also ventures to offer conclusions on the question of deterrence based on quantitative and qualitative research, noting that nearly 20 years have passed since the ICTY and ICTR’s establishment, and nearly 15 since the ICC and Sierra Leone Special Court’s establishment. While the Nuremberg trials themselves arguably took several generations for their effects to be fully felt, enough time has passed that it is fair to begin to examine what has been the deterrent effect so far of international tribunals, and how that effect can be enhanced or improved.
The good news is that in all of the country situations surveyed, at least some deterrent effect was reported. The authors draw on quantitative factors first to assess whether overall criminality has risen or fallen, a fundamental baseline for asking whether crimes have thereafter been deterred. The authors draw on qualitative factors to assess perceptions of deterrence, in particular amongst perpetrators and potentially like-minded individuals, including members of militaries and rebel groups, political actors, diplomats and politicians, as well as academics, civil society members and victims. Perceptions of deterrence are as significant as objectively measurable deterrence; people act on their perceptions, for good or bad, and these actions can help determine whether further crimes will be committed. In all the situation countries surveyed, the authors found that while the international court or tribunal concerned had a deterrent effect, both objective and perceived, it proved difficult to sustain because the factors supporting it often fell apart. This is an important starting point for examining how to ensure that any hard-won deterrent effect is not ultimately lost.
It is worth noting in this context that factors affecting deterrence and perceptions come not only from criminal law (either national or international) but also from other relevant fields, in particular conflict prevention and human rights. They are both court-based and contextual. Further academic work analyzing the origins and commonality of such factors has been conducted through Leiden University and should be available fairly soon. It is hoped that studies such as these can galvanize action across the dividing lines of different fields so that we can effectively address together the global challenges that most concern us, in particular how to help ensure both global accountability and meaningful, sustainable peace. The full deterrence volume is available for free on the Nuremberg Academy’s website here.
Jennifer Schense is the founding director of the House of Nuremberg and of Cat Kung Fu Productions, both dedicated to creating films and other popular, cultural works reflecting on justice. She has also worked with the ICC Office of the Prosecutor in the Jurisdiction, Complementarity and Cooperation Division since 2004, and is currently contributing to the ICC Registry’s external relations and networking strategy. Prior to her work at the ICC, she served as the Legal Adviser for the NGO Coalition for the International Criminal Court (CICC) from September 1998 until September 2004, and served for one year as a fellow at Human Rights Watch. She is currently completing her PhD in international criminal law at Leiden University. She received her Juris Doctorate from Columbia Law School in 1997, and her Bachelors of Science in Russian language and Russian area studies from Georgetown University in 1993.
This week, EJILTalk! has been hosting an interesting discussion of Daragh Murray’s book on the human rights obligations of armed groups (which we advertised on the blog a few months ago here). After an introduction by Murray, Jonathan Horowitz, Cordula Droege, and Marco Sassoli have commented on the book and Murray has been invited to respond.
First, full disclosure: many of you will know that my own book on the same topic is coming out with the Oxford University Press in 2017, so reading Murray’s book has been an pleasurable experience for me. Over the last five years Murray and I have clearly trawled through many of the same primary materials and puzzled over the same difficult questions. On many points Murray and I have come to similar conclusions, which is satisfying as it validates our separate conclusions. For example, we both agree that in instances where armed groups control territory there is a good legal argument to be made that armed groups are bound by human rights law. We also agree that an armed group’s obligations under human rights law should be graduated to match its normative capacity. But interestingly, we often reach and reason our conclusions in different ways.
Although covering the same broad topic, our books have different content and approaches. For example, in the second chapter of my book I evaluate whether IHRL has any added value vis-à-vis IHL and set out a ‘life goes on driver’ theory (see here for a further exposition of this elsewhere) which then returns later in the book. I also engage in a detailed historical analysis of the law on belligerency and insurgency, to understand how armed groups have traditionally acquired legal personality under international law and better understand the characteristics of that personality. We take different theoretical approaches when analysing how armed groups acquire legal personality under international law and draw different conclusions on how armed groups may be bound by customary international law . Unlike Murray, my starting point on this issue is that not all subjects of international law are bound by the same range of customary international law norms. In doing so, I develop a different set of arguments that provide practitioners with operational guidance about how to approach the problem of armed groups and human rights law.
Murray’s analysis is very good and his book is definitely to be recommended. In my view, the most fascinating part of his book is Part III where he painstakingly undertakes detailed operational analysis of how specific human rights obligations can be applied to armed groups in practice. In doing so, he analyses three distinct issues (i) prosecution (ii) detention and (iii) the right to health showing what armed group’s do on these issues and what role human rights law may play in their protection. In this section, he considers how different armed groups may be able to adhere to the corresponding human right obligations, by conducting an evaluation based on a combined analysis of legal framework together with the practice of armed groups. The question of how human rights law might be operationalised is one which has been given little attention until now, but is fundamentally important for the future.
There is no doubt that Murray’s book is an important addition to a question of ever-pressing importance in international law.
AJIL Unbound has posted a symposium on “The Colombian Peace Talks and International Law.” The symposium includes an introduction by Alexandra Huneeus and Rene Urueña and the following seven contributions:-
Christine Bell, Lex Pacificatoria Colombiana: Colombia’s Peace Accord in Comparative Perspective, 110 AJIL Unbound 165 (2016).
Nelson Camilo Sanchez Leon, Could the Colombian Peace Accord trigger an ICC investigation on Colombia?, 110 AJIL Unbound 172 (2016).
Juana Inés Acosta-López, The Inter-American Human Rights System and the Colombian peace: Redefining the fight against impunity, 110 AJIL Unbound 178 (2016).
Lina M. Céspedes-Báez, Gender Panic and the Failure of a Peace Agreement, 110 AJIL Unbound 183 (2016).
Laura Betancur Restrepo, The Legal Status of the Colombian Peace Agreement, 110 AJIL Unbound 188 (2016).
Pablo Kalmanovitz, Ius post bellum and the imperative to supersede IHL, 110 AJIL Unbound 193 (2016).
Rene Urueña, The Colombian Peace Negotiation and Foreign Investment Law, 110 AJIL Unbound 199 (2016).