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Checking on the Health of the International Criminal Court


Dominic Ongwen, reportedly a commander in the Lord's Resistance Army, pleaded not guilty for war crimes and crimes against humanity committed in northern Uganda. ICC-CPI
Dominic Ongwen, reportedly a commander in the Lord’s Resistance Army, pleaded not guilty at the opening of his trial at the International Criminal Court on Dec. 6. He is accused of committing war crimes and crimes against humanity in northern Uganda. ICC-CPI

THE HAGUE — At the glassy, eco-minded new building of the International Criminal Court here in the Netherlands’ capital, people who are being tried may still be called “detainees,” but make no mistake: they remain accused of such atrocities as murder, torture and child-soldier recruitment as well as gang-raping women and girls.

It’s business as usual at the world’s only court to try individuals for war crimes, crimes against humanity and genocide. Despite persistent criticism of the court stemming from certain quarters of the world and manifested by successive announcements this fall of three African countries — Burundi, Gambia and South Africa — withdrawing as members of the court, four men stand trial. They are Bosco Ntaganda, a Congolese militia commander; Laurent Gbagbo, an ex-president of the Ivory Coast; Charles Blé Goudé, another Ivoirian politician; and Dominic Ongwen, a Ugandan rebel.

The court’s chief prosecutor, Fatou Bensouda, is from Gambia, a slim country sandwiched into Senegal, but her nationality has not deterred dissatisfaction with the court’s perceived focus on Africa. Kenya and Gabon, which have also threatened to withdraw, appear to have been mollified at a recent conference of the court’s governing body in The Hague, an advocate in New York said. And in Gambia, a newly elected president announced he would reverse the country’s withdrawal from the court, but that election has recently been disputed by the loser, Yahya Jammeh, who holds the office now, .

In fact, money is the court’s biggest threat, say its supporters, given its expenses for prosecuting cases and accommodating victims and witnesses as much as possible. The 2017 budget consists of $156 million, of which Japan is the largest donor.

The trial of Dominic Ongwen opened Dec. 6. He is accused of being a commander of the notorious Lord’s Resistance Army, or LRA, and committing such crimes as forced marriages, attacks on displaced persons’ camps, pillaging and other “inhumane acts” in northern Uganda. He pleaded not guilty.

“This trial is about violence and misery that blighted the lives of millions of people living in Northern Uganda,” Bensouda said in her opening statement. “Ordinary civilians, who simply wanted to be allowed to live their lives in peace, could no longer live in the villages in which they had been born and raised.”

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The court’s eight convictions in 14 years have all been against African men. These include Jean-Pierre Bemba, a Congolese vice president found guilty in 2016 of war crimes and crimes against humanity committed in the Central African Republic (he is appealing the verdict); Thomas Lubanga, a Congolese guilty of using child soldiers in his country, where he is serving his sentence; and Germain Katanga, also Congolese, for murder and attacking civilians, among other crimes. He is still being held at The Hague’s detention center.

The court, known as the ICC, has other cases where charges were not confirmed or vacated or arrest warrants were withdrawn when a suspect died. Some arrest warrants are also pending.

Conditions in the detention center have been reported as Spartan but comfortable and defendants can mingle and even cook their own meals; conjugal visits are allowed. The Dutch government, however, discourages long-term imprisonment in The Hague, so members of the court outside the Netherlands are encouraged to take prisoners, but no country is racing to fill that role.

Another African, from Mali, was found guilty in September 2016 of desecrating historic and sacred sites in Timbuktu in 2012. Ahmad al-Faqi al-Mahdi, a Tuareg and Islamist scholar linked to the terrorist group Al Qaeda in the Islamic Maghreb, was the first person indicted by the court to plead guilty. He has been sentenced to nine years’ imprisonment, of which he has served 18 months so far at The Hague, since his arrest. As to where he will serve the rest of the sentence remains unclear.

A court spokesman said that negotiations were underway for a participating country to take him in. Technically, Mahdi could receive a reduced sentence after six years in prison, especially because he has not committed violence against people.

According to a Malian journalist knowledgeable with the case, Mahdi’s wife and family have moved to The Hague and he is offering information to the court about Al Qaeda. But the court’s spokesman, Fadi El Abdallah, emphasized that Mahdi would not serve the remainder of his sentence in The Hague and that he had “no information” regarding Mahdi’s family or a plea deal.

tktktktk ICC-CPI found guilty of attacking historic and religious buildings in Timbuktu, Mali, by the court ofon Sept. 26, 2016
Ahmad al-Faqi al-Mahdi, a Tuareg who pleaded guilty of attacking historic and religious buildings in Timbuktu, Mali. He was recently sentenced to nine years’ imprisonment. ICC-CPI

The trial of Bosco Ntaganda began in September 2015, nine years after his arrest warrant was issued. According to court records, Ntaganda, a Rwandan-born Congolese, commanded the FPLC militia, or the Patriotic Force for the Liberation of the Congo. He turned himself in to the court in 2013 through the United States Embassy in Rwanda, which whisked him off to The Hague. Ntaganda is accused of war crimes and crimes against humanity in the Democratic Republic of the Congo. The charges include many heinous acts: murder, sexual slavery, rape, conscripting child soldiers and forced displacement of people. He has pleaded not guilty.

Ntaganda was observed closely through a glassed-in visitors’ balcony above a small courtroom in late November, during a public tour of the ICC. As he sat on the defense side watching the proceedings on a computer screen in front of him and listening with headphones, like everyone else in the room, a witness gave testimony, unseen below the balcony.

Three judges — a Czech, Japanese and South Korean — presided from their bench in the middle of the room, while in front of them court officers and assistants worked. The prosecution sat across the room from the defense, security guards were parked amid both camps, and translators were squirreled off in their booths. The ICC does not use a jury.

Although audio in the courtroom was not available to visitors the afternoon we toured because the trial was “closed” that day, we paid attention to Ntaganda’s every move, including his glances toward the balcony, as if we could be his next victims. Wearing a black suit, white shirt and red tie and sporting a pencil mustache, Ntaganda looked ordinary, almost like a businessman, impeccable to the outside world. Gone were his militia uniform of red beret and fatigues.

Yet when reading the accusations against him — starting with widespread attacks against civilians on an ethnic basis — and noting the number of victims, 2,149 by the court’s count, his demeanor became even more compelling to study.

His nickname, after all, was the Terminator, but his clean-cut appearance as a defendant only reinforces the value of the court, its advocates contend. For many of the defendants, their trials represent the first time in their lives they have ever faced a legitimate authoritative institution, and the effects can be transformative in a positive way.

To go on a tour of the ICC is to take a shallow but impressionable dive into a setting that appears on every level to be modern, orderly and devoid of blood. Even the case sheets have been sanitized of sordid details, forcing anyone who wants to read the court records to hunt around the ICC’s website, which has been redesigned but still stumps navigators.

The tour was free and open to the public, although groups should make reservations. It began in the court’s sunny, pristine lobby, where a brief exhibition provides basic information about the ICC and features video and oral testimony from victims. The tour guide the day we attended was a young woman from Central Asia. The court’s new permanent building officially opened in April 2016.

The guide took us into a small room, where we were treated to a video presentation of the court and she elaborated on its unique setup: the crimes it prosecutes, its legal procedures, the governing treaty and governing body, reparations to victims and the hierarchy of investigations themselves. The court, she reminded us, prosecutes the world’s most serious crimes — genocide, for one — but has no enforcement authority when an international arrest warrant is issued. Omar Al-Bashir, the president of Sudan, for example, has been indicted by two arrest warrants from the court, in 2009 and in 2010, but remains at large.

Instead, the court relies on cooperation among its 124 members and other countries (like the US, which is not a member) to turn a wanted person in, although Bashir is a blatant case of some member countries, like South Africa, not cooperating to arrest and deliver him to The Hague. Bashir traveled to South Africa in 2015, but the government let him leave, claiming he had immunity from prosecution. As a follow-up, the ICC is holding a hearing in April on the noncompliance of South Africa to surrender Bashir.

As the tour guide said optimistically, “It will take time for major powers to join in the court, but they can provide cooperation.” (Russia and China are also nonmembers.)

The guide’s expertise seemed spotty at times. When she took questions from the group, she insisted, at one point, that Ntaganda had been arrested by the US embassy in Rwanda, despite the news accounts reporting otherwise. She also did not know how many of the court’s 18 judges are African (four). A third of the judges are women.

Nevertheless, the guide projected herself as a staunch defender of the ICC: she proudly noted the rapid conclusion of Mahdi’s trial, in five days; and when a visitor asked the “big question” about withdrawals by African nations from the court, which take a year to finalize, she suggested that decisions could be reversed through new leadership in the countries. (Pressures on Jacob Zuma, the president of South Africa, to resign failed in late November.)

The guide noted that new countries continue to join the court, such as El Salvador.

The inevitable question came up about Syria and its gruesome civil war, where atrocities are reported almost hourly. The court, we were reminded, has no jurisdiction over Syria, since it is not a member. To which some in the tour group heaved a long sigh of despair.

One person in the group who lives in The Hague found the tour helpful to get a feel of the building, she said. Simone Filippini, a former chief executive of the Dutch charity Cordaid and an ex-diplomat, added that she was keenly interested in anything to do with justice and that she hoped the court wouldn’t “cease to exist,” as some countries sought to undermine it.

Her city, she suggested, could promote annual tours of its “peace and justice” institutions (The Hague is also home to the International Court of Justice), a prominence that the Dutch may take for granted. “Our backyard is relatively clean,” Filippini said of the Netherlands, “and we have to keep it up.”

Visitors to the ICC on Sept. 25, 2016, in a public gallery overlooking a courtroom. ICC-CPI
Visitors to the ICC on Sept. 25, 2016, in a public gallery overlooking a courtroom. The court offers free guided tours to the public during which observing trials can take place. ICC-CPI

Besides trials, the court has 10 preliminary examinations (about a third originating in Africa), which determine whether an investigation ensues, and 10 investigations underway. In the latter, only one, Georgia, is outside Africa.

At its heart, the court’s legal and physical structure is meant to dignify and protect the witnesses and victims of the crimes being tried as much as it can, given the harrowing experiences people have endured and how much the prosecution relies on their accounts to succeed. Victims have their own private corridors to traverse, for example, and separate hallways keep the defense team from encountering the prosecution.

Like other trials at the court, the one of Dominic Ongwen promises to take a long time to complete. As described in court records, Ongwen was a commander operating from the “control altar” of the Lord’s Resistance Army, giving orders to attack internally displaced persons’ camps in Uganda to loot food stocks and kidnap victims to replenish its army.

Ongwen was reportedly recruited as a child soldier in the LRA, and his status as a child abductee may be relevant to his legal defense, says Human Rights Watch. His defense team has indicated it intends “to raise duress as an affirmative defense to exclude his culpability for the alleged charges” — which include 70 counts of war crimes and crimes against humanity.

The LRA, led by Joseph Kony, who eludes manhunts by the US and countries in Central Africa, aimed to overthrow the Ugandan government when he first started his rampage. To keep going, he centered assaults on displaced persons’ camps to not only keep the militia supplied but also to gain international attention.

Although supposedly reduced in numbers, the LRA still terrorizes innocent people, mostly now in eastern Central African Republic, a lawless turf. Since 2014, the militia has been relying on elephant poaching and ivory trafficking to generate money to to buy weapons, and the US sanctioned two LRA commanders this summer who happen to be Kony sons, Ali and Salim, for attacks against civilians.

On Dec. 6, the charges against Ongwen were formally read to him and he submitted his not guilty plea; the trial will resume in January 2017. More than 4,000 victims have signed up to participate in the proceedings, enabling them to comment on the case separately from witnesses. As documented in court records, witness testimony could graphically describe instances of people who were kidnapped being forced to kill and eat other abductees while sitting on their dead bodies. Or of LRA soldiers breaking babies’ necks, throwing them into sacks and tossing them into the bush.

The trial opening was broadcast live in northern Uganda and in Kampala, the capital.

Despite the court’s dry language, the sense of justice finally arriving resonated on opening day. “I am here today to bear witness to a special day for the victims in Northern Uganda, it is the moment that they have been waiting and hoping for, for many years,” said the court’s registrar, Herman von Hebel. “The victims are present in the courtroom in The Hague through their legal representatives, and the Court is present in the field with the victims.”

A few weeks earlier, back at the Ntaganda trial, taking place in Courtroom 3, a neutral setting of gray walls and blond-wood floors, three judges presided. They were dressed in somber robes accented with long white ties, as if plucked from a Rembrandt at the Rijksmuseum in Amsterdam.

Although the scene became plodding after the sensation of observing Ntaganda wore off, it wasn’t until we departed that we experienced another rare sight, visible only from the top steps of the visitors’ balcony. There, a long rectangular window presents a panorama of heathery dunes leading uninterrupted to the North Sea. In late November, the water came off shockingly blue as a dark tanker appeared unmoving in the center.

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[This article was updated on Dec. 10, 2016.]


Dulcie Leimbach is a co-founder, with Barbara Crossette, of PassBlue. For PassBlue and other publications, Leimbach has reported from New York and overseas from West Africa (Burkina Faso and Mali) and from Europe (Scotland, Sicily, Vienna, Budapest, Kyiv, Armenia, Iceland and The Hague). She has provided commentary on the UN for BBC World Radio, ARD German TV and Radio, NHK’s English channel, Background Briefing with Ian Masters/KPFK Radio in Los Angeles and the Foreign Press Association.

Previously, she was an editor for the Coalition for the UN Convention Against Corruption; from 2008 to 2011, she was the publications director of the United Nations Association of the USA. Before UNA, Leimbach was an editor at The New York Times for more than 20 years, editing and writing for most sections of the paper, including the Magazine, Book Review and Op-Ed. She began her reporting career in small-town papers in San Diego, Calif., and Boulder, Colo., graduating to the Rocky Mountain News in Denver and then working at The Times. Leimbach has been a fellow at the CUNY Graduate Center’s Ralph Bunche Institute for International Studies as well as at Yaddo, the artists’ colony in Saratoga Springs, N.Y.; taught news reporting at Hofstra University; and guest-lectured at the Columbia University Graduate School of Journalism and the CUNY Journalism School. She graduated from the University of Colorado and has an M.F.A. in writing from Warren Wilson College in North Carolina. She lives in Brooklyn, N.Y.

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