International Criminal Court investigations

Current cases before the International Criminal Court include four situations where the Chief Prosecutor has opened an official investigation, one other referral that has been received from a state and a number of complaints received from individuals.

The court was established in 2002 as a permanent tribunal to prosecute individuals for serious crimes that were committed after the date of establishment. The prosecutor can open a case where it has sufficient basis to suspect that war crimes, crimes against humanity or genocide have been committed in the territory of a member-country, by a national of a member-country, or in a situation that has been referred to the court by the United Nations Security Council or a state.

Arrests made

Democratic Republic of Congo

On 2004-04-19 the Democratic Republic of the Congo, a state party of the court referred itself to the court. On June 23 the Chief Prosecutor decided to open an investigation into the matter and on 4 July the case was allocated to Pre-Trial Chamber I.

Lubanga

On 2006-03-17 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 2006-02-10 for the war crime of using child soldiers. He was flown to the court the same day in a French military aircraft. 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

Other cases

In the court's annual report to the United Nations, reference was made to a second case where an investigation had been officially opened and a third case where analysis by the prosecutor was ongoing. In a statement to the Court's Assembly of State Parties in November 2006 the prosecutor referred to the second investigation involving "another Ituri armed group" - presumably a reference to the Nationalist and Integrationist Front - and he expected arrest warrants to be issued in the first half of 2007. The suspects have not been named in either case.

Allegations

In February 2005 the United Nations Secretary General listed nine parties to the civil war as using child soldiers or committing war crimes against children:

• The dissident army factions led by Laurent Nkunda and Jules Mutebutsi - including child rape and attacking schools
• Rwandan exiles from the Democratic Forces for the Liberation of Rwanda (FDLR) - including child rape, murder and maiming
• The Forces armées populaires congolaises - including child murder and maiming
• The Nationalist and Integrationist Front (FNI) - including child murder and maiming
• Mai-Mai militias in Kivu, Maniema and Katanga including the Mudundu 40 group - including child murder and maiming
• The government army (Force armées de la Republique Democratique du Congo or FARDC)
• The Parti pour l’unité et la sauvegarde du Congo
• The Union of Congolese Patriots factions lead by Thomas Lubanga and Floribert Kisembo

The Congolese Vice-President, Jean-Pierre Bemba is among those thought to be being investigated by the court - in his case the allegations include cannibalism against Pygmies by Bemba's militia. [2]

The leader of the FDLR, Ignace Murwanashyaka, was arrested in April 2006 in Germany; the prosecutor said he needed more information about Murwanashyaka and his responsibility for alleged FDLR crimes before any decision could be made on an ICC prosecution.

In April 2006 seven army officers from FARDC were convicted by a Military Garrison Court in Mbandaka of committing crimes against humanity. They were convicted under ICC implementing legislation which made rape, when committed as part of a general attack on a civilian population, a crime against humanity. They were all sentenced to life imprisonment.

In May a MONUC enquiry reported that Mai-Mai militia and FARDC troops had both committed serious crimes against humanity, including summary execution of civilians and enlisting child soldiers, in North Katanga province since the start of 2005.

In March 2006 the Mududu 40 leader, Jean Pierre Biyoyo was convicted by a Congolese court of recruiting child soldiers and sentenced to five years imprisonment. However he escaped from prison in June 2006

Public indictments issued

Uganda - Lord's Resistance Army

Uganda, a 'state party' of the court referred the situation caused by the Lord's Resistance Army (LRA) insurgency to the court on January 29, 2004. The Chief Prosecutor decided to open an investigation into this matter on July 29 and on July 5 the situation was assigned to Pre-Trial Chamber II

On October 14, 2005 the ICC issued its first public arrest warrants for five senior leaders of the LRA alleging:

• Leader Joseph Kony committed the crimes against humanity of murder, enslavement, sexual enslavement, rape and serious bodily injury and the war crimes of murder, cruel treatment of civilians, attacking civilians, pillage, inducing rape and enlisting child soldiers

• Kony's deputy, Vincent Otti, committed the crimes against humanity of murder, sexual enslavement and serious bodily injury and the war crimes of inducing rape, attacking civilians, enlisting child soldiers, cruel treatment of civilians, pillage and murder

• Army Commander of the LRA, Okot Odiambo committed the crime against humanity of enslavement and war crimes of attacking civilians, pillage and enlisting child soldiers; Odiambo reportedly led an attack on Barlonya refugee camp in February 2004 when more than 300 people were massacred.

• LRA commander Raska Lukwiya committed the crime against humanity of enslavement and the war crimes of cruel treatment of civilians, attacking civilians and pillage

• LRA commander Dominic Ongwen committed the crimes against humanity of murder, enslavement and serious bodily injury and the war crimes of murder, cruel treatment of civilians, attacking civilians and pillage.

None of the indictees have yet been arrested, and they are believed to be either in Southern Sudan or Northern DRC. Ongwen was originally believed to have died in 2005 during hostilities with the Ugandan army, but this was later disproved by DNA tests. Lukiya was killed in fighting on 12 August 2006 The government of Uganda is currently in peace talks with the LRA and holding out the possibility of withdrawing the indictments. Human rights groups have protested, stating that there is no mechanism to withdraw an ICC warrant.

In February 2005 the United Nations Secretary General said the LRA, Ugandan soldiers and government-organised Local Defense Units had all committed crimes against children, and the LRA was a serious violator.

Darfur, Sudan

On 2005-03-31, the United Nations Security Council referred the situation in Darfur, Sudan to the court. The Chief Prosecutor opened the investigation into this matter on June 6 and the case has been allocated to Pre-Trial Chamber I.

In November 2006, the prosecutor said his investigation was "nearly complete" and he has sufficient evidence to file charges of persecution, torture, rape and murder "soon". However, he would first assess whether the Sudanese government was conducting its own trials into these incidents before submitting evidence to the court's judges.

In February 2007, the prosecutor named Ahmed Muhammad Harun and Janjaweed militia leader Ali Kushayb as suspected of committing crimes against humanity and war crimes in Darfur in 2003 and 2004.

In May 2007, the court issued arrest warrants for Ahmad Muhammad Harun, and Ali Muhammad al Abd-al-Rahman, known as Ali Kushayb.

Investigations commenced

The Central African Republic

The Central African Republic referred itself to the court on January 6, 2005. The case has been allocated to Pre-Trial Chamber III

On 2006-04-13 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 therefore 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.

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.

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 2006-12-15 as to the current status of the investigation and an estimate of when decision on whther to investigate will be made.

In May 2007 the prosecutor officially opened an investigation focusing on alleged rapes committed during the civil war in 2002-3

Other referrals

Cote d'Ivoire

Cote d'Ivoire, which is not a member of the court, was reported in 2003 to have referred itself to the court to investigate various crimes committed during the Ivorian Civil War. However, the court has not received a formal referral from the government and as a non-member can only take jurisdiction with either the state's consent or a referral from the Security Council.

In May 2006 Human Rights Watch called on the court to send a mission to the country in order to bring an end to a culture of impunity. It cited continuing human rights abuses against civilians by state security forces, militia and the New Forces rebels.

People accused of human rights abuses who could be tried include Simone Gbagbo, wife of President Laurent Gbagbo and Guillaume Soro the head of the New Forces rebel army.

In October 2006 a United Nations report recommended that politicians obstructing the peace process should face trial at the ICC.

In November 2006 the Prosecutor confirmed that the situation in Cote d'Ivoire was under analysis.

Other complaints received

The prosecutor reported in his 2006 report to the United Nations that he had analysed seven other situations. Two - relating to Iraq and Venezuela - had been dismissed, and five were ongoing. The five situations with on-going analysis included Cote d'Ivoire and the Central African Republic, but the other three were not named. The situations listed below have been cited in the media as where complaints have been submitted to the court.

State Parties

The court has jurisdiction over crimes that are committed in the territory of member countries of the court or by nationals of member countries. The following complaints have been received in this category:

Burundi

In February 2005 the United Nations Secretary General said [3] that three parties to the civil war in Burundi (a member-country of the court) were using child soldiers or committing war crimes against children:

• The Party for the Liberation of the Hutu People of Agathon Rwasa, which was responsible for serious violations including the killing and maiming of children and attacking schools
• The National Council for the Defense of Democracy of Leonard Nyangoma
• The National Council for the Defense of Democracy-Forces for the Defense of Democracy of the current President of Burundi, Pierre Nkurunziza

The Chief Prosecutor has not announced whether he will formally decided to open an investigation into this matter.

Colombia

In February 2005 the United Nations Secretary General said [4] that three parties to the civil war in Colombia (a member-country of the court, but which has temporarily opted out of war crimes jurisdiction, for up to seven years) were using child soldiers or committing war crimes against children:

• The United Self-Defence Forces of Colombia (AUC)
• The National Liberation Army (ELN)
• The Revolutionary Armed Forces of Colombia (FARC)

In April 2006 the UN High Commissioner for Human Rights office in Colombia said [5] that FARC's attacks on civilians were war crimes within the jurisdiction of the ICC.

The Chief Prosecutor has not announced whether he will formally decided to open an investigation into this matter.

Georgia

A complaint has been received alleging that ethnic cleansing has been carried out by the Abkhazian separatists (legally part of Georgia, a member-country of the court) against ethnic Georgians. [6] The Georgian state Minister for Conflict Resolution agreed that "human rights violations as well as crimes against humanity committed during the Georgian-Abkhaz conflict are difficult to dispute". The court has stated in a letter to the complainant that an investigation committee started looking into the case in 2004 and requesting further information. However a formal investigation has not yet been opened. The ethnic cleansing and massacres of Georgians in Abkhazia has been officially recognized by the OSCE convention in 1994 and again in 1996 during the Budapest summit and condemned the “perpetrators of war crimes committed during the conflict.”

Iraq

Main article: The International Criminal Court and the 2003 invasion of Iraq

In March 2003, the United States and its allies, the United Kingdom, Australia and Poland invaded Iraq. The UK, Australia and Poland are all parties to the ICC Statute and therefore their nationals are liable to prosecution by the court for any relevant crimes. As the United States is not a party, American citizens can only be prosecuted by the court if the crime takes place in the territory of a state party (e.g. Jordan), or if the situation is referred to it by the Security Council.

The Office of the Prosecutor of the International Criminal Court reported in February 2006, that it had received 240 communications in connection with the invasion of Iraq in March 2003 which alleged that various war crimes had been committed. Many of these complaints concerned the British participation in the invasion, as well as the alleged responsibility for torture deaths whilst in detention in British-controlled areas.

On 2006-02-09, Luis Moreno-Ocampo, Chief Prosecutor of the International Criminal Court, published a letter [7] that he had sent to all those who had communicated with him concerning the above, which set out his conclusions on these matters, following a preliminary investigation of the complaints. He explained in his decision letter, that essentially two sets of complaints were involved.

1. Complaints concerning the legality of the invasion itself;
2. Complaints concerning the conduct of hostilities between March and May 2003, which included allegations in respect of
   1. the targeting of civilians or clearly excessive attacks;
   2. willful killing or inhuman treatment of civilians.

The Prosecutor's conclusions were as follows:

1. He did not have authority to consider the complaint about the legality of the invasion. Although the ICC Statute includes the crime of "aggression", it indicates that the Court may not exercise jurisdiction over the crime until a provision has been adopted which defines the crime and sets out the conditions under which the Court may exercise jurisdiction with respect to it.
2. The available information did not provide sufficient evidence for proceeding with an investigation of the complaints in connection with targeting of civilians or clearly excessive attacks.
3. The available information did provide a reasonable basis for believing that there had been an estimated 4 to 12 victims of willful killing and a limited number of victims of inhuman treatment, totaling in all less than 20 persons. However this on its own was not sufficient for the initiation of an investigation by the ICC because the Statute requires consideration of admissibility before the Court, in light of the gravity of the crimes. Bearing in mind that a key consideration in this regard is the number of victims of particularly serious crimes, he concluded that the situation did not appear to meet the "gravity" threshold.

On 7 July the defense lawyers for Saddam Hussein wrote to the court, saying that the treatment of Hussein was a breach of the Geneva Conventions and hence a war crime. [8]

South Africa

Lawyers representing Khalid Rashid have made a complaint to the court regarding his arrest in South Africa and alleged extraordinary rendition. The court refused his lawyer's request for assistance in finding Rashid, saying his case was outside the jurisdiction of the court.

Venezuela

On April 11, 2002 clashes between supporters and opponents of Presıdent Hugo Chávez during an attempted coup lead to complaınts that Chávez committed crimes against humanity. In February 2006, the court Prosecutor, concluded that, thus far, the requirements to continue the investigation have not been satisfied according to the Rome Statute.

Non State Parties

The following complaints relate to crimes that are not alleged to have been committed in the territory of a member country nor by a national of a member country. The court would only be able to investigate if the situation was referred to it by:

• The country where the crime took place
• The country whose national committed the crime, or
• The United Nations Security Council under Chapter 7 of the UN Charter

Following a referral the prosecutor would be obliged to investigate all relevant crimes committed by all parties in the referred situation.

Bhutan

Nepali-speaking refugees from Bhutan have accused the Bhutanese government of "rape, torture and ethnic cleansing" in respect of the expulsion of Nepalese from Bhutan, and have said they will file a complaint with the court.

Iran

The Israeli newspaper, Haaretz, reported that the European Jewish Congress is to file a complaint with the ICC against Iranian President, Mahmoud Ahmadinejad, alleging his call for Israel to be "wiped from the map" amounted to incitement to genocide.[9]

Israel

In November 2006, the government of Yemen called on the UN Security Council to refer Israel to the court to "to look into barbarian crimes and inhuman acts committed by Israeli forces in Beit Hanoun and Jeneen of Gaza." This was in connection with Operation Summer Rains. Amnesty International has also characterized the allegedly deliberate attacks by Israeli forces against civilian property and infrastructure in the Gaza Strip as "war crimes" However a referral is considered unlikely as it would likely be opposed by the United States.

Lebanon

The Lebanese Foreign Minister, Fawzi Salloukh, has called for Israelis to be prosecuted at the court in connections with the 2006 Israel-Lebanon conflict. He accused Israelis of committing a war crime with the bombing of Qana., and this was repeated by the Interior Minister, Ahmad Fatfat on 2 August who said "a file was being prepared". On 3 August Justice Minister Charles Rizk said that he would be submitting a file to the Security Council asking them to create a special court, similar to the Rwanda Tribunal, as neither Lebanon nor Israel are members of the ICC. On 2 September Rizk formed a committee of legal and media personnel to gather evidence of war crimes for possible submission to the court. Individuals have also made official complaints to the court prosecutor.

In July Jean Ziegler, the United Nations Special Rapporteur on the Right to Food, called for an investigation into whether Israel committed war crimes by attacking supplies of food and water. Israel has admitted using white phosphorus during the war, a chemical weapon which is banned by the Geneva Conventions when used against civilians or in civilian areas, but allowed when used for illumination. Doctors in southern Lebanon said they suspected burns victims had been caused by white phosphorus.

Meanwhile a human rights lawyer in the United Kingdom - a member of the court - is taking legal action under the International Criminal Court Act, accusing British government officials of complicity in Israeli war crimes by allowing the transfer of weapons from the United States via UK airports

Another British law firm has suggested that Israeli use of cluster bombs would also be a war crime.

On September 14, 2006, Amnesty International released a report accusing Hezbollah of war crimes during the 2006 conflict with Israel.

Somalia

In May 2006 a Somali warlord, Musa Sudi Yalahow was reported to have ordered his militiamen to take over Keysaney Hospital in northern Mogadishu, a move that may contravene the laws against war crimes. A Somali NGO, the Somali Justice Advocacy office wrote to the court requesting that it investigate this as a war crime.

Somalia is not a party to the court, and therefore would have to consent or be referred by the UN Security Council in order for the court to have jurisdiction.

In June 2006 the regional body IGAD threatened to do this to warlords it termed "spoilers". [10]

In April 2007, an observer in Somalia from the European Union claimed that soldiers from Ethiopia and Somalia's Transitional Federal Government had targeted Somali civilians as part of the ongoing War in Somalia, and that Ugandan peacekeepers from the African Union Mission to Somalia had stood by while this happened. Although neither Somalia nor Ethiopia are court members, Uganda and three other AMISOM troop-contributors are, and could be charged with complicity in the war crime.

Sri Lanka

In July 2006 a Sri Lankan American expatriate organisation, the Sri Lankan Patriots, called on the Tamil Tigers to be prosecuted for using child soldiers. [11] Tamils have also called for government members to be prosecuted before the court for an attack on a girls' school in LTTE-controlled territory in August 2006.

Sri Lanka is not a party to the court, and therefore would have to consent or be referred by the UN Security Council in order for the court to have jurisdiction.

Thailand

Former Senator Kraisak Choonhavan called in November 2006 for former premier Thaksin Shinawatra to be investigated for crimes against humanity connected to 2,500 alleged extra-judicial killings carried out in 2003 against suspected drug dealers. This would first require Thailand to ratify the court and to accept retrospective jurisdiction. In response, the Justice Minister, Charnchai Likhitjitta, said that ratification had been discussed by the cabinet but needed "careful deliberation" as any decision would affect all Thais.

Zimbabwe

In 2005, Australia and New Zealand called on the United Nations Security Council to refer the situation in Zimbabwe to the court. This followed a call in 2004 by the International Bar Association for an ICC prosecution. The Foreign Affairs Select Committee of the British House of Lords has called on Britain to lead an international campaign to refer the situation to the court A Zimbabwe government spokesman described the calls as spurious and "an attempt to tarnish the image of the president and country". The call was also echoed by the Namibian National Society for Human Rights in February 2007.

Prosecutions under complementarity

Under the court's complementarity provisions, member-countries are expected to prosecute their nationals where they are accused of crimes under the jurisdiction of the court. In fact, the International Criminal Court is unable to investigate or prosecute under this principle unless the national court is unavailable or ineffective in doing so. This is to avoid supranational supplantation of national judicial systems and to potentially strengthen them by allowing the national judiciary to function and gain valuable experience within their jurisdiction.

Germany

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.

United Kingdom

In the United Kingdom, four soldiers are currently on trial under ICC implementing legislation for war crimes against Iraqi detainees following the 2003 invasion of Iraq. :

• Cpl Donald Payne - manslaughter or inhumane treatment
• L/Cpl Wayne Crowcroft - inhumane treatment
• Pte Darren Fallon - inhumane treatment
• Sgt Kelvin Stacey - actual bodily harm, alternatively assault

Payne pleaded guilty to inhuman treatment.