Complementarity in the Cote d’Ivoire – Guest Post by Traoré Drissa

Editor’s Note: Beyond The Hague is delighted to publish this review (in French) of the International Center for Transitional Justice (ICTJ) Handbook on Complementarity by Traoré Drissa, a human rights lawyer in the Cote d’Ivoire who assesses the complementarity issues at play in his home country, and how the handbook can assist national structures. An English version is available here.

Note de la rédaction: Beyond The Hague est heureux de publier cette revue du Guide de la complémentarité préparer par le Centre international pour la justice transitionnelle (ICTJ). L’auteur est Traoré Drissa, avocat des droits de l’homme en Côte d’Ivoire, qui évalue les questions de complémentarité dans son pays, et comment le Guide peut aider les structures nationales.


Par Traoré Drissa, Avocat au Barreau d’Abidjan, Vice-Président de la Fédération Internationale des Ligues des Droits de l’Homme (FIDH)

Le renforcement des systèmes judiciaires nationaux constitue le gage de l’efficacité de la lutte contre l’impunité et de la prévention des crimes les plus graves. Cependant en raison de la défaillance des juridictions nationales, lors de conflits armés de grande ampleur, les Etas ont décidé de la création de la Cour Pénale Internationale (CPI).

Simone GbagboSimone Gbagbo at opening hearing of trial for crimes against humanity (photo: AFP)

L’ouvrage préparé et publié par le Centre International pour la Justice Transitionnelle (ICTJ) intitulé « Guide de la complémentarité » permet aux professionnels et aux moins avertis de pouvoir comprendre le fonctionnement de la CPI et surtout sa relation avec les juridictions nationales, dans le cadre cette lutte contre l’impunité.

Il permettra de faire tomber certaines barrières notamment l’accusation portée contre la CPI par une certaine opinion africaine qui la taxe d’être un instrument « néocolonial » ou de domination des peuples africains par l’occident. Le lecteur comprendra aisément que la CPI, organe international de lutte contre l’impunité ne peut trouver de compétence qu’en raison de la défaillance des juridictions nationales. En d’autres termes si les juridictions nationales font leur travail, la CPI ne pourra pas intervenir.

Expérimentation de Modes de Justice internationale : des tribunaux ad hoc à la CPI

L’on doit retenir que les situations de conflits internationaux et même de confits internes ou aujourd’hui asymétriques (terrorismes…) ont donné lieu à l’expérimentation de diverses méthodes de justice. Les Tribunaux ad ’hoc et spéciaux ont été mis en place. L’on est passé des  Tribunaux de NUREMBERG et de TOKYO après la deuxième guerre mondiale au Tribunal Pénal International (TPI) pour le RWANDA et celui pour l’ex-YOUGOSLAVIE ainsi que le Tribunal Spécial pour la Sierra-Léone et récemment les Chambres africaines extraordinaires  instituées par l’Union Africaine auprès de la Justice Sénégalaise pour juger l’ancien Président Tchadien Hissène Habré.

La particularité de ces juridictions ad ‘hoc était de connaitre d’infractions graves commises avant leur institution. Elles avaient une primauté sur les juridictions nationales pour les faits dont elles étaient saisies c’est–à-dire si une juridiction nationale se trouvait saisie simultanément avec l’une de ces juridictions ad ‘hoc selon leur sphère de compétence, la juridiction nationale devait se dessaisir à leur profit.

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Meaningful victim participation – but only if you can pay for it?

 

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Near Gulu, Uganda

 

On May 26th, the Single Judge of the Trial Chamber IX denied legal aid to 2/3 of victims participating in the Ongwen case – the ICC’s only case so far in relation to the Lord’s Resistance Army rebellion that for years terrorized communities in northern Uganda. The Single Judge’s decision does not come as a complete surprise: it affirms the interpretation of rules on financial  assistance for victims proposed by the Pre-Trial Chamber in November 2015, which I wrote about previously. In a broader perspective, it is not only a decision on legal aid, it is a step towards focusing victims’ representation with the ICC’s Office of Public Counsel for Victims (OPCV) and limiting victims’ procedural rights, specifically victims’ right to choose their legal representative.

Currently, a total of 2064 victims are admitted to participate in the trial, scheduled to begin in December. Why were 1434 of these victims denied legal aid? Have they failed to prove their indigence? Have their lawyers failed to meet the standards of quality and cost efficient representation?  No. The reasons underlying the Single Judge’s decision have nothing to do with the victims’ indigence or performance of their counsel. The 1434 victims were denied legal aid because they agreed to choose the same representative without engaging the Court’s assistance. Unlike the remaining 592 victims, who made no decision on their legal representation and for whom the Chamber appointed the ICC’s OPCV to act as a Common Legal Representative (CLR), these 1434 victims have fully exercised their freedom to choose a legal representative in accordance with the rules. Importantly, their choice has been approved by the Court as being without prejudice to the effectiveness of proceedings. This decision strikes a blow to meaningful victim participation, it is based on a mid-reading of the rules and is inconsistent with previous practice of the Court. Continue reading

Representation of victims in the Ongwen case

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The Hague to Gulu, Uganda (photo: Google maps)

The confirmation of charges hearing in the case of Dominic Ongwen has begun. Many victims of the conflict in northern Uganda have been waiting for this moment for the past ten years. More than 2000 victims had been admitted to voice their views and concerns in the case brought by the Prosecutor against one of the top LRA commanders. How will they do that? Through their legal representatives standing in a court room in The Hague, 10,000 km north of where most of the participating victims reside.

Inclusion of victims in the ICC proceedings has been and continues to be one of the most hailed features of the Rome Statute system. There are many doubts, however, as to how it is being implemented. In light of the ongoing (never ending?) debate on “meaningful participation” of victims in ICC proceedings, it is worth looking at the recent developments in the Ongwen case regarding victims’ representation. The effectiveness of victims’ participation in the ICC proceedings depends largely on the performance of their counsel.

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Reparations and Assistance for Victims: Lessons from the ICC and Colombia

This post is based on my new paper in the International Journal of Transitional Justice’s forthcoming special issue, “Reconsidering Appropriate Responses to Victims of Conflict,” guest edited by Juan Mendez. Comments are welcomed!

In March 2015, the Appeals Chamber of the International Criminal Court issued its first-ever judgment on reparations, in the Thomas Lubanga Dyilo case, confirming the Court’s historic commitment to moving beyond retributive justice for victims of the gravest crimes. At the same time, it urged the Court’s Trust Fund for Victims (TFV) to issue assistance measures to victims who fall outside the scope of victimization determined at trial [Reparations Judgment, para. 215]. The use of assistance to complement, fill in, or expand reparations programs is both novel and increasing in international law and transitional justice, yet there is little research focused specifically on their combination.

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A Peace March supported by the Colombian Victims’ Unit, which implements reparations and assistance for victims of the armed conflict. Source: Victims’ Unit

In my paper in the forthcoming special issue on victims in the International Journal of Transitional Justice, edited by Juan Mendez, I present two contemporary examples where reparations and assistance are being combined for victims of grave crimes: the ICC’s forthcoming reparations awards in the Democratic Republic of the Congo [see here and here] and Colombia’s recent reparations program – Law 1448 – for victims of its armed conflict.

The relationship between ‘reparations’ and ‘assistance’ exposes fundamental tensions at the heart of transitional justice: between inclusive and exclusive approaches to reparative justice; between the legal strictures of redress and the complex realities of violence; and, ultimately, between the supposed symbolic power of reparative justice and victims’ experience of reparations in practice. While scholars and practitioners often assume that reparations and assistance are clearly distinct, their combination suggests otherwise. Both the ICC and Colombian cases highlight that the line between reparations and assistance can become blurry in practice. They can look similar in form, have similar impacts, be distributed through similar processes and, I argue, impart similar notions of responsibility and recognition to victims of grave crimes and gross violations of human rights.

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Recent attacks show that Boko Haram remains far from broken, and is drawing closer to ISIS

By Alex Fielding, @alexpfielding

This article is cross-posted from the National Post. A “preliminary investigation” by the ICC Prosecutor into possible crimes against humanity and war crimes in Nigeria has been ongoing since 2010. The investigation is currently in the Phase III “Admissibility” stage, where the prosecutor is determining whether the Nigerian government’s proceedings “are substantially the same as those that would likely arise from an investigation” by her office and whether “those most responsible for the most serious crimes are being brought to justice.”

Boko Haram’s pledge of allegiance to the Islamic State on March 7 did not initially result in noticeable changes on the ground. Boko Haram’s recent targeting of moderate Muslim clerics, evangelical churches and perceived “non-believers” during Islam’s holy month of Ramadan, however, has made that pledge a reality.

Abubakr Shekau, leader of Boko Haram (photo: AFP)

Abubakr Shekau, leader of Boko Haram (photo: AFP)

Since the May 29 inauguration of President Muhammadu Buhari, a former military ruler who hails from Nigeria’s Muslim north, Nigeria, Chad and Cameroon have witnessed a significant resurgence of Boko Haram attacks. This comes after a series of territorial defeats in which Nigerian and Chadian-led regional counterinsurgency forces recaptured large swaths of territory in northeastern Nigeria from Boko Haram control.

Many of the attacks in recent weeks have been classic Boko Haram, marking a return to its militant roots with suicide bombings in urban markets and government buildings, as well as raids on villages across northeastern Nigeria. However, there have been two notable new developments that warrant special attention.

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Reparations in Ituri: A Long Awaited Judgment in the Lubanga Trial

Yesterday the Appeals Chamber (AC) of the International Criminal Court (ICC) delivered its judgment on the appeals against the Trial Chamber (TC)’s Decision Establishing the Principles and Procedures to be applied to Reparations (decision on reparations) in the case against Thomas Lubanga. This landmark ruling, together with the recent judgments in the Lubanga and Ngudjolo cases and the decision not to appeal the trial judgment in Katanga, are clear signs that the ICC is getting ready to deliver its first ever reparations. The unfolding of this reparative process in the Ituri district of the DRC highlights the challenges the ICC faces in trying to reconcile the notion of individual criminal responsibility with the mass scale of the crimes over which it holds jurisdiction. It further provides an acute illustration of the key tensions stemming from the fact that the ICC judicial process aims to be not merely punitive but also reparative.

Ituri District: Where forthcoming reparations will now seek to repair the harm from a war that happened over ten years ago

(For background on the Ituri war and trials, we’ve written extensively about the region, all of which you can find here.)

In its decision on reparations, the TC underlined the importance of reparations, both as a “well-established and basic human right” and as a reflection of the “need to go beyond the notion of punitive justice.” While noting that reparations oblige the convicted person to repair the harm he or she caused, the TC found that they could contribute more broadly to the communities that were affected and assist in promoting reconciliation. In yesterday’s judgment, the AC seems to have adopted the same approach.

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Has the Pre-Trial Chamber jeopardized the Gbagbo trial at the International Criminal Court?

Beyond The Hague welcomes Matthew Gillett for this guest post on the Gbagbo case at the ICC.  Matthew is currently a Legal Officer with the Office of the Prosecutor at the International Criminal Tribunal for the Former Yugoslavia (ICTY) and was a member of the New Zealand delegation to the Review Conference of the International Criminal Court (ICC) in 2010. The views expressed in this article are those of the author alone and do not necessarily reflect the views of the United Nations, the New Zealand Government or Beyond The Hague. The author would like to thank Manuel Ventura for his insightful comments.

On 12 June 2014, Pre-Trial Chamber I (“PTC”) of the International Criminal Court (“ICC”) issued its conformation decision concerning the charges against the former President of Cote d’Ivoire – Laurent Gbagbo. Problematically, the majority decision of the PTC confirmed the charges for modes of liability under article 25 but declined to confirm the charges for superior responsibility under article 28. This outcome is difficult to reconcile with the PTC’s earlier findings in the confirmation decision. It results in the Trial Chamber receiving a proceeding that has been straight-jacketed into a mould that the facts may not ultimately fit. Indeed, Judge Van den Wyngaert in her dissenting opinion found that the facts were insufficient to satisfy article 25 even on the relatively permissive article 61(7) standard, but she would have confirmed under article 28 in part. In these circumstances, the spectre of regulation 55 re-characterization lurks in the background, along with its attendant potential prejudice to the integrity and efficiency of proceedings.

Laurent Gbagbo at the ICC, photo: Telegraph

Laurent Gbagbo at the ICC, photo: The Telegraph

Under the applicable standard set forth in article 61(7) of the Rome Statute, the PTC assessed whether it had been provided with sufficient evidence to establish substantial grounds to believe that Laurent Gbagbo was responsible for each of the crimes charged. The PTC confirmed the modes of liability ofco-perpetration under article 25(3)(a), ordering, soliciting or inducing under article 25(3)(b), and contributing to a group with a criminal purpose under article 25(3)(d), and committed the case for trial. However, it declined to confirm Gbagbo’s superior responsibility for the charges under article 28(a) or (b) despite the request of the Office of the Prosecutor (“OTP”) to do so.

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