The Prosecutor v.

Jean-Paul Akayesu

Appeals Chamber clarified that Article 3 of the Statute does not require that all crimes against humanity
enumerated therein be committed with a discriminatory intent and that said Article restricts the
Tribunal’s jurisdiction to crimes committed “as part of a widespread or systematic attack against any
civilian population” on discriminatory grounds (para. 469).

Regarding the Prosecution’s fourth ground of appeal, the Chamber found that “incitement” under Article
6(1) of the Statute need not be “direct and public” (para. 483).

Further analysis

L.J. van den Herik, The Contribution of the Rwanda Tribunal to the Development of International Law
(Martinus Nijhoff Publishers 2005);

C.A. MacKinnon, ‘Defining Rape Internationally: A Comment on Akayesu’,44 Columbia Journal of

Transnational Law 940 (2005-2006;

S. Chenault, 'And since Akayesu? The Development of ICTR Jurisprudence on Gender Crimes: A
Comparison of Akayesu and Muhimana’,14 New England Journal of International and Comparative Law
221 (2008).

Instruments cited

Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in
the Field (GC I), 12 August 1949, 75 UNTS 35, entered into force 21 October 1950.

Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members
of Armed Forces at Sea (GC II), 12 August 1949, 75 UNTS 81, entered into force 21 October 1950.

Geneva Convention relative to the Treatment of Prisoners of War (GC III), 12 August 1949, 75 UNTS 135,
entered into force 21 October 1950.

Geneva Convention relative to the Protection of Civilian Persons in Time of War (GC IV), 12 August 1949,
75 UNTS 287, entered into force 21 October 1950.

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of
Victims of Non-International Armed Conflicts (AP II), 1125 UNTS 609, 8 June 1977, entered into force 7
December 1979.

Statute of the International Criminal Tribunal for Rwanda (ICTR Statute), UN Doc S/RES/955, UN Security
Council, 1994.

Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda (ICTR RPRE), UN Doc
ITR/3/Rev. 6, adopted on 29 June 1995, as amended on 8 June 1998.

THE PROSECUTOR VS GERMAIN KATANGA

Germain Katanga

Found guilty on 7 March 2014 of one count of crime against humanity and 4 counts of war crimes
committed on 24 February 2003 during the attack on the village of Bogoro (DRC). Sentenced on 23 May
2014 to a total of 12 years’ imprisonment. The judgment is final as parties have discontinued their
appeals. On 13 November 2015, the Appeals Chamber reviewed the sentence and decided to reduce it.
The date for the completion of the sentence is set to 18 January 2016. On 19 December 2015, Germain
Katanga was transferred to a prison facility in the Democratic Republic of the Congo (DRC) to serve his
sentence of imprisonment. Order on reparations to victims: 24 March 2017. Confirmed in appeals: 8
March 2018

Charges

On 7 March 2014, Trial Chamber II of the ICC ruling in the majority, with Judge Christine Van den
Wyngaert dissenting, rendered its judgment in the case The prosecutor v. Germain Katanga.Trial
Chamber II found German Katanga guilty, as an accessory, within the meaning of article 25(3)(d) of the
Rome Statute, of one count of crime against humanity (murder) and four counts of war crimes (murder,
attacking a civilian population, destruction of property and pillaging) committed on 24 February 2003
during the attack on the village of Bogoro, in the Ituri district of the DRC. The Chamber found that it had
been established beyond reasonable doubt that Germain Katanga had made a significant contribution to
the commission of the crimes by the Ngiti militia, which was acting with a common purpose, by assisting
its members to plan the operation against Bogoro. The Chamber found that Germain Katanga acted in
the knowledge of the criminal common plan devised by the militia to target the predominantly Hema
population of Bogoro. The crimes of murder, attacking civilians, destroying property and pillaging were
part of the common plan.The Chamber found that Mr Katanga was the intermediary of choice between
the weapons and ammunition suppliers and those who physically committed the crimes using those
munitions in Bogoro. He contributed to reinforcing the strike capability of the Ngiti militia who carried
out the crimes committed in Bogoro on 24 February 2003. He also contributed, by virtue of his position
in Aveba – the only place in the collectivité with an airport which could accommodate aircraft
transporting weapons – to equipping the militia and enabling it to operate in an organised and efficient
manner. His involvement allowed the militia to avail itself of logistical means which it did not possess
enabling it to secure military superiority over its adversary. However, the Chamber dismissed the mode
of liability, as principal perpetrator, applied to Germain Katanga, since it was not proven beyond
reasonable doubt that in respect of the collectivité he had the material ability to give orders or to ensure
their implementation, or that he had the authority to punish camp commanders.

RE-CHARACTERISATION OF THE MODE OF LIABILITY

The Chamber changed the characterisation of the mode of liability against Mr Katanga – who had initially
been charged as principal perpetrator – on the basis of article 25(3)(d) of the Rome Statute, which
defines being an accessory as contributing “[i]n any other way […] to the commission […] of […] a crime
by a group of persons acting with a common purpose”. Germain Katanga was found guilty, as an
accessory within the meaning of article 25(3)(d) of the Rome Statute, of the crimes of murder
constituting a crime against humanity and a war crime and the crimes of directing an attack against the
civilian population as such or against individual civilians not taking direct part in hostilities, destroying
the enemy’s property and pillaging constituting war crimes.

OTHER CHARGES

The Trial Chamber acquitted Germain Katanga of rape and sexual slavery as a crime againt humanity and
the war crimes of using children under the age of fifteen years to participate actively in hostilities, sexual
slavery, and rape. The Chamber found that there was evidence beyond reasonable doubt that the crimes
of rape and sexual slavery were committed. Regarding the crime of using child soldiers, it found that
there were children within the Ngiti militia and among the combatants who were in Bogoro on the day
of the attack. However, the Chamber concluded that the evidence presented in support of the accused’s
guilt did not satisfy it beyond reasonable doubt of the accused’s responsibility for these crimes.

SENTENCE

On 23 May 2014, Trial Chamber II, ruling in the majority with Judge Christine Van den Wyngaert
dissenting, sentenced Germain Katanga to a total of 12 years’ imprisonment. The time s’ent in detention
at the ICC – between 18 September 2007 and 23 May 2014 –will be deducted from his sentence.

APPEAL

On 25 June 2014, the Defence for Germain Katanga and the Office of the Prosecutor discontinued their
appeals against the judgment in the Katanga case. The judgment is now final.

REPARATIONS

On 24 March 2017, Trial Chamber II issued an Order awarding individual and collective reparations to the
victims of crimes committed by Germain Katanga. The judges awarded 297 victims with a symbolic
compensation of USD 250 per victim as well as collective reparations in the form of support for housing,
support for income-generating activities, education aid and psychological support. Because of Mr
Katanga’s indigence, the Trust Fund for Victims was invited to consider using its resources for the
reparations and to present an implementation plan by 27 June 2017.In May 2017, the Trust Fund’s Board
decided to provide $1 million for the reparations awarded to victims in the Katanga case covering the full
amount of the costs of the reparations awards ordered by the Trial Chamber. The Board also welcomed a
voluntary contribution of €200,000 by the Government of The Netherlands, which included earmarked
funding to cover the cost of individual awards. On 25 July 2017, the Trust Fund presented its draft
implementation plan to the Chamber.On 8 March 2018, the Appeals Chamber confirmed, for the most
part, the Reparations Order in the case.

Background on the trial

REFERRAL TO THE COURT

The Democratic Republic of the Congo ratified the Rome Statute of the International Criminal Court on
11 April 2002. On 3 March 2004, the Government of the DRC referred the situation (all events within the
jurisdiction of the Court) on its territory since the entry into force of the Rome Statute on 1 July 2002.
After preliminary analysis, the Prosecutor initiated an investigation on 21 June 2004. Investigations are
ongoing in relation to the situation in the DRC.

THE PROSECUTOR VS PAULINE NYIRAMASUHUKO ET. Al.

The Appeals Chamber of the International Criminal Tribunal for Rwanda, composed of Judge Fausto
Pocar, presiding, Judge Carmel Agius, Judge Liu Daqun, Judge Khalida Rachid Khan, and Judge Bakhtiyar
Tuzmukhamedov, today delivered its judgement on the appeals lodged by Pauline Nyiramasuhuko,
Arsène Shalom Ntahobali, Sylvain Nsabimana, Alphonse Nteziryayo, Joseph Kanyabashi, Élie
Ndayambaje, and the Prosecution. This last judgement of the Appeals Chamber brings an end to the
Tribunal’s judicial activity.

Nyiramasuhuko served as Minister of Family and Women’s Development under the interim government
in 1994. Ntahobali, Nyiramasuhuko’s son, was a student and part-time manager of Hotel Ihuliro in
Butare-ville Sector in April 1994. Nsabimana was appointed prefect of Butare on 19 April 1994 and
served in that position until 17 June 1994 when he was replaced by Nteziryayo. Kanyabashi was the
bourgmestre of Ngoma Commune during the events at issue. Ndayambaje served as bourgmestre of
Muganza Commune from 18 June 1994 until he left Rwanda on 7 July 1994.

Kanyabashi and Ndayambaje were arrested in Belgium on 28 June 1995 and transferred to the custody of
the Tribunal on 8 November 1996. Nyiramasuhuko and Nsabimana were arrested in Kenya on 18 July
1997 and Ntahobali was arrested there on 24 July 1997. Nyiramasuhuko, Nsabimana, and Ntahobali
were each transferred to the custody of the Tribunal on the day of his or her arrest. Nteziryayo was
arrested in Burkina Faso on 26 March 1998 and transferred to the custody of the Tribunal on 21 May
1998.

On 24 June 2011, Trial Chamber II convicted Nyiramasuhuko, Ntahobali, Nsabimana, Kanyabashi, and
Ndayambaje of genocide, crimes against humanity, and one or more serious violations of Article 3
common to the Geneva Conventions and of Additional Protocol II. The Trial Chamber also convicted
Nyiramasuhuko of conspiracy to commit genocide and found Nteziryayo, Kanyabashi, and Ndayambaje
guilty of direct and public incitement to commit genocide. The Trial Chamber sentenced Nyiramasuhuko,
Ntahobali, and Ndayambaje to life imprisonment and imposed sentences of 25, 30, and 35 years of
imprisonment on Nsabimana, Nteziryayo, and Kanyabashi, respectively.

When considering overlapping challenges related to the fairness of the proceedings, the Appeals
Chamber determined that the Trial Chamber erred in finding that Nyiramasuhuko’s, Ntahobali’s,
Nsabimana’s, Nteziryayo’s, Kanyabashi’s, and Ndayambaje’s right to be tried without undue delay had
not been violated. It concluded that “delays in the start of the trial due to the Prosecution’s conduct and
delays resulting from the Trial Chamber judges’ simultaneous assignment to multiple cases cannot be
reasonably explained or justified.” It further found that the delays caused prejudice to each of the six
appellants. The Appeals Chamber further determined that the Trial Chamber applied an incorrect legal
standard when convicting Nyiramasuhuko, Ntahobali, Nsabimana, Kanyabashi, and Ndayambaje of
persecution as a crime against humanity on the basis that they acted with discriminatory intent on
ethnic grounds. The Appeals Chamber, by a majority, concluded that none of the Trial Chamber’s findings
supports the conclusion that they committed this crime on one of the three discriminatory grounds
enumerated in Article 3(h) of the Statute, namely on political, racial, or religious grounds, and reversed
their convictions on this basis

With respect to the individual appeals, the Appeals Chamber affirmed Nyiramasuhuko’s conviction for
conspiracy to commit genocide on the basis that she entered into an agreement with members of the
Interim Government on or after 9 April 1994 to kill Tutsis within Butare Prefecture. It also upheld findings
of her criminal responsibility in relation to attacks at the Butare Prefecture Office in May and June 1994,
affirming her convictions on the basis that she ordered the killing of Tutsis who had sought refuge at the
prefectoral office and as a superior of Interahamwe who perpetrated rapes there.
The Appeals Chamber, unanimously and, in one instance, by a majority, affirmed Ntahobali’s criminal
responsibility for: (i) killing a Tutsi girl he had first raped at the Hotel Ihuliro roadblock in late April 1994;
(ii) ordering the killing of a man named Léopold Ruvurajabo at the Hotel Ihuliro roadblock on 21 April
1994, the killing of Tutsis at the Institut de recherche scientifique et technique on 21 April 1994, and the
killing of Tutsis who had sought refuge at the Butare Prefecture Office during an attack there in mid-May
1994; and (iii) aiding and abetting the killings of Tutsis abducted from the École évangéliste du Rwanda
between mid-May and early June 1994. The Appeals Chamber further affirmed Ntahobali’s criminal
responsibility for: (i) raping a Tutsi girl near the Hotel Ihuliro roadblock in late April 1994 as well as
Witness TA during two attacks in May 1994 at the prefectoral office; (ii) ordering the rape of Witness TA
at the prefectoral office during an attack in the last of half of May 1994; and (iii) aiding and abetting the
rapes of Witness TA at the prefectoral office in June 1994.

However, the Appeals Chamber, having found errors in the Trial Chamber’s reasoning, reversed
Ntahobali’s criminal responsibility for: (i) killing numerous Tutsis, other than a Tutsi girl, at the Hotel
Ihuliro roadblock in late April 1994; (ii) aiding and abetting the killing of Rwamukwaya and his family
around 29 or 30 April 1994; (iii) raping Tutsi women, other than Witness TA, at the Butare Prefecture
Office; and (iv) ordering the rapes of six Tutsi women, other than Witness TA, at the Butare Prefecture
Office during an attack in the last half of May 1994.

The Appeals Chamber affirmed Nsabimana’s convictions on the basis of aiding and abetting by omission
the killing of Tutsis who had sought refuge at the Butare Prefecture Office by failing to discharge his duty
to provide assistance to people in danger and to protect civilians against acts of violence. It also affirmed
Nteziryayo’s convictions for direct and public incitement to commit genocide on the basis that he made
speeches that constituted direct appeals to the population to kill Tutsis at public meetings held in
Muyaga and Kibayi Communes in mid to late June 1994 and at the 22 June 1994 swearing-in ceremony
of Ndayambaje as the new bourgmestre of Muganza Commune.

The Appeals Chamber, by a majority, affirmed Kanyabashi’s convictions for committing direct and public
incitement to commit genocide by making megaphone announcements on two occasions in late May
and mid-June 1994 calling on the population to kill Tutsis. However, the Appeals Chamber reversed
Kanyabashi’s convictions based on his superior responsibility for the killings of Tutsis perpetrated by
Ngoma commune policemen at Kabakobwa Hill on 22 April 1994, finding that he lacked notice of the
material facts upon which the Trial Chamber convicted him. It further reversed Kanyabashi’s convictions
based on his superior responsibility for the killings of Tutsis at Matyazo Clinic in late April 1994
perpetrated by soldiers, concluding that “no reasonable trier of fact could have found that a single order
from a civilian authority which was followed by soldiers demonstrated a pre-existing
superior-subordinate relationship, which, in turn, imposed a duty on that civilian authority to prevent
the soldiers from committing crimes or to punish them for the crimes committed.”

The Appeals Chamber affirmed Ndayambaje’s conviction for committing direct and public incitement to
commit genocide by making a speech containing inciting statements to commit genocide at his swearing-
in ceremony as the new bourgmestre of Muganza Commune on 22 June 1994. It also affirmed his
convictions for aiding and abetting the killings of Tutsis at Mugombwa Church on 20 and 21 April 1994
and at Kabuye Hill from 23 to 24 April 1994. It also upheld his convictions on the basis of instigating the
killings of Tutsi women and girls, other than one named Nambaje, abducted from Mugombwa Sector
based on his utterances at the Virgin Mary Statute after his swearing-in ceremony on 22 June 1994.
However, the Appeals Chamber reversed Ndayambaje’s conviction for committing direct and public
incitement to commit genocide by directly inciting a crowd outside Mugombwa Church to kill the Tutsis
who were taking refuge in the church on 20 and 21 April 1994. The Appeals Chamber found that
Ndayambaje’s indictment was defective in this respect and concluded that the Prosecution had not
proved that Ndayambaje’s defence was not materially impaired by the defect. The Appeals Chamber also
reversed his convictions for aiding and abetting the killings perpetrated at Kabuye Hill on 22 April 1994
and instigating the killing of a Tutsi girl named Nambaje, finding errors in the Trial Chamber’s assessment
of the relevant evidence.

The Appeals Chamber dismissed the Prosecution’s appeal alleging that the Trial Chamber erred in
acquitting Kanyabashi of genocide and direct and public incitement to commit genocide in relation to the
speech he gave at the 19 April 1994 swearing-in ceremony of Nsabimana as prefect of Butare.

Having considered the impact of its findings on appeal, in particular that the six appellants’ right to be
tried without undue delay had been violated, the Appeals Chamber reduced the life sentences imposed
by the Trial Chamber on Nyiramasuhuko, Ntahobali, and Ndayambaje, to 47 years of imprisonment for
each of them. With respect to Nsabimana, Nteziryayo, and Kanyabashi, the Appeals Chamber further
found certain errors in the Trial Chamber’s determination of their respective sentences, and considering
the impact of all its findings, reduced Nsabimana’s sentence to 18 years of imprisonment, Nteziryayo’s
sentence to 25 years of imprisonment, and Kanyabashi’s sentence to 20 years of imprisonment.
Considering time already served, the Appeals Chamber ordered Nsabimana’s and Kanyabashi’s
immediate release.

Judge Pocar, Judge Agius, Judge Liu, and Judge Khan appended partly dissenting opinions to the appeal
judgement. Judge Agius appended a separate opinion and Judge Khan appended a declaration. This, the
final judgement issued by the Tribunal, brings the total number of appeal judgements issued to 45,
disposing of appeals concerning 61 persons.

THE PROSECUTOR VS THOMAS LUBANGA DYILO

Thomas Lubanga Dyilo

Found guilty, on 14 March 2012, of the war crimes of enlisting and conscripting of children under the age
of 15 years and using them to participate actively in hostilities. Sentenced, on 10 July 2012, to a total of
14 years of imprisonment. Verdict and sentence confirmed by Appeals Chamber on 1 December 2014.
On 19 December 2015, Thomas Lubanga Dyilo was transferred to a prison facility in the DRC to serve his
sentence of imprisonment. On 7 August 2012, Trial Chamber I issued a decision on the principles for
reparations to victims in the case. On 3 March 2015, the Appeals Chamber amended the Trial Chamber’s
order for reparations. Plan for symbolic collective reparations approved on 21 October 2016. On 15
December 2017, Trial Chamber II set the amount of Mr Lubanga’s liability for collective reparations at
USD 10,000,000. On 14 December 2020, Chamber approved implementation of collective service-based
reparations to victims.

On 14 March 2012, Mr Lubanga Dyilo was convicted of committing, as co-perpetrator, war crimes
consisting of:
 Enlisting and conscripting of children under the age of 15 years into the Force patriotique pour la
libération du Congo [Patriotic Force for the Liberation of Congo] (FPLC) and using them to participate
actively in hostilities in the context of an armed conflict not of an international character from 1
September 2002 to 13 August 2003 (punishable under article 8(2)€(vii) of the Rome Statute).The verdict
was rendered by Trial Chamber I, composed of Judge Adrian Fulford (United Kingdom), as Presiding
Judge, Judge Elizabe th Odio Benito (Costa Rica) and Judge René Blattmann (Bolivia). Although the first
two judges have written separate and dissenting opinions on some issues, the verdict was unanimous.On
10 July 2012, Trial Chamber I sentenced Thomas Lubanga Dyilo to a total period of 14 years of
imprisonment. The time he spent in the ICC’s custody will be deducted from this total sentence. The
verdict and the sentence were confirmed by the Appeals Chamber on 1 December 2014.

THE PROSECUTOR VS KUNARAC KOVAK AND VOKOVIC

Dragoljub Kunarac, Radomir Kovač, and Zoran Vuković were brought before the ICTY for their roles in the
commission of crimes against the Bosnian Muslim civilians between April 1992 and February 1993.
During this time, an armed conflict existed between the Bosnian Serbs and the Bosnian Muslims, and the
Bosnian Serb Army and paramilitary groups detained Bosnian Muslim women and subjected them to
repeated rapes, torture and other mistreatments.

Trial Chamber II found that the acts of the Bosnian Serbs amounted to war crimes and crimes against
humanity. It found the three accused responsible for these crimes.

Dragoljub Kunarac was found guilty of crimes against humanity (torture, rape, enslavement), and war
crimes (torture and rape) and, subsequently, sentenced to 28 years of imprisonment.

Radomir Kovač was also found guilty of the war crimes of rape and outrages upon personal dignity, as
well as the crimes against humanity of enslavement and rape. He was sentenced to 20 years of
imprisonment.

Zoran Vuković was found guilty of torture and rape as both war crimes and crimes against humanity. Trial
Chamber II sentenced him to 12 years of imprisonment.

Court’s holding and analysis

Trial Chamber II was satisfied that “the armed conflict has been established beyond reasonable doubt
with respect to all three municipalities” (paras. 567 et seq.).

With respect to crimes against humanity, Trial Chamber II found that “the crimes committed by all three
accused were part of the attack against the Muslim civilian population and that all three accused had
mens rea required under Article 5 of the Statute” (para. 592). Furthermore, “judging by [Kunarac, Kovač
and Vuković’s] individual conduct as charged and proved on the evidence before the Trial Chamber, they
were aware that there was an attack on the Muslim civilian population going on, and they willingly took
an active part in it” (para. 592).

Trial Chamber II found Kunarac guilty of crimes against humanity (torture, rape, enslavement) and war
crimes (torture and rape) (paras. 593 et seq.).

Kovač was also found guilty of the war crimes of rape and outrages upon personal dignity, as well as the
crimes against humanity of enslavement and rape (paras. 746 et seq.).
Vuković was found guilty of torture and rape as both war crimes and crimes against humanity (paras. 783
et seq.).

Kunarac, Kovač and Vuković were sentenced to 28, 20 and 12 years of imprisonment.

PROSECUTOR v. MLADEN NALETIL, VINKO MARTINOVI

Mladen Naletilić, the founder and commander of the Bosnian Croat Convicts’ Battalion based around
Mostar, and Vinko Martinović, the Commander of a unit of the Convicts’ Battalion and subordinate to
Mladen Naletilić, stood trial for allegedly having planned, instigated, ordered or committed, or aided and
abetted, the planning, preparation, or execution of a crime against humanity through the widespread or
systematic persecutions of Bosnian Muslim civilians throughout the territory claimed to belong to the
HZ-HB and HR-HB through means including: unlawful confinement, detention, and forcible transfer of
Bosnian Muslims; the use of torture and inhumane acts against Bosnian Muslims; murder, willful killing,
and use of Bosnian Muslims as forced labor and human shields; destroying and wantonly devastating
Bosnian Muslims dwellings and buildings; and plundering public and private property of Bosnian
Muslims. The prosecution accused them under theories of individual and superior criminal responsibility
with crimes against humanity for persecution, inhumane acts, and murder; grave breaches of the
Geneva Conventions for inhuman treatment, willful killing, willfully causing great suffering or serious
injury to body or health, and unlawful transfer of a civilian; and, violations of the laws or customs of war
for cruel treatment, unlawful labor, murder, wanton destruction not justified by military necessity,
plunder of public or private property; the prosecution additionally charged Naletilić with torture as a
crime against humanity and grave breach of the Geneva Convention, grave breach of the Geneva
conventions for extensive destruction of property, and violations of the laws or customs of war for
wanton destruction not justified by military necessity and seizure, destruction or willful damage done to
institutions dedicated to religion.

In 2003, the Trial Chamber convicted both Naletilić and Martinović on theories of individual and superior
criminal liability of crimes against humanity for persecution, grave breaches of the Geneva Conventions
for willfully causing great suffering or serious injury to body or health and unlawful transfer of a civilian,
and for violations of laws or customs of war for unlawful labor and plunder of private or public property;
the Trial Chamber additionally convicted Naletilić of torture as both a crime against humanity and a
grave breach of the Geneva Conventions and wanton destruction not justified by military necessity as a
violation of the laws or customs of war; the Trial Chamber also convicted Martinović of crimes against
humanity for inhumane acts and murder and a grave breach for inhuman treatment and willful killing.

In 2006, the Appeals Chamber dismissed the majority of Naletilić and Martinović’s appeals, but found
that the Trial Chamber erred with regard to some of the convictions, but found that the sentences
imposed by the Trial Chamber were still within the range a reasonable court may have ordered. The Trial
Chamber sentenced Naletilić to 20 years’ imprisonment and Martinović to 18 years’ imprisonment,
which were upheld by the Appeals Chamber.

PROSECUTOR VS BOSCO NTAGANDA

Bosco Ntaganda

Accused of 13 counts of war crimes and 5 crimes against humanity committed in Ituri (DRC). Trial opened
on 2 September 2015 and closing statements heard from 28 to 30 August 2018. Found guilty on 8 July
2019. Sentenced to 30 years imprisonment on 7 November 2019. Verdict and sentence confirmed in
appeals on 30 March 2021. In ICC custody.

Charges

Mr. Ntaganda was found guilty of crimes against humanity (murder and attempted murder, rape, sexual
slavery, persecution, forcibl e transfer and deportation) and war crimes (murder and attempted murder,
intentionally directing attacks against civilians, rape, sexual slavery, ordering the displacement of the
civilian population, conscripting and enlisting children under the age of 15 years into an armed group
and using them to participate actively in hostilities, intentionally directing attacks against protected
objects, and destroying the adversary’s property).While the evidence did not sustain all incidents
indicated by the Prosecutor, it did demonstrate that in relation to each of the 18 counts at least part of
the charges were proven beyond any reasonable doubt.The Chamber has found that Mr Ntaganda was
liable as a direct perpetrator for parts of the charges of three of the crimes, namely murder as a crime
against humanity and a war crime and persecution as a crime against humanity, and was an indirect
perpetrator for the other parts of these crimes. He was convicted as an indirect perpetrator for the
remaining crimes. On 30 March 2021, the ICC Appeals Chamber confirmed the conviction and the
sentence.

Key judicial developments

REFERRAL AND OPENING OF THE INVESTIGATION

The DRC ratified the Rome Statute, the founding instrument of the International Criminal Court, on 11
April 2002.

On 3 March 2004, the Government of the DRC referred to the Court the situation (the events falling
under the Court’s jurisdiction) in its territory since the entry into force of the Rome Statute on 1 July
2002. After a preliminary analysis, the Prosecutor initiated an investigation on 21 June 2004.

CONFIRMATION OF CHARGES

The confirmation of charges hearing in the case was held on 10-14 February 2014. A total amount of
approximately 69,000 pages of evidence was disclosed between the parties and submitted to the
Chamber for its determination.Based on the evidence submitted to its consideration, the Chamber
confirmed the charges of war crimes and crimes against humanity against Bosco Ntaganda on 9 June
2014, and committed him for trial before a Trial Chamber.

JUDGMENT

On 8 July 2019, Trial Chamber VI found Mr Bosco Ntaganda guilty, beyond reasonable doubt, of 18
counts of war crimes and crimes against humanity, committed in Ituri, DRC, in 2002-2003. Trial Chamber
VI found that the Union des Patriotes Congolais [Union of Congolese Patriots] (UPC) and its military wing,
the Forces Patriotiques pour la Libération du Congo [Patriotic Force for the Liberation of Congo] (FPLC),
were at all times involved in at least one non-international armed conflict with an opposing party, in
Ituri, district of the DRC from on or about 6 August 2002 to on or about 31 December 2003. The conduct
of the UPC/FPLC against the civilian population was the intended outcome of a preconceived strategy to
target the civilian population, and the crimes committed took place pursuant to a policy of the
UPC/FPLC. Mr Ntaganda fulfilled a very important military function in the UPC/FPLC.In this context, the
Chamber found Mr Ntaganda guilty of crimes against humanity (murder and attempted murder, rape,
sexual slavery, persecution, forcible transfer and deportation) and war crimes (murder and attempted
murder, intentionally directing attacks against civilians, rape, sexual slavery, ordering the displacement of
the civilian population, conscripting and enlisting children under the age of 15 years into an armed group
and using them to participate actively in hostilities, intentionally directing attacks against protected
objects, and destroying the adversary’s property). While the evidence did not sustain all incidents
indicated by the Prosecutor, it did demonstrate that in relation to each of the 18 counts at least part of
the charges were proven beyond any reasonable doubt.

The Chamber has found that Mr Ntaganda was liable as a direct perpetrator for parts of the charges of
three of the crimes, namely murder as a crime against humanity and a war crime and persecution as a
crime against humanity, and was an indirect perpetrator for the other parts of these crimes. He was
convicted as an indirect perpetrator for the remaining crimes.

Sentence

On 7 November 2019, Trial Chamber VI sentenced Bosco Ntaganda to a total of 30 years of

imprisonment. The time Mr Ntaganda has spent in detention at the ICC – from 22 March 2013 to 7
November 2019 – will be deducted from this sentence.

Prosecutor v. Callixte Mbarushimana

Callixte Mbarushimana

On 16 December 2011, Pre-Trial Chamber I declined to confirm charges of crimes against humanity and
war crimes against Callixte Mbarushimana. Released from ICC custody on 23 December 2011.

Charges

The Prosecution alleges that Callixte Mbarushimana is criminally responsible under article 25(3)(d) of the
Rome Statute for: Five counts of crimes against humanity: murder, torture, rape, inhumane acts and
persecution; Eight counts of war crimes: attacks against the civilian population, murder, mutilation,
torture, rape, inhuman treatment, destruction of property and pillaging.Status of Proceedings: Pre-Trial
Chamber declined to confirm the charges against Callixte Mbarushimana and ordered his release. The
Prosecution can request anew the confirmation of charges by presenting additional evidence.

Alleged crimes (non-exhaustive list)

Pre-Trial Chamber I is of the opinion that there are substantial grounds to believe that: From at least 20
January 2009 until at least 31 December 2009, an armed conflict not of an international character took
place in the North and South Kivus, in the Democratic Republic of Congo (DRC), between the forces of
the Government of the DRC, supported at times by Rwandese forces (RDF) or the forces of the United
Nations Mission in the Democratic Republic of Congo, on the one side, and at least one organised armed
group, the Forces Démocratiques pour la Libération du Rwanda – Forces Combattantes Abacunguzi
(FDLR), on the other. FDLR troops committed several war crimes in different locations and at different
times, particularly in Busurungi and surrounding villages in March 2009 (murder) as well as on or about 9
to 12 May 2009 (attacking civilians, murder, mutilation,rape, cruel treatment, destruction of property
and pillaging); in Manje on or about 20 July 2009 (attacking civilians, murder, cruel treatment and
destruction of property); in Malembe on or about 11 to 16 August 2009 (attacking civilians and
destruction of property), and in Mianga on or about 12 April 2009 (attacking civilians, murder and
destruction of property).Although the Chamber found substantial grounds to believe that acts
amounting to war crimes were perpetrated in five out of the twenty-five occasions identified by the
Prosecutor, the Majority found that the evidence submitted was insufficient to be convinced of the
existence of substantial grounds to believe that such acts were part of a course of conduct amounting to
“an attack directed against the civilian population” pursuant to or in furtherance of an organisational
policy to commit such attack, within the meaning of article 7 of the Rome Statute which defines crimes
against humanity. Accordingly, the Majority found that there were not substantial grounds to believe
that crimes against humanity were committed by the FDLR troops.The Majority of the Chamber, with the
Presiding Judge dissenting, further found that Callixte Mbarushimana did not provide any contribution to
the commission of the alleged crimes, even less a “significant” one.

Prosecutor v. Duško Tadić

Summary

After the takeover of Prijedor (Bosnia and Herzegovina) and the attack launched against the town of
Kozarac (Bosnia and Herzegovina) in 1992, the non-Serb civilians were detained in several prison
facilities, where they were beaten, sexually assaulted, tortured, killed and otherwise mistreated. Duško
Tadić was the President of the Local Board of the Serb Democratic Party in Kozarac (Bosnia and
Herzegovina). Trial Chamber II found Duško Tadić guilty of crimes against humanity and war crimes and,
in a separate sentencing judgment, sentenced him to 20 years of imprisonment.

The Appeals Chamber denied Duško Tadić’s appeal on all grounds. It did allow, however, the
Prosecution’s appeal, reversing the judgment of Trial Chamber II and entering convictions for war crimes
and crimes against humanity.

The Appeals Chamber also held that an act carried out for the purely personal motives of the
perpetrator can constitute a crime against humanity. Furthermore, Trial Chamber II erred in finding that
all crimes against humanity require discriminatory intent.

The Issue of sentencing was referred to a Trial Chamber.

Procedural history

The amended indictment was filed on 14 December 1995. The trial commenced on 7 May 1996, and Trial
Chamber II rendered its Opinion and Judgment on 7 May 1997, finding Tadić guilty of violations of the
laws or customs of war and crimes against humanity.

Thereafter, Trial Chamber II rendered its Sentencing Judgment on 14 July 1997, sentencing Tadić to 20
years of imprisonment.

The parties appealed against the Opinion and Judgment of 7 May 1997, and Tadić further filed an appeal
against the Sentencing Judgment of 14 July 1997.

Court’s holding and analysis

The Appeals Chamber denied Tadić’s appeal on all grounds.

In its first ground of appeal, the Prosecution argued that Trial Chamber II “erred by relying exclusively
upon the “effective control” test derived from the Case concerning Military and Paramilitary Activities in
and against Nicaragua (Nicaragua v. United States) in order to determine the applicability of the grave
breach provisions of the relevant Geneva Convention” (para. 73). The Appeals Chamber found that “[t]he
“effective control” test propounded by the International Court of Justice as an exclusive and all-
embracing test is at variance with international judicial and State practice: such practice has envisaged
State responsibility in circumstances where a lower degree of control than that demanded by the
Nicaragua test was exercised” (para. 124) introducing a different test of overall control with respect to
military or paramilitary groups. Exercising overall control means “not only [the] equipping and financing
[of] the group, but also [the] coordinating or helping in the general planning of its military activity.”
(para. 131) The Appeals Chamber concluded that “the armed forces of the Republika Srpska were to be
regarded as acting under the overall control of and on behalf of the [Federal Republic of Yugoslavia].
Hence, even after 19 May 1992 the armed conflict in Bosnia and Herzegovina between the Bosnian Serbs
and the central authorities of Bosnia and Herzegovina must be classified as an international armed
conflict” (para. 162). The Appeals Chamber reversed Tadić’s acquittal and found him guilty of grave
breaches of the Geneva Conventions.

The Appeals Chamber also held that “[t]he Trial Chamber erred in holding that it could not, on the
evidence before it, be satisfied beyond reasonable doubt that the Appellant had any part in the killing of
the five men” (para. 233), finding Tadić guilty of additional war crimes and crimes against humanity
(paras. 235-237).

The Appeals Chamber further found that “the requirement that an act must not have been carried out
for the purely personal motives of the perpetrator does not form part of the prerequisites necessary for
conduct to fall within the definition of a crime against humanity under Article 5 of the Tribunal’s Statute”
(para. 272).

The Appeals Chamber also held that “the Trial Chamber erred in finding that all crimes against humanity
require a discriminatory intent.” (para. 305)

The issue of sentencing was referred to a Trial Chamber (p. 144).

PROSECUTOR VS THOMAS LUBANGA DYILO

Thomas Lubanga Dyilo

Found guilty, on 14 March 2012, of the war crimes of enlisting and conscripting of children under the age
of 15 years and using them to participate actively in hostilities. Sentenced, on 10 July 2012, to a total of
14 years of imprisonment. Verdict and sentence confirmed by Appeals Chamber on 1 December 2014.
On 19 December 2015, Thomas Lubanga Dyilo was transferred to a prison facility in the DRC to serve his
sentence of imprisonment. On 7 August 2012, Trial Chamber I issued a decision on the principles for
reparations to victims in the case. On 3 March 2015, the Appeals Chamber amended the Trial Chamber’s
order for reparations. Plan for symbolic collective reparations approved on 21 October 2016. On 15
December 2017, Trial Chamber II set the amount of Mr Lubanga’s liability for collective reparations at
USD 10,000,000. On 14 December 2020, Chamber approved implementation of collective service-based
reparations to victims.

Crimes (non-exhaustive list)

Trial Chamber I concluded that: - The Union des Patriotes Congolais (“UPC”) was created on 15
September 2000; Thomas Lubanga was one of the UPC’s founding members and its President from the
outset. The UPC and its military wing, the Force Patriotique pour la Libération du Congo (“FPLC”), took
power in Ituri in September 2002. The UPC/FPLC, as an organised armed group, was involved in an
internal armed conflict against the Armée Populaire Congolaise (“APC”) and other Lendu militias,
including the Force de Résistance Patriotique en Ituri (“FRPI”), between September 2002 and 13 August
2003.- Between 1 September 2002 and 13 August 2003, the armed wing of the UPC/FPLC was
responsible for the widespread recruitment of young people, including children under the age of 15, on
an enforced as well as a “voluntary” basis. Multiple witnesses testified credibly and reliably that children
under 15 were “voluntarily” or forcibly recruited into the UPC/FPLC and sent to either the headquarters
of the UPC/FPLC in Bunia or its military training camps, including at Rwampara, Mandro, and
Mongbwalu. Video evidence clearly shows recruits under the age of 15 in the Rwampara camp. The
evidence demonstrates that children in the military camps endured harsh training regimes and were
subjected to a variety of severe punishments. – Children were deployed as soldiers in Bunia, Tchomia,
Kasenyi, Bogoro and elsewhere, and they took part in fighting, including at Kobu, Songolo and
Mongbwalu. It has been established that the UPC/FPLC used children under the age of 15 as military
guards. The evidence reveals that a special “Kadogo Unit” was formed, which was comprised principally
of children under the age of 15.

On 10 July 2012, Trial Chamber I sentenced Thomas Lubanga Dyilo to a total period of 14 years of
imprisonment. The time he spent in the ICC’s custody will be deducted from this total sentence. The
verdict and the sentence were confirmed by the Appeals Chamber on 1 December 2014.

PROSECUTOR VS MILAN MARTIC

Milan Martić, who held positions including President, Minister of Defence, and Minister of Internal
Affairs in the SAO Krajina and RSK, stood trial for allegedly, having participated in the creation, financing,
supply, training and direction of Martić’s Police; commanded, controlled, directed and otherwise
exercised effective control over these special police forces; participated in the creation, financing, supply,
training and direction of special police forces of the Serbian State Security Service; participated in
military actions and subsequent crimes of these police and military forces throughout the targeted
territories; participated in the planning, preparation and execution of the take-over of territories in the
Croatian SAOs and parts of BiH; planned, instigated, ordered, committed, or otherwise aided and
abetted the planning, preparation, or execution of the persecutions, exterminations, murders,
imprisonment, torture, inhumane acts, and cruel treatment of the Croat, Muslim and other non-Serb
civilian populations in Serb Krajina and Zagreb; openly espoused and encouraged the creation of a
homogenous Serbian State encompassing the territories SAO Krajina and actively participated with his
troops to achieve this end; and planned and ordered the shelling attacks on Zagreb in May 1995.

The prosecution accused Martić of individual and superior criminal responsibility and participation in a
joint criminal enterprise for crimes against humanity for persecutions, extermination, murder,
imprisonment, torture, inhumane acts including forcible transfers, and deportations; and for violations of
the laws or customs of war for murder, torture, cruel treatment, wanton destruction of villages or
devastation not justified by military necessity, destruction or willful damage to institutions dedicated to
education or religion, plunder of private or public property, and attacks on civilians.
In 2007, the Trial Chamber acquitted Martić of extermination but found Martić individually criminally
responsible for all other charges, and found that the crimes perpetuated by Martić against the non-Serb
population were part of a joint criminal enterprise with a common purpose to forcibly remove the
majority of the non-Serb population from parts of Croatia and BiH in order to create a new Serb-
dominated State.

In 2008, the Appeals Chamber dismissed nine of Martić’s appeals and decided one; the Appeals
Chamber found that the Trial Chamber erred when it found a link between Martić and the principal
perpetrators with regards to crimes committed in three municipalities, consisting of Cerovljani, Vuković,
and Poljanak; the Appeals Chamber reversed Martić’s convictions as they related to those crimes, but
upheld the convictions with regards to other localities. The Trial Chamber sentenced Martić to 35 years’
imprisonment, which was upheld by the Appeals Chamber.

PROSECUTOR VS STANISLAV GALIC

Stanislav Galić, the Commander and Major General of the Sarajevo Romanija Corps, stood trial for
allegedly having planned, instigated, ordered, committed, or otherwise aided and abetted in the
planning, preparation, or execution of the campaign of shelling and sniping against the civilian
population of Sarajevo; his case marks the first life sentence to be carried out by the ICTY. The
prosecution accused Galić of individual and superior criminal responsibility for crimes against humanity
for murder and inhumane acts and violations of the laws and customs of war for unlawfully inflicting
terror upon civilians and attack on civilians.

In 2003, the Trial Chamber convicted Galić for crimes against humanity for murder and inhumane acts
and violations of the laws or customs of war for acts of violence with the primary purpose to spread
terror among civilians, but acquitted him of violations of the laws or customs of wars for attacks on
civilians.

In 2006, the Appeals Chamber dismissed all of Galić’s appeals and decided the prosecution’s appeal; the
Appeals Chamber found that the Trial Chamber erred when it determined a sentence of only 20 years,
which the Appeals Chamber found to be “unreasonable and plainly unjust” as it underestimated the
gravity of Galić’s conduct. The Trial Chamber sentenced Galić to 20 years’ imprisonment; the Appeals
Chamber quashed the previous sentence and sentenced Galić to life imprisonment.

PROSECUTOR v. TIHOMIR BLA[KI]

Summary

Tihomir Blaškić was brought before the ICTY for his role as Commander of the armed forces of the
Croatian Defence Council during the events that took place in the area of Lašva Valley (Bosnia and
Herzegovina) between May 1992 and January 1994. During this time, the Croatian forces attacked
several municipalities in the area of Lašva Valley (Bosnia and Herzegovina). As a result of the attack,
hundreds of Bosnian Muslim civilians were killed, arrested, detained, mistreated or forced to leave their
homes.

Trial Chamber I found that Tihomir Blaškić ordered a significant number of attacks and did not take
measures to prevent or punish the crimes that were committed by his subordinates. Therefore, Trial
Chamber I found him responsible for the crimes against humanity and war crimes occurred during those
attacks.

Furthermore, Blaškić was found guilty of inhuman and cruel treatment (as crimes against humanity) for
the violence at the detention centres, for the forcing of detainees to dig trenches, for the taking of
hostages, and for the use of human shields.

Blaškić was sentenced to 45 years of imprisonment.

Legally relevant facts

The case concerned the crimes committed in the Lašva Valley (Bosnia and Herzegovina) between May
1992 and January 1994 in the ambit of the conflict between the Croatian Defence Council (HVO) and the
forces of the Bosnian Muslim Army. On 16 April 1993, pursuant to an order by Blaškić, the Croatian
forces attacked the municipalities of Vitez and Busovača (central Bosnia and Herzegovina). As a result of
the attack, hundreds of Bosnian Muslim civilians were killed, arrested, mistreated or forced to leave their
homes. Those who were detained were forced to dig trenches, frequently being used also as human
shields. Furthermore, the Muslim houses were burned, their properties plundered, and their mosques
destroyed. Over twenty villages were attacked under the same scenario and coordination (para. 341 et
seq.).

From 27 June 1992, Tihomir Blaškić was the Commander of the HVO Armed Forces Headquarters in
central Bosnia and Herzegovina (para. 9).

PROSECUTOR v. RADISLAV KRSTIC

Radislav Krstić, Commander of the Drina Corps of the VRS, stood trial for allegedly having planned,
instigated, ordered or otherwise aided and abetted in the planning, preparation or execution of the
opportunistic killings of captured Bosnian Muslim men from the Srebrenica “safe area” by VRS military
personnel; Krstić was the first person convicted of genocide at the ICTY, though that conviction would
later be reduced to aiding and abetting genocide, and it was during this case that it was first determined
that genocide occurred at Srebrenica and the first time that rape was linked with ethnic cleansing. The
prosecution accused him of genocide, conspiracy to commit genocide, crimes against humanity for
extermination, murder, persecution, deportation, and inhumane acts of forcible transfer, and violations
of the laws or customs of war for murder.

In 2001, the Trial Chamber convicted Krstić of genocide; crimes against humanity for murder,
persecution, deportation, and inhumane acts of forcible transfer; and violations of the laws or customs
of war for murder.

In 2004, the Appeals Chamber decided Krstić’s appeals; the Appeals Chamber found that a reasonable
trier of fact could not find that the evidence supported the assertion that the soldiers of the VRS
Bratunac Brigade were dispatched by Krstić for the purpose of assisting in the executions of Bosnian
Muslims at Branjevo Farm and the Pilica Dom, and thus it could not be determined that Krstić had direct
involvement in assisting executions; however, the Appeals Chamber found that Krstić was aware of the
executions, and that he permitted the Main Staff to use personnel and resources under his command to
facilitate the executions, which the Appeals Chamber found established Krstić’s criminal responsibility as
an aider and abettor to murder, extermination, and persecutions, rather than as a principal co-
perpetrator as found by the Trial Chamber; the Appeals Chamber found that Krstić was guilty of aiding
and abetting genocide, violations of the laws or customs of war for murder and aiding and abetting
murder, and crimes against humanity for extermination and persecution. The Trial Chamber sentenced
Krstić to 46 years’ imprisonment; the Appeals Chamber reduced Krstić’s sentence to 35 years.

PROSECUTOR v. MIROSLAV KVOCKA ET AL

Miroslav Kvočka, a professional police officer attached to the Omarska police station who participated in
the operation of the Omarska camp as a deputy commander of the guard service, Dragoljub Prcać, a
retired police officer and crime technician at the Omarska police station who served as administrative
aide to the commander of the Omarska camp, Milojica Kos, a guard shift leader in the Omarska camp,
Mlađo Radić, a professional police officer at the Omarska police station and shift leader at the Omarska
camp, and Zoran Žigić, a taxi driver mobilized to serve as a reserve police officer who briefly worked at
the Keraterm camp and specifically entered Omarska and Trnopolje with the purpose of abusing and
killing prisoners, stood trial for allegedly having instigated, committed or otherwise aided and abetted
the persecution of Bosnian Muslims, Bosnian Croats, and other non-Serbs in the Prijedor area including
by participation in various crimes and continuation of the conditions in the camp. The prosecution
accused all defendants of individual criminal responsibility for inhumane acts as a crime against
humanity and outrages upon personal dignity as a violation of the laws or customs of war; Žigić with
individual criminal responsibility, and Kvočka, Prcać, Kos, and Radić with individual and superior criminal
responsibility, for crimes against humanity for persecution, murder, and torture; and violations of the
laws or customs of war for murder, torture, and cruel treatment; and Radić with individual criminal
responsibility for rape as a crime against humanity.

In 2001, the Trial Chamber convicted Kvočka, Prcać, Kos, and Radić as members of a criminal enterprise
acting with individual criminal responsibility of murder and torture as violations of the laws or customs
of war and persecution as a crime against humanity; the Trial Chamber convicted Žigić with murder and
cruel treatment as violations of the laws or customs of war and persecution as a crime against humanity.

In 2005, the Appeals Chamber decided the appellants appeals, and upheld the findings of the Trial
Chamber except with regards to the conclusion that Žigić participated in a joint criminal enterprise, and
quashed his convictions for crimes committed at the Omarska camp “in general,” while maintaining his
convictions for specific crimes. The Trial Chambers sentenced Kvočka to seven years’ imprisonment,
Prcać to five years’ imprisonment, Kos to six years’ imprisonment, Radić to 20 years’ imprisonment, and
Žigić to 25 years’ imprisonment, all of which were upheld on appeal.

PROSECUTOR VS MILAN LUKIC AND SREDOJE LUKIC, VISEGRAD

Milan Lukić, the Bosnian Serb leader of the White Eagles/ Avengers paramilitary group in Višegrad, and
Sredoje Lukić, a Bosnian Serb member of the White Eagles paramilitary group and a police officer in
Višegrad, stood trial for allegedly having committed and aided and abetted the commission of crimes
against Bosnian Muslims and other non-Serbs in the Višegrad municipality through acts including the
summary murder and extermination of Bosnian Muslim men at the Drina River and Varda Factory; the
burning of houses during which the paramilitary forced Bosnian Muslims to remain inside; and the
detention of Bosniak men at the Uzamnica military barracks. The prosecution accused M. and S. Lukić of
individual criminal responsibility with crimes against humanity for persecutions, murder, inhumane acts,
and exterminations; and with violations of the laws or customs of war for murder and cruel treatment.
In 2009, the Trial Chamber convicted M. Lukić of violations of the laws or customs of war for murder and
cruel treatment, and of crimes against humanity for persecutions, inhumane acts, and exterminations,
with the conviction for exterminations disposing of the charge of murder as a crime against humanity;
the Trial Chamber convicted S. Lukić of crimes against humanity for persecutions, inhumane acts, and
murder; and for violations of the laws or customs of war for murder and cruel treatment.

In 2012, the Appeals Chamber decided M. Lukić’s appeal, and found that the Trial Chamber erred with
regards to the number of persons who died during a fire M. Lukić started at the Omeragić house; the
Appeals Chamber also found that the Trial Chamber erred when it failed to adequately assess the impact
of some of the prosecution’s witnesses involvement with the Women Victims of War Association and its
potential impact on their credibility. The Appeals Chamber decided S. Lukić’s appeals, and found that the
Trial Chamber erred when it found that S. Lukić beat detainees on several occasions and the Appeals
Chamber overturned S. Lukić’s convictions relating to the Uzamnica detention camp. The Trial Chamber
sentenced M. Lukić to life imprisonment and S. Lukić to 30 years’ imprisonment; the Appeals Chamber
affirmed the sentence of life for M. Lukić and reduced S. Lukić’s sentence to 27 years’ imprisonment.

Prosecutor v. Omar Hassan Ahmad Al Bashir

On May 6, 2019, the International Criminal Court (ICC) reversed an earlier decision seeking
intergovernmental follow-up on Jordan’s failure, in March 2017, to arrest then-Sudanese President Omar
Al-Bashir, whom the ICC seeks to prosecute for alleged crimes against humanity, war crimes, and
genocide in Darfur. In a split decision, the Appeals Chamber confirmed that Jordan had violated its
international obligations when it failed to arrest Al-Bashir, but concluded that the Pre-Trial Chamber II
had improperly exercised its discretion in referring Jordan for non-cooperation because it had not
treated South Africa in the same way and because Jordan had sought to consult the Court on whether
arresting Al-Bashir would conflict with its other international obligations, specifically regarding respect
for Head of State immunity.

Case Background

This case arises as the result of Jordan’s appeal of a prior decision of ICC Pre-Trial Chamber II, finding that
Jordan had violated its obligation as a State party to the Rome Statute by failing to arrest and surrender
Omar Al-Bashir, then president of Sudan, when he visited the country for the 28th Summit of the League
of Arab States in March 2017. See Prosecutor v. Omar Hassan Ahmad Al Bashir, 6 May 2019, para. 13.
The Pre-Trial Chamber held that this action constituted non-compliance with Jordan’s obligations under
the Statute and that Jordan should be referred to the Assembly of States Parties and to the United
Nations Security Council, in accordance with Article 87(7) of the Rome Statute. See id. at para. 14.
Further, the Pre-Trial Chamber concluded that in cases of a UN Security Council referral to the ICC, Sudan
—not a State party to the Rome Statute—had the same obligations as a State party to cooperate with
the Court.

In March of 2005, the UN Security Council adopted resolution 1593 (2005) referring the situation in the
Darfur region of Sudan to the ICC. See id. At para. 12. Years later, in March 2009 at the request of the ICC
Prosecutor, the Pre-Trial Chamber I issued a warrant for Omar Al-Bashir’s arrest on allegations of war
crimes and crimes against humanity committed during his time as President of Sudan. See id. At para. 12.
A second arrest warrant was issued in July 2010, adding a charge of genocide to the list of crimes for
which he was accused. See id. The ICC notified all States parties to the Rome Statute, ensuring
awareness of their obligation to take Al-Bashir into custody should he enter their territory. See id.