So far, the International Criminal Court has opened investigations into seven situations in Africa: the Democratic Republic of the Congo; Uganda; the Central African Republic; Darfur, Sudan; the Republic of Kenya; the Libyan Arab Jamahiriya and the Republic of Côte d'Ivoire.[1][2] Of these seven, three were referred to the Court by the states parties (Uganda, Democratic Republic of the Congo and the Central African Republic), two were referred by the United Nations Security Council (Darfur and Libya) and two were begun proprio motu by the Prosecutor (Kenya and Côte d'Ivoire).
The Court publicly indicted 27 people, proceedings against 23 of whom are ongoing. The ICC has issued arrest warrants for 18 individuals and summonses to nine others. Five individuals are in custody and are being tried while eight individuals remain at large as fugitives (although one is reported to have died). Additionally, two individuals have been arrested by national authorities, but have not yet been transferred to the Court; the national authorities have indicated to be willing to try the suspects themselves. Proceedings against four individuals have finished following the death of two and the dismissal of charges against the other two.
As of end September 2010, the Office of the Prosecutor had received 8,874 communications about alleged crimes. After initial review, 4,002 of these communications were dismissed as “manifestly outside the jurisdiction of the Court”.[3]
Contents |
| Situation / referral / investigation opened |
Individuals indicted [note 2] |
Indicted[note 3] | Transfer to ICC Initial appearance [note 4] |
Confirmation of charges hearing Result |
Trial Result |
Appeal | Outcome | Status | Ref. | ||||
| Date | G | CAH | WC | CA [note 5] |
|||||||||
| Democratic Republic of the Congo Investigation article |
Thomas Lubanga Dyilo | 10 February 2006 | — | — | 3 | — | 17 March 2006 20 March 2006 |
9-28 November 2006 confirmed 29 January 2007 |
26 January 2009 – 26 August 2011 | In ICC custody, trial before Trial Chamber I closed on 26 August 2011, judgment expected "at the turn of the year" from 2011 to 2012 | [4] [5] | ||
| Bosco Ntaganda | 22 August 2006 | — | — | 3 | — | Fugitive | [6] | ||||||
| Germain Katanga | 2 July 2007 | — | 3 | 6 | — | 17 October 2007 22 October 2007 |
27 June – 18 July 2008 confirmed 26 September 2008 |
began 24 November 2009 |
In ICC custody, trial before Trial Chamber II ongoing; closing arguments to be held by 25 May 2012 | [7] [8] | |||
| Mathieu Ngudjolo Chui | 6 July 2007 | — | 3 | 6 | — | 6 February 2008 11 February 2008 |
|||||||
| Callixte Mbarushimana | 28 September 2010 | — | 5 | 6 | — | 25 January 2011 28 January 2011 |
16-21 September 2011 dismissed 16 December 2011 |
Charges dismissed, released; Prosecutor is seeking leave to appeal non-confirmation of charges | [9] [10] [11] [12] [13] | ||||
| Northern Uganda Investigation article |
Joseph Kony | 8 July 2005 | — | 12 | 21 | — | Fugitive | [14] | |||||
| Vincent Otti | — | 11 | 21 | — | Fugitive, reportedly died in 2007 | ||||||||
| Raska Lukwiya | — | 1 | 3 | — | Proceedings finished; died on 12 August 2006 | ||||||||
| Okot Odhiambo | — | 3 | 7 | — | Fugitive | ||||||||
| Dominic Ongwen | — | 3 | 4 | — | Fugitive | ||||||||
| Central African Republic | Jean-Pierre Bemba | 23 May 2008 10 June 2008 |
— | 3 | 5 | — | 3 July 2008 4 July 2008 |
12-15 January 2009 confirmed 15 June 2009 |
began 22 November 2010 |
In ICC custody, trial before Trial Chamber III ongoing | [15] | ||
| Darfur, Sudan Investigation article |
Ahmed Haroun | 27 April 2007 | — | 20 | 22 | — | Fugitive | [16] | |||||
| Ali Kushayb | — | 22 | 28 | — | Fugitive | ||||||||
| Omar al-Bashir | 4 March 2009 12 July 2010 |
3 | 5 | 2 | — | Fugitive | [17] | ||||||
| Bahr Idriss Abu Garda | 7 May 2009 (summons) |
— | — | 3 | — | 18 May 2009 | 19-29 October 2009 dismissed 8 February 2010 |
Proceedings finished with charges dismissed | [18] | ||||
| Abdallah Banda | 27 August 2009 (summons) |
— | — | 3 | — | 17 June 2010 | 8 December 2010 confirmed 7 March 2011 |
to begin in 2012 | Appearing voluntarily, charges confirmed, trial before Trial Chamber IV to begin in 2012 | [19] [20] | |||
| Saleh Jerbo | — | — | 3 | — | |||||||||
| Republic of Kenya Investigation article |
William Ruto | 8 March 2011 (summons) |
— | 4 | — | — | 7 April 2011 | 1-8 September 2011 result pending |
Appearing voluntarily, pre-trial phase before Pre-Trial Chamber II ongoing, decision on the confirmation of charges expected by 20 January 2012 | [21] [22] [23] [24] [25] | |||
| Henry Kosgey | — | 4 | — | — | |||||||||
| Joshua Sang | — | 4 | — | — | |||||||||
| Francis Muthaura | 8 March 2011 (summons) |
— | 5 | — | — | 8 April 2011 | 21 September – 5 October 2011 result pending |
Appearing voluntarily, pre-trial phase before Pre-Trial Chamber II ongoing, decision on the confirmation of charges expected by 20 January 2012 | [26] [27] [25] | ||||
| Uhuru Kenyatta | — | 5 | — | — | |||||||||
| Mohammed Hussein Ali | — | 5 | — | — | |||||||||
| Libyan Arab Jamahiriya | Muammar Gaddafi | 27 June 2011 | — | 2 | — | — | Proceedings finished; died on 20 October 2011 | [28] [29] | |||||
| Saif al-Islam Gaddafi | — | 2 | — | — | Reportedly in custody of Libyan authorities, arrested on 19 November 2011 | [28] [30] | |||||||
| Abdullah Senussi | — | 2 | — | — | Reportedly in custody of Libyan authorities, arrested on 20 November 2011 | [28] [31] | |||||||
| Republic of Côte d'Ivoire | Laurent Gbagbo | 23 November 2011 | — | 4 | — | — | 30 November 2011 5 December 2011 |
to begin 18 June 2012 |
In ICC custody, pre-trial phase before Pre-Trial Chamber III ongoing | [2][32] | |||
Notes
The Prosecutor may open an investigation under three circumstances:[33]
Of the seven situations the Prosecutor has investigated to date, three were referred by states parties, two were referred by the Security Council, and in two the Pre-Trial Chamber authorised him to open an investigation based on information received from other sources.
| Situation | Date of referral | UNSC Res. | Votes | For | Against | Abstained |
| Darfur, Sudan | 31 March 2005 | 1593 | 11-0-4 | |||
| Libya | 26 February 2011 | 1970 | 15-0-0 |
In December 2003, the government of Uganda, a state party, referred to the Prosecutor the situation concerning the Lord’s Resistance Army in Northern Uganda.[34] The Prosecutor decided to open an investigation into this matter on 29 July 2004, and on 5 July the situation was assigned to Pre-Trial Chamber II.
On 8 July 2005, the Court issued its first public arrest warrants for five senior leaders of the LRA alleging:[35]
None of the indictees have yet been arrested but Lukwiya was killed in fighting on 12 August 2006,[36][37] and Otti is said to have been killed in 2007, apparently by Kony.[38] The other three suspects are believed to be either in Southern Sudan or the northwestern Ituri Province of the Democratic Republic of the Congo.
The government of Uganda is currently in peace talks with the LRA. The LRA's leaders have repeatedly demanded immunity from ICC prosecution in return for an end to the insurgency.[39] The government of Uganda says it is considering establishing a national tribunal that meets international standards, thereby allowing the ICC warrants to be set aside.[40]
In March 2004, the government of the Democratic Republic of the Congo, a state party, referred to the Prosecutor “the situation of crimes within the jurisdiction of the Court allegedly committed anywhere in the territory of the DRC since the entry into force of the Rome Statute, on 1 July 2002.”[41][42] On 23 June, the Prosecutor decided to open an investigation into the matter and on 4 July the case was allocated to Pre-Trial Chamber I. In February 2008, at the time of the arrest of the third suspect, the Prosecutor announced that this arrest had closed the ICC investigations in Ituri.[43]
On 17 March 2006, Thomas Lubanga, former leader of the Union of Congolese Patriots militia in Ituri, became the first person to be arrested under a warrant issued by the court; he will be the first suspect to face trial at the ICC. A sealed (secret) warrant had been issued for his arrest on 10 February 2006 for the war crime of using child soldiers. He was flown to the court the same day in a French military aircraft.[44] The prosecutor has stated that his trial will only be on the allegation of using child soldiers, and other allegations will be followed up in a subsequent prosecution.[45]
Originally, Lubanga's trial was due to begin on 23 June 2008,[46] but it was halted on 13 June when the Court ruled that the Prosecutor's refusal to disclose potentially exculpatory material had breached Lubanga's right to a fair trial.[47] The Prosecutor had obtained the evidence from the United Nations and other sources on condition of confidentiality, but judges ruled that the Prosecutor had incorrectly applied the relevant provision of the Rome Statute and, as a consequence, "the trial process has been ruptured to such a degree that it is now impossible to piece together the constituent elements of a fair trial".[47] The Court lifted this suspension on 18 November 2008; Lubanga's trial began on 26 January 2009.[48][49]
Two more participants in the Ituri conflict, Germain Katanga and Mathieu Ngudjolo Chui, have also been surrendered to the Court by the Congolese authorities.[50][51] Both men are charged with six counts of war crimes and three counts of crimes against humanity, relating to an attack on the village of Bogoro on 24 February 2003 in which at least 200 civilians were killed, survivors were imprisoned in a room filled with corpses, and women and girls were sexually enslaved.[52][53] The charges against both men include murder, sexual slavery and using children under the age of fifteen years to participate actively in hostilities.[50][51]
Katanga, the former leader of the Ngiti-majority Front for Patriotic Resistance of Ituri militia, was transferred to the Court on 17 October 2007;[50] Ngudjolo, former leader of the National Integrationist Front, was transferred to the Court on 6 February 2008.[51] The hearing to confirm the charges against them began on 27 June 2008.[54] The trial against the two men started on 24 November 2009.
On 20 August 2010, the Prosecutor requested Pre-Trial Chamber I to issue a warrant of arrest against Callixte Mbarushimana. He is alleged to have been the Executive Secretary of the Forces démocratiques de libération du Rwanda – Forces Combattantes Abacunguzi (FDLR-FCA, FDLR). On 28 September 2010, the Pre-Trial Chamber complied with the request and issued a sealed warrant of arrest which was unsealed on 11 October 2010, the day French authorities arrested Mbarushimana.[55] The suspect was transferred to the ICC on 25 January 2011. His confirmation of charges hearing was held from 16 to 21 September 2011. By a 2 to 1 majority, Pre-Trial Chamber I ruled on 16 December 2011 that the confirmation was declined. After the Prosecutor's appeal against the decision was rejected, Mbarushimana was released on 23 December 2011.[56]
In December 2004, the government of the Central African Republic, a state party, referred to the Prosecutor “the situation of crimes within the jurisdiction of the Court committed anywhere on the territory of the Central African Republic since 1 July 2002, the date of entry into force of the Rome Statute.”[57]
On 13 April 2006 the Court of Cassation of the Central African Republic investigating charges or murder and rape committed by former President Ange-Felix Patasse and Congolese Vice-President Jean-Pierre Bemba said that they could not secure the arrest of the suspects, despite international arrest warrants, and requested the ICC to take responsibility. The allegations against Bemba date to when his Movement for the Liberation of Congo rebel army was invited by Patasse into the capital Bangui to fight rebels who were fighting against Patasse. Also referred to the court were the cases of a French policeman and two aides of Patasse who were all involved in the alleged crimes, which human rights groups allege had about 400 victims.[58]
Local activists from the Union of Central African Journalists (UJCA) have also accused the President, François Bozizé, of committing genocide against the inhabitants of northern Central African Republic – who supported the former regime – after seizing power in 2003, and asked the court to prosecute Bozizé.[59]
In November 2005, the Office of the Prosecutor held meetings with the government, judiciary authorities, civil society and international community representatives in CAR to gather additional information for the preliminary analysis.
In September 2006 the government of the CAR filed a complaint with the court saying the Prosecutor had failed to decide within a reasonable time whether or not to investigate. In response the pre-trial chamber ordered the prosecutor to submit a report by 15 December 2006 as to the current status of the investigation and an estimate of when a decision on whether to investigate will be made.[60]
On 22 May 2007, the Prosecutor announced his decision to open an investigation,[61][62] focusing on allegations of killing and rape in 2002 and 2003, a period of intense fighting between government and rebel forces.[63] The case has been allocated to Pre-Trial Chamber III.
On 24 May 2008, Jean-Pierre Bemba, the former Vice-President of the Democratic Republic of the Congo was arrested during a visit to Belgium under a sealed warrant under accusations of war crimes and crimes against humanity committed in CAR[64] He was transferred to the ICC on 3 July 2008. His confirmation of charges hearing, taking place from 12–15 January 2009, resulted in the charges being confirmed on 15 June 2009. His trial began on 22 November 2010.[65]
On 31 March 2005, the United Nations Security Council passed Resolution 1593, referring “the situation prevailing in Darfur since 1 July 2002” to the Prosecutor.[66] The Prosecutor opened an investigation into this situation on 6 June, and the case was allocated to Pre-Trial Chamber I.
In February 2007 the Prosecutor announced that two men – Sudanese humanitarian affairs minister Ahmad Muhammad Harun and Janjaweed militia leader Ali Kushayb – had been identified as key suspects, accused of war crimes and crimes against humanity.[67] On 2 May 2007, the Court issued arrest warrants for the two men.[68] However, Sudan claims the Court has no jurisdiction over this matter,[67] and refuses to hand over the suspects.[68]
In July 2008, the Chief Prosecutor applied to the Court for an arrest warrant for President of Sudan Omar al-Bashir on ten counts of genocide, crimes against humanity and war crimes. In October the Court asked the Prosecutor for more information to support the charges.[69]
On 14 July 2008, the Prosecutor accused Sudanese President Omar al-Bashir of genocide, crimes against humanity and war crimes.[70] The court issued an arrest warrant for al-Bashir on 4 March 2009 for war crimes and crimes against humanity, but ruled that there was insufficient evidence to prosecute him for genocide.[71] Al-Bashir was the first sitting head of state indicted by the ICC.[71] Al-Bashir denies all the charges, describing them as "not worth the ink they are written in".[72] In July 2009, the member-states of the African Union agreed not to co-operate in his arrest.[73][74] Nevertheless, several African Union members who are also States Parties of the ICC, including South Africa and Uganda, let it be known that al-Bashir might be arrested if he entered their territory. However, in July and August 2010 al-Bashir traveled to Chad and Kenya, neither of which turned him over to the ICC despite being States Parties; the ICC has reported both member states to the UN Security Council and the ICC Assembly of States Parties.[75]
On 3 February 2010, the Appeals Chamber of the ICC reversed the Pre-Trial Chamber's rejection of the genocide charge, ruling that the PTC had applied a too stringent standard of proof. Subsequently, the First Pre-Trial Chamber issued a second warrant of arrest against al-Bashir on 12 July 2010, in which he was charged with genocide against three ethnic groups in Darfur.[76]
On 17 May 2009, it was the first time that a suspect appeared voluntarily before the Court. Bahr Idriss Abu Garda, commander of the United Resistance Front, a Darfuri rebel group, was accused of responsibility for the attack on the African Union's peace mission in Haskanita (North-Darfur) on 29 September 2007. In this attack 12 soldiers were allegedly killed and eight injured. Abu Garda denies the charge, but reported voluntarily, stating that "every leader should co-operate with justice and observe the law".[77] A summons was issued against Abu Garda, but no warrant of arrest. He was allowed to await the further proceedings while in liberty.
On 8 February 2010, Pre-Trial Chamber I of the Court ruled that there was insufficient evidence to proceed to trial on charges against Abu Garda.[78] On 23 April 2010, this Chamber also declined the Prosecutor's application to appeal the decision. Under the Rome Statute, such a move to the Appeals Chamber can only be made once leave of the Pre-Trial Chamber has been granted. Both decisions do not preclude the Prosecution from subsequently requesting the confirmation of the charges against Abu Garda if such a request is supported by additional evidence.[79]
On 16 June 2010, two other rebel leaders came voluntarily to the Court. Abdallah Banda Abakaer Nourain (Banda) and Saleh Mohammed Jerbo Jamus (Jerbo), leaders of small Darfuri rebel groups, are also charged with war crimes for their alleged roles in the attack in Haskanita described above. Prosecutor Moreno Ocampo stated that their voluntary appearance was the culmination of months of efforts to secure their co-operation.[80] On 17 June 2010, they faced Pre-Trial Chamber I, which ruled that there are reasonable grounds for their prosecution. Just as in the case against Abu Garda, the Prosecutor has not made a request for warrants of arrest against them.
On 20 November 2008, the Chief Prosecutor announced his intention also to prosecute three rebel commanders from the Justice and Equality Movement for the 2007 Haskanita raids, in which 12 AMIS peacekeepers were killed.[81] In May 2009, the Court summoned the three to appear before the Court. One of these – Bahr Idriss Abu Garda – appeared voluntarily before the Court on 18 May 2009.[82][83] Abu Garda has been charged with the war crimes of attacking peacekeepers, murder and pillage.[82] The two other rebel commanders charged by the Prosecutor – Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus – appeared voluntarily before the court on 17 June 2010. On 7 March 2011, Pre-Trial Chamber I confirmed the charges against the two and committed them to trial.[84]
On 31 March 2010, a Pre-Trial Chamber of the International Criminal Court authorized the Prosecutor to investigate the 2007–2008 Kenyan crisis.[85] This was the first time the Prosecutor had requested such an authorization; all other investigations have been triggered by either the corresponding government or by the United Nations Security Council.
On 15 December 2010, the Prosecutor applied for summonses to appear for six alleged perpetrators: In the first case, William Ruto, Henry Kiprono Kosgey and Joshua Arap Sang are to stand trial for crimes against PNU supporters whereas, in the second case, Francis Muthaura, Uhuru Muigai Kenyatta and Mohamed Hussein Ali are to stand trial for crimes against ODM supporters.[86] On 8 March 2011, the Pre-Trial Chamber issued summonses for all six alleged perpetrators to appear before the Court on 7 April and 8 April 2011 respectively.[87]
As a consequence of the 2011 Libyan uprising and its brutal suppression, the UN Security Council voted on 26 February 2011 in Resolution 1970 unanimously to refer the situation in Libya to the ICC.[88] Other than the referral of the situation in Darfur, Sudan, to the ICC in March 2005, this is only the second time that the Security Council has referred a situation to the ICC, and the first time that it has done so unanimously. China and the United States had abstained in 2005, but this time voted in favor of referral to the ICC.[89]
On 3 March 2011, just five days after the referral of the situation, the Prosecutor opened an investigation. On 16 May 2011, the Prosecutor requested a Pre-Trial Chamber of the Court to issue warrants of arrest against Muammar Gaddafi, his son Saif al-Islam, and the head of Libya's intelligence, Abdullah Senussi, for allegedly committed crimes against humanity. This request was granted on 27 June 2011, resulting in the second ICC warrant of arrest against an incumbent head of state, the other being Sudan's Omar al-Bashir.[90]
On 19 May 2011, the Prosecutor informed the Presidency of the Court about his intention to request the authorization to open a formal investigation in the situation of Côte d'Ivoire (Ivory Coast) since 28 November 2010.[91] A day later, the Presidency issued an order assigning the situation to Pre-Trial Chamber II[92] which was on 22 June 2011 modified by establishing a Pre-Trial Chamber III and assigning the situation in Côte d'Ivoire to it.[93] On 23 June 2011, the Prosecutor formally requested the authorization from a Pre-Trial Chamber to begin an investigation into crimes allegedly committed in Côte d'Ivoire.[94]
While Côte d'Ivoire is not a state party to the Rome Statute, it has repeatedly and by different administrations accepted the ICC's jurisdiction.[95][96]
On 3 October 2011, Pre-Trial Chamber III authorized the investigation to be conducted by the Prosecutor.[2]
As of end September 2010, the Office of the Prosecutor had received 8,874 communications about alleged crimes. After initial review, 4,002 of these communications were dismissed as “manifestly outside the jurisdiction of the Court”.[3]
On 10 February 2006, the Prosecutor published a letter responding to complaints he had received concerning the 2003 invasion of Iraq.[97] He noted that "the International Criminal Court has a mandate to examine the conduct during the conflict, but not whether the decision to engage in armed conflict was legal", and that the court's jurisdiction is limited to the actions of nationals of states parties.[97] He concluded that there was a reasonable basis to believe that a limited number of war crimes had been committed in Iraq, but that the crimes allegedly committed by nationals of states parties did not appear to meet the required gravity threshold for an ICC investigation.[98]
In addition to the six situations where the Prosecutor has opened formal investigations, several other situations have been subjected to "preliminary examination", including Afghanistan,[99] Colombia, Guinea, Georgia, Honduras, Nigeria, Palestine, and the Republic of Korea.
The Court is designed to complement existing national judicial systems: it can only exercise its jurisdiction when national courts are unwilling or unable to investigate or prosecute.[100] States Parties are expected to implement national legislation to provide for the investigation and prosecution of crimes that fall under the jurisdiction of the Court.
In February 2008, a Military Tribunal in Mbandaka sentenced Botuli Itofo, a policeman, to twenty years imprisonment after his conviction under ICC implementing legislation for the crime against humanity of mass rape and other "serious human rights violations". Over fifty women and girls had expressed that they had been raped as a part of a "punitive operation" by police sent to the area to restore order in March 2006.[101][102]
Under the German complementarity law, crimes against humanity as defined in the Rome Statute can be prosecuted by German courts even if they are outside the jurisdiction of the court because they occur in a country that has not ratified the statute. This is under the principle of universal jurisdiction.
In December 2005, activists from Uzbekistan submitted a complaint against Uzbek Interior Minister Zokirjon Almatov in connection with the Andijan massacre. Almatov was visiting Germany at the time for hospital treatment. The prosecutor declined to act, saying the chances of a successful prosecution was "non-existent" as the government of Uzbekistan would not cooperate in the gathering of evidence.[103]
In May 2011, a trial against two alleged members of the FDLR began in Stuttgart, Germany. Ignace Murwanashyaka and Straton Musoni, both Rwandan citizens, are accused of 26 counts of crimes against humanity and 39 counts of war crimes, allegedly committed in the Democratic Republic of the Congo. This is the first trial in Germany under the Völkerstrafgesetzbuch in force since 2002.[104][105]
In 2007, Corporal Donald Payne became the first British person to be convicted of a war crime. He pleaded guilty under ICC implementing legislation for inhumane treatment of Baha Mousa, an Iraqi detainee following the 2003 invasion of Iraq. He was sentenced to one year in jail and dismissed from the army. Three other soldiers were acquitted of war crimes in the same trial.[106][107][108] [109]
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