Rwanda

courThe 1994 genocide of nearly a million persons in Rwanda will be the subject of a trial beginning today before 6 jurors and 3 judges in the Paris Cour d’assises, or criminal court.

Charged with taking part in killings as part of an escadron de la mort, or death squad, is Pascal Simbikangwa, a 54-year-old man said to have been head of central intelligence and part of the inner circle of Juvénal Habyarimana, the Rwandan President whose April 6, 1994, death in a plane crash precipitated the genocide. The trial will involve testimony by historians, among other witnesses, and is set to be filmed in its entirety.

Le Monde‘s Stéphanie Maupas reported yesterday that this marks the 1st such trial in France, a country whose own behavior in Rwanda has been questioned. (And see here.) French authorities arrested Simbikangwa for trafficking in false papers in 2008 and subsequently refused the Rwandan government’s extradition request. A similar trial in Canada of another defendant ended last year in an acquittal; meanwhile, Belgium has convicted several such defendants in a series of trials.

Maupas’ report (available here and here) ended on a reflective note:

Le verdict devrait tomber mi-mars, juste avant les 20 ans du génocide. Vingt années durant lesquelles la France a été accusée d’offrir un exil confortable aux acteurs du génocide. Au-delà de l’histoire d’un homme, passible de la perpétuité, ce procès sera aussi le miroir des relations franco-rwandaises.

that is,

The verdict could come in mid-March, just before the twentieth anniversary of the genocide. Twenty years during which France has been accused of offering comfortable exile to génocidaires. In addition to the story of one man on trial for his life, this trial will also serve as a mirror of French-Rwandan relations.

unscMy colleague Beth Van Schaack, newly returned to academia after a stint as Deputy at the State Department’s Office of Global Criminal Justice, has posted at Just Security on what the presence of 11 International Criminal Court states parties on the U.N. Security Council could mean for ICC-Security Council relations.

In the past, states parties like Guatemala have used their seat to sponsor ICC discussions at the Council, she writes, and notes that the newest member will hold the Council presidency next month. That would be Jordan, whose Permanent Representative, Prince Zeid Ra’ad Zeid Al-Hussein, has worked for years on ICC issues and has served as President of the ICC Assembly of States Parties. (credit for 2009 photo of Council in session)

One nagging problem for the Court has been state noncompliance with ICC orders – in particular, of arrest warrants for fugitives like Sudanese President Omar al-Bashir – and to date the Council has done little to command compliance by U.N. member states. Another, Van Schaack writes, is the Council’s withholding of sanctions against persons accused by the ICC. Yet another  is the resolution boilerplate by which the Council:

► 1st, declined to contribute funds to aid the investigation and prosecution of the Libya and Darfur situations that it referred to the Court; and

► 2d, immunized any national of a ICC nonparty states (read the United States) from ICC investigation, even if the national were suspected of committing ICC crimes in the referred situation.

(And see here.) In theory, the large presence of states parties could change these dynamics. Or not: Van Schaack writes of criticism that states “‘forget’ that they are ICC members when they are elected to the Council.”

And there is also the matter of the Council’s 4 members who are not ICC states parties, China, Rwanda, Russia, and the United States. Their attitudes toward the ICC range from ambivalent to downright hostile, and 3 of them are permanent members able to veto Council resolutions. Van Schaack indicates that this may have contributed to a “zeitgeist,” an opening for the proposal that the Council ought not veto measures aimed at stopping atrocities. As I detailed in An old new idea to break P-5 impasse, the idea’s been around for more than a decade, but gained new steam when France, a  Council permanent member, embraced it this autumn. The other P-5 ICC state party, Britain, has yet to weigh in.

‘On Saturday, along the road between Goma and Kibumba, soldiers brought up two young men, both defectors from M23. One, who claimed to be 20, looked 16.
‘ “You are good boys. You have made a good decision to come,” General Bahuma told them as they stared on, sullen. “You should fight for your country.”’

gomaThus reported Nicholas Kulish toward the end of today’s front-page New York Times story, “A Reason for Hope in Congo’s Perpetual War.” The story told of apparent progress in efforts to quell years-old rebellion in the eastern portion of the Democratic Republic of the Congo – efforts including strengthened U.N. peacekeeping and increased disciplining of Congolese army troops. (map credit) The targeted rebels belong to M23, the armed group formed last year by mutineers from among the national army’s ranks.

M23 is alleged to recruit child soldiers. (Indeed, its onetime leader, Bosco Ntaganda, who surrendered to the International Criminal Court several months ago, faces trial on that very charge, relating to activities several years earlier.) The Democratic Republic of the Congo is a state party to the 2000 Optional Protocol pledging to outlaw recruitment under age 18, and has signed a U.N. action plan to end recruitment and use of children. President Barack Obama recently determined that the country was eligible for a waiver of aid restrictions applicable under the U.S. Child Soldiers Prevention Act of 2008.

With regard to the rebels, Kulish wrote, referring to an October 3 announcement by the State Department:

‘The United States cut off military aid to Rwanda this month over its alleged support for M23, which is believed to use child soldiers and depend heavily on Rwanda for supplies.’

That observation invites a rereading of the article’s 1st-quoted statement, that one of the “defectors … looked 16”: reportedly welcoming him back to combat was a general of the Congolese national army.

Now that the story of the surrender of Bosco Ntaganda has ended with his transport to the International Criminal Court detention center, and given that his 1st court appearance set for Tuesday morning, it’s high time to review the precise charges against this former fugitive.

drc_iturPursuant to a request by the ICC’s 1st Prosecutor, Luis Moreno-Ocampo, a 1st warrant sought the arrest of Ntaganda in August 2006. It described him as “Deputy Chief of General Staff for Military Operations” for the Forces Patriotiques pour la Libération du Congo. Conjoined with the Union des Patriotes Congolais, the UPC/FPLC operated as a political-military organization made up mostly of members of the Hema ethnic groups in Ituri. The UPC/FPLC were among several armed groups at war in that region, located in the eastern part of the Democratic Republic of the Congo. (credit for map (c) BBC) The 1st warrant alleged that Ntaganda was No. 3 in the group, led by UPC/FPLC President Thomas Lubanga Dyilo, a co-accused who was himself a Hema born in the region (in contrast with Ntaganda, who is said to have been born in Rwanda).

Only child-soldiering then was charged. Applying the standard required by Article 58(1)(a) of the Rome Statute of the ICC, judges thus issued the 1st arrest warrant after finding “reasonable grounds to believe” that Ntaganda was responsible for

► (i) enlisting,
► (ii) conscripting, and
► (iii) using to participate actively in hostilities

children under the age of fifteen, in an armed conflict of an international or a non-international charter, in violation of Articles 8(2)(b)(xxvi) and 8(2)(e)(vii), respectively.

There matters lay for nearly six years – until last May 14, when the ICC’s second Prosecutor, Fatou Bensouda, sought to expand the list of charges against Ntaganda. Her request came 2 months to the day after the ICC conviction of Lubanga for unlawful enlistment, conscription, and use of underage children in an internal – but not in an international – armed conflict. As I wrote in an American Journal of International Law casenote, in its judgment of conviction, Trial Chamber I had refused to consider trial evidence of sexual abuse in Lubanga, for the reason that the indictment did not include stand-alone charges of sexual or gender-based violence. Expansion of the charges in Ntaganda could avoid a repeat of the result in Lubanga.

The request was granted on July 13 of last year. After reviewing allegations of attacks on non-Hema civilians in Ituri – “in Mongbwalu town and Sayo village between 18 and 23 November 2002” and “in Lipri, Bambu, Kobu and surrounding villages between 17 February 2003 and 2 March 2003” – a pre-trial chamber issued the 2d arrest warrant in Ntaganda. Judges agreed that the Prosecutor had shown the requisite reasonable grounds to believe the accused’s responsibility on 7 additional counts, which alleged crimes against humanity and war crimes in a non-international armed conflict, as follows:

► 1: Murder Constituting Crimes Against Humanity (Article 7(1)(a));
► 2: Murder Constituting War Crimes (Article 8(2)(c)(i));
► 3: Attack against a Civilian Population Constituting War Crimes (Article 8(2)(e)(i));
► 4: Rape and Sexual Slavery Constituting Crimes Against Humanity (Article 7(1)(g));
► 5: Rape and Sexual Slavery Constituting War Crimes(Article 8(2)(e)(vi));
► 6: Persecution Constituting Crimes Against Humanity (Article 7(1)(h)); and
► 7: Pillaging Constituting War Crimes (Article 8(2)(e)(v)).

The form of liability charged in both warrants is that set forth in Article 25(3)(a) of the ICC Statute, concerning commission of an offense

‘whether as an individual, jointly with or through another person, regardless of whether that other person is criminally responsible.’

As is not uncommon among ICC judges, the panel in the 2d arrest warrant decision referred to this as “indirect co-perpetrator” (para. 66), even though that label, derived from the practice of some ad hoc tribunals, does not appear in the ICC Statute. This is the same form of liability at issue in the first two ICC cases to be tried to verdict – not only in the March 2012 conviction in Lubanga, but also in the December 2012 acquittal in Ngudjolo. As is evident at para. 67 of the 2d arrest warrant decision, ICC jurisprudence has constructed a many-element test for whether Article 25(3)(a) has been satisfied. But in each of the cases tried to verdict, 1 out of 3 trial chamber judges objected to the burden that the construct places on the prosecution. (The opinion to this effect in Lubanga, by Judge Adrian Fulford of Britain is at pages 594-607 of the pdf document here; that in Ngudjolo, by Judge Christine Van den Wyngaert of Belgium, is here.) It is thus notable that at para. 66 of the 2d arrest warrant decision in Ntaganda, the pre-trial chamber “underline[d]” that its determination did “not prejudice any subsequent finding regarding the applicability of a different mode of liability at a later stage of the proceedings.”