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UN Excerpts: ICC references, 15 July to 11 September 2006

12 Sept 2006

Dear All:

In addition to excerpts previously distributed from the Security Council ministerial meeting on Children and Armed Conflict on 24 July 2006, please find below excerpts from UN reports, meetings and resolutions referencing the ICC from 15 July to 11 September 2006. These include:

(1) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention, Conclusions and recommendations of the Committee against Torture, GEORGIA, 25 July 2006

Georgia- Concluding Observations: http://www.ohchr.org/english/bodies/cat/cats36.htm

(2) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention, Conclusions and recommendations of the Committee against Torture, GUATEMALA, 25 July 2006

Guatemala- Concluding Observations:

http://www.ohchr.org/english/bodies/cat/cats36.htm

(3) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention, Conclusions and recommendations of the Committee against Torture, PERU, 25 July 2006

Peru- Concluding Observations:

http://www.ohchr.org/english/bodies/cat/cats36.htm

(4) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention, Conclusions and recommendations of the Committee against Torture, UNITED STATES OF AMERICA, 25 July 2006

United States of America- Concluding Observations:

http://www.ohchr.org/english/bodies/cat/cats36.htm

(5) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention, Conclusions and recommendations of the Committee against Torture, TOGO, 25 July 2006

Togo- Concluding Observations:

http://www.ohchr.org/english/bodies/cat/cats36.htm

(6) Fourth periodic report of the United Nations High Commissioner for Human Rights on the situation of human rights in the Sudan, Deepening Crisis in Darfur Two Months After the Darfur Peace Agreement: An Assessment, Issued by the Office of the United Nations High Commissioner for Human Rights in cooperation with the United Nations Mission in the Sudan (UNMIS), May - June 2006, 25 July 2006

http://www.ohchr.org/english/countries/sd/docs/4thOHCHRjuly25final.pdf

(7) UN Mission in Democratic Republic of Congo (MONUC), Human Rights Division, The Human Rights Situation in the Democratic Republic of Congo (DRC), During the period of January to June 2006, 27 July 2006

Full report: http://www.monuc.org/downloads/HRD_6_month_2006_report.pdf

Executive Summary: http://www.monuc.org/news.aspx?newsID=11931#

(8) Security Council, Reports of the Secretary-General on the Sudan: Report of the Secretary-General on Darfur (S/2006/591), Meeting Record, S/PV.5519, 31 August 2006

http://www.un.org/Depts/dhl/resguide/scact2006.htm

(9) Security Council, Reports of the Secretary-General on the Sudan: Report of the Secretary-General on Darfur (S/2006/591 and S/2006/591/Add.1), Meeting Record, S/PV.5520, 11 September 2006

http://www.un.org/Depts/dhl/resguide/scact2006.htm

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(1) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention, Conclusions and recommendations of the Committee against Torture, GEORGIA, 25 July 2006

"B. Positive aspects [...]

5. The Committee also notes that in the period since the consideration of the last report, the State party has ratified the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography and the Rome Statute of the International Criminal Court. [...]

14. The Committee is concerned about information regarding the existence of agreements which provide that citizens from certain States who are on Georgian territory cannot be transferred to the International Criminal Court in order to be tried for war crimes or crimes against humanity (arts. 6 and 8).

In accordance with articles 6 and 8 of the Convention, the State party should take all the necessary measures to review the relevant terms of those agreements which prohibit the transfer of citizens from certain States who are on Georgian territory to the International Criminal Court."

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(2) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention, Conclusions and recommendations of the Committee against Torture, GUATEMALA, 25 July 2006

"C. Subjects of concern and recommendations [...]

25. In light of the assurances provided by the representatives of the State party that the necessary steps are being taken to ratify the Rome Statute of the International Criminal Court, the Committee encourages the State party to proceed with ratification of the Statute without delay."

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(3) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention, Conclusions and recommendations of the Committee against Torture, PERU, 25 July 2006

"B. Positive aspects [...]

11. The Committee also welcomes the State party’s ratification of the Rome Statute of the International Criminal Court on 10 November 2001, the Inter-American Convention on Forced Disappearance of Persons on 8 February 2002 and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families on 14 September 2005."

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(4) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention, Conclusions and recommendations of the Committee against Torture, UNITED STATES OF AMERICA, 25 July 2006

"C. Subjects of concern and recommendations [...]

39. The Committee invites the State party to reconsider its express intention not to become party to the Rome Statute of the International Criminal Court."

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(5) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention, Conclusions and recommendations of the Committee against Torture, TOGO, 25 July 2006

"C. Subjects of concern and recommendations [...]

16. The Committee is concerned by information received concerning agreements whereby the nationals of some States who are on Togolese territory cannot be brought before the International Criminal Court to be tried for war crimes or crimes against humanity (arts. 6 and 8).

The State party, in conformity with articles 6 and 8 of the Convention, should take the necessary steps to revise the agreements which prevent the nationals of certain States who are on Togolese territory from being brought before the International Criminal Court.

17. The Committee is concerned by the presence on the territory of the State party of the former president of the Central African Republic, Mr. Ange-Félix Patassé, in view of the fact that, on 13 April 2006, the Central African Court of Cassation referred his case to the International Criminal Court for crimes against humanity (arts. 6 and 8).

The State party should take the necessary steps to bring Mr. Patassé before the International Criminal Court, in keeping with articles 6 and 8 of the Convention."

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(6) Fourth periodic report of the United Nations High Commissioner for Human Rights on the situation of human rights in the Sudan, Deepening Crisis in Darfur Two Months After the Darfur Peace Agreement: An Assessment, Issued by the Office of the United Nations High Commissioner for Human Rights (OHCHR) in cooperation with the United Nations Mission in the Sudan (UNMIS), May - June 2006, 25 July 2006

58. "[...] Thirdly, the lack of accountability and the prevalence of a culture of impunity for human rights violations committed in Darfur need to be addressed without delay as set out in Security Council resolution 1591 (2005) which referred the situation in Darfur to the Prosecutor of the International Criminal Court (ICC). Sudanese structures specially set up to deal with crimes in Darfur, such as the Special Criminal Courts, have continually failed to deliver justice and to prosecute high level commanders responsible for human rights offenses. [...]

VII. RECOMMENDATIONS [...]

Sudanese structures specifically set up to deal with crimes in Darfur, such as the Special Criminal Courts, have continually failed to deliver justice and to prosecute high-level commanders responsible for human rights offenses. As such, the judicial system should be urgently strengthened and the Government should cooperate fully with the International Criminal Court (ICC), mandated by the United Nations Security Council to investigate and prosecute international crimes committed in Darfur."

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(7) United Nations Mission in the Democratic Republic of Congo (MONUC), Report, "The Human Rights Situation in the DRC During the Period of January to June 2006," 27 July 2006

"Executive Summary [...]

4. The fight against impunity has seen some positive developments, but overall it has come to a stalemate due to the lack of will and capacity to investigate and prosecute serious human rights violations by the Congolese authorities. In February, Thomas Lubanga was handed over by the DRC authorities to the International Criminal Court (ICC) to be tried for crimes committed during the conflict in Ituri District. Domestic military courts delivered four important judgements: in Ituri, an officer was convicted of war crimes; in Bukavu, a former army officer was convicted for recruiting children in the armed forces; and in Equateur, 48 soldiers were found guilty of rape, murder and looting, as crimes against humanity, in two separate trials. These judgements have created important new jurisprudence for the DRC, each representing the first-time verdicts reached for such crimes. MONUC also welcomes the direct application of the Rome Statute by military courts. [...]

Fight against Impunity

45. MONUC welcomes the positive steps taken in the fight against impunity, but is increasingly concerned that the vast majority of human rights violations committed by members of security forces remain unpunished, even when investigations were undertaken and some of the suspects are in custody.

46. Thomas Lubanga, founder and former chief of the UPC, an Ituri militia group, in detention in Kinshasa since March 2005, was charged by the International Criminal Court for enrolment of children into armed forces and transferred to the Court's headquarters in the Hague on 17 March 2006. Domestic courts delivered four important judgements. On 17 March, the Tribunal Militaire de Garnison de Bukavu found Colonel Biyoyo, formerly of the dissident Mudundu 40 group, guilty of recruiting children. This was the first judgement in the history of the DRC when an individual was sentenced for having recruited children into an armed group11. In April, the Tribunal Militaire de Garnison de Mbandaka sentenced seven soldiers to life for crimes against humanity (rape and looting) committed in Songo Mboyo, Equateur province, in December 2003, and granted reparations to the victims. In June, the Equateur Military Court (Appeals Chamber) confirmed this judgment for the most part, acquitting one of the seven for lack of evidence. Also in Mbandaka, 42 soldiers were found guilty of crimes against humanity (rape and murder) and other crimes by the Tribunal Militaire de Garnison on 21 June, in the trial for crimes committed during a mutiny on 3-5 July 2005 in Mbandaka.

47. MONUC welcomes the direct application of the ICC Rome Statute by the military courts in these judgements. This jurisprudence, recently confirmed by the Haute Cour Militaire, presents several important advantages. First, judges apply the definitions of international crimes according to international law, as the definitions contained in Congolese military law are less precise and less complete. Second, it permits the application of the ICC Rules of Procedure and Evidence, granting more protection to victims and defendants. For example, victims of rape in the Songo Mboyo trial were granted in camera hearings on the basis of the ICC Rules of Procedure. Third, the courts have decided to apply the sentences envisaged in the ICC Statute, thus excluding the application of the death penalty. This jurisprudence could mark an important step in the march towards the abolition of his sentence.

48. On the other hand, there have been unjustifiable delays in delivering justice in other potentially landmark cases. [...]

49. The lack of any progress into crimes committed by Mayi-Mayi groups in Katanga is also a cause for serious concern. [...]

50. A number of important Ituri warlords remain at large and continue to enjoy impunity for their crimes. [...]

52. In all the above-mentioned cases, the reluctance of the judicial authorities to progress in their investigations can be attributed mainly to undue external interference, but also to the lack of will, resources and capacity. [...]

53. MONUC is also concerned with the extent of jurisdiction enjoyed by military courts under Congolese law. Not only all crimes, including crimes under international law, committed by army and police members, but also crimes committed by civilians with "weapons of war" (armes de guerre) fall under the jurisdiction of military courts. [...] A reform to bring Congolese legislation in line with international principles should be one of the priorities of the future Parliament. This could be achieved through the prompt adoption of the law implementing the ICC Statute. [...]

Protection of Victims, Witnesses and Human Rights Defenders [...]

82. In certain cases, MONUC facilitated transport of individuals to safe places. [...] In March 2006, MONUC gave temporary shelter to a witness of the International Criminal Court (ICC) after the witness in a case currently under investigation by the ICC had received credible threats against his life. Such assistance is provided according to Article 17(8) of the Memorandum of Understanding between the United Nations and the ICC.

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(8) Security Council, Reports of the Secretary-General on the Sudan: Report of the Secretary-General on Darfur (S/2006/591), Meeting Record, S/PV.5519, 31 August 2006

H.E. Ambassador and Deputy Permanent Representative Karen Pierce, United Kingdom of Great Britain and Northern Ireland:

"The United Kingdom drafted the resolution in such a way as to make it as acceptable as possible to the Sudan. We listened to the concerns that President Bashir expressed to the Council in Khartoum, and we sought to respond to them accordingly. There is, for example, no reference — although we would have liked one — to the International Criminal Court in the text. And while the resolution contains Chapter VII elements on the protection of civilians and on the United Nations force itself, it is not under Chapter VII in its entirety."

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(9) Security Council, Reports of the Secretary-General on the Sudan: Report of the Secretary-General on Darfur (S/2006/591 and S/2006/591/Add.1), Meeting Record, S/PV.5520, 11 September 2006

H.E. Ambassador and Permanent Representative Ellen Margrethe Løj, Denmark:

"While sanctions are intended to encourage and push for wise political decisions that will respect and implement Security Council decisions, it should never be forgotten that, ultimately, accountability is also an aspect of this crisis. By adopting resolution 1593 (2005) and referring the situation in Darfur to the International Criminal Court, the Council has already shown that it will not accept impunity for serious crimes against humanity. Again, we must show that we have learned our lessons from Rwanda and that those responsible for the continuation of this crisis will eventually have to face the consequences of their actions."

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