ICC ASP Accepts Palestine as Non-State Party Observer

International Criminal Court

The International Criminal Court

Yesterday, at an open meeting of the Assembly of States Parties (ASP) of the International Criminal Court (ICC) held in New York, the ASP accepted Palestine as a “non-state party observer.” This is the same status as that awarded to other non-signatory states to the Rome Statute, such as the United States or Russia.

Rule 94 of the Rules of Procedure states that at the beginning of every session of the Assembly, the President, subject to the adoption of the Assembly, may invite states which are not parties to the Rome Statute and which have not signed the final act nor the statute to attend the assembly proceedings.

Al Jazeera’s Diplomatic Editor James Bays identified the acceptance as

“symbolic but adds to the international momentum for Palestinian statehood and has legal repercussions. If Palestine now applies to join the Rome Statute, it will be much harder to reject them. The acceptance clearly brings war-crimes trials against Israelis one step closer.”

The President of the ASP, however, warned that the effect of the acceptance was limited:

“The Assembly takes the following decisions on procedure independently and without prejudice to decisions taken for other purposes, including the decisions of any other organization or any organ of the court concerning legal matters before it.”

The Palestinian Authority sought to accept the jurisdiction of the ICC back in May 2009 by way of an Article 12(3) declaration. In April 2012, the Office of the Prosecutor determined that since Palestine was an “observer entity,” it could not ratify the Rome Statute. In November 2012, the UN upgraded Palestine’s membership status to that of a non-observer member state. Writing in an op-ed for The Guardian in August 2014, Prosecutor Fatou Bensouda stated that the effect of this upgraded status was such that Palestine could now join the Rome Statute.

To date, the Palestinian Authority has not taken any further steps to ratify the Rome Statute.

ICC Prosecutor Withdraws Charges Against Kenyan President

President Kenyatta (c) AP

Kenyan President Uhuru Kenyatta © AP

Yesterday, the Prosecutor of the International Criminal Court, Fatou Bensouda, filed a notice to withdraw charges against Kenyan President Uhuru Kenyatta citing a lack of evidence in the case. In her press release, Prosecutor Bensouda stated that there was no reasonable prospect of conviction at trial on the basis of the evidence before her. She acknowledged that

 

“this is a painful moment for the men, women and children who have suffered tremendously from the horrors of the post-election violence, and who have waited, patiently, for almost seven years to see justice done.”

She cited a number of key difficulties that her Office has faced in the prosecution of President Kenyatta for crimes against humanity including the death of key Prosecution witnesses and the withdrawal of others on the grounds of fear; the recanting by key witnesses of their accounts to investigation teams; and the Kenyan Government’s non-compliance with the investigation.

Fergal Gaynor, the legal representative of victims in the case said that the Kenyan Government had done everything in its power to obstruct the progress of the case.

Her decision comes following the 3 December refusal by the Trial Chamber to further adjourn the start of Mr Kenyatta’s trial pending the Government of Kenya’s compliance with the Prosecution’s request for records.

A withdrawal of charges is not legally an acquittal and the case against President Kenyatta may be reopened or brought in a different form if new evidence comes to light.

Prosecutor Bensouda called yesterday a “dark day for international criminal justice.”

ICC: Forthcoming Bemba Verdict Significant for Sexual Violence

Jean-Pierre Bemba during his trial (c) Reuters
Jean-Pierre Bemba during his ICC trial in 2013    © Reuters

The International Criminal Court (ICC) recently heard closing speeches in the case against former vice-president of the DRC, Jean-Pierre Bemba. 

Bemba is charged with command responsibility for war crimes and crimes against humanity allegedly committed by troops from the Movement for the Liberation of the Congo (MLC) when they went into the Central African Republic in 2003 to assist then-President Patassé with quashing a rebellion.

The Prosecution allege that the MLC troops were under Bemba’s effective command and control, that he knew or ought to have known that they were committing crimes, and that he failed to take steps to prevent the crimes or punish the soldiers.

Sexual violence has been a prominent part of the case against Bemba. Then-Prosecutor Luis Moreno-Ocampo said in his opening speech that:

“Women were raped systematically to assert dominance and to shatter resistance; men were raped in public to destroy their authority, their capacity to lead.”

According to the Prosecution, Bemba’s troops systematically raped, pillaged and murdered civilians in the CAR and committed hundreds of sexual assaults within a few days.

Defence counsel for Bemba, Peter Haynes QC, demanded Bemba’s acquittal contending that he did not receive information that crimes were being committed; that the troops fought under the command of CAR’s national armed forces and not Bemba; and that he tried to prevent the crimes.

iLawyer Guénaël Mettraux considers the judgment, which is due in 2015, to be a potential benchmark ruling, setting the standards by which political or military leaders will be held responsible for crimes committed by their subordinates:

“The decision might have relevance around the world because the ICC could very well set a precedent for other situations.”

Whilst sexual violence has been charged in other cases before the ICC, most famously in Lubanga and Katanga and Ngudjolo, all three defendants were acquitted on these counts.

The CAR continues to experience ongoing conflict and some observers are sceptical about the effect that the ICC judgment could have in the region. Patrick Vinck, researcher at the Harvard Humanitarian Institute warns that the trial, which took place 10 years after the atrocities, is not only a failure of the ICC but a failure of the international community to help the CAR achieve peace.

Kenya President Requests Excusal from ICC Trial

President Kenyatta (c) AP

Kenyan President Uhuru Kenyatta (c) AP

Yesterday, the defence team for Kenyan President Uhuru Kenyatta filed a request before a Trial Chamber of the International Criminal Court (ICC) to excuse the Kenyan President from attending in person a Status Conference scheduled for 8 October 2014. In the “urgent request”, lawyers for Kenyatta explain that his position as President of the East African Community requires him to chair a regional summit in Kampala, Uganda on the day in question. The meeting is to address economic development and regional security issues.

The request was filed pursuant to Rule 134 quater of the ICC’s Rules of Procedure and Evidence, which states that an accused subject to a summons to appear (as President Kenyatta is) may request excusal from attendance at trial when mandated “to fulfil extraordinary public duties.” The Trial Chamber shall grant the request when it considers excusal to be in the interests of justice and provided that the rights of the accused are fully ensured.

The rule is a recent amendment to the Rules of Procedure, which was adopted by the Assembly of States Parties in November 2013 following a request by the African Union.

President Kenyatta is charged with crimes against humanity perpetrated during the post-electoral violence in 2007. The start date of his trial has been postponed on numerous occasions amidst Prosecution complaints that the Kenyan Government has failed to disclose requested documents.

Event: The ICC and Libya, Complementarity in Conflict

Chatham House Royal Institute of international affairsYesterday, Chatham House in conjunction with Doughty Street Chambers hosted a lecture on “The ICC and Libya: Complementarity in Conflict”. The featured speakers were Professor Kevin Jon Heller from the School of Oriental and African Studies, Melinda Taylor, defence counsel and former head of the Office of Public Counsel for the Defence at the ICC, and Carla Ferstman, Director at REDRESS.

The discussion centred around the admissibility decisions in the cases of Saif al-Islam Gaddafi and Abdullah al-Senussi before the ICC. In July 2014, the Appeals Chamber held that the case against al-Senussi was inadmissible and that the Libyan authorities were willing and able to try him. Earlier, in May 2014, the Appeals Chamber reached the opposite decision in the case of Gaddafi holding that the case was admissible and ordering his transfer from detention in Zintan to the ICC. Continue reading

ICC Appeals Chamber Confirms Al-Senussi Case Is Inadmissible

Senussi1

Abdullah Al-Senussi (c) Libya Herald

Yesterday, the Appeals Chamber of the International Criminal Court (ICC) confirmed that the case against Abdullah Al-Senussi is inadmissible.

On 11 October 2013, Pre-Trial Chamber I had declared the case against Mr Al-Senussi inadmissible on the grounds that the Libyan authorities were currently investigating Mr Al-Senussi and that they were willing and able genuinely to carry out domestic proceedings.

In rejecting the defence appeal, the Appeals Chamber held that there were no errors in the findings of the Pre-Trial Chamber that Libya is not unwilling or unable to genuinely prosecute Mr Al-Senussi, or in the exercise of its discretion in the conduct of the proceedings and in the evaluation of the evidence. Judges Usacka and Song appended respective separate opinions agreeing with the conclusion of the majority but formulating their own reasoning on the correct interpretation of the ‘same person, same conduct’ test, which must be satisfied to conclude that a given domestic authority is investigating or prosecuting the same case as that before the ICC.

Mr Al-Senussi held the rank of colonel in the Libyan Armed Forces and served as Muammar Gaddafi’s chief of intelligence before the fall of the regime during the Libyan uprising in 2011. The Prosecution had charged Mr Al-Senussi with murder and persecution as crimes against humanity for his involvement in utilising the State security forces to target the civilian population in an attempt to quell the revolution.

Mr Al-Senussi was charged alongside Muammar Gaddafi (since deceased) and Saif al-Islam Gaddafi. The latter also challenged the admissibility of his case before the ICC but the Appeals Chamber held on that occasion that the case was admissible.

Croatia Demands Extradition of General Martic

Milan Martic

Milan Martic (right) with General Radovan Karadzic (left) in 1994 (c) BBC News

On Monday, a court in Zagreb, Croatia, issued a European Arrest Warrant demanding the extradition of Serbian General Milan “Mile” Martic to stand trial in Croatia for shelling the towns of Karlovac and Jastebarsko near Zagreb in May 1995. During the conflict in the former Yugoslavia, Martic was interior minister, defence minister and president of the self-proclaimed Autonomous Region of Krajina located in the south of Croatia near the Bosnian border.

Martic is currently in Estonia serving a 35-year sentence of imprisonment for war crimes committed against non-Serbs in Croatia for which he was convicted by the International Criminal Tribunal for the former Yugoslavia in 2007. The ICTY concluded that Martic’s activities resulted in the expulsion of all Croatians and non-Serbs from the areas which were under his control.

Croatia had originally indicted Martic for war crimes in 2003 alongside Serbian military leader Milan Celeketic. However, authorities did not decide to proceed with the case against Martic until 2010 when it became clear that the ICTY would not prosecute Martic for the shelling of the towns.

Estonian authorities have requested time to consider the possibility of handing over Martic. Croatian authorities have indicated that the trial will go ahead regardless of the decision of

the Estonian authorities.

African Union Votes in Favour of Immunity for Senior Officials

African leaders

African Leaders at the African Union Summit last week

At a summit of the African Union held last Friday in Equatorial Guinea, African leaders present voted in favour of an amendment that would grant them and “senior officials” immunity from prosecution for war crimes, crimes against humanity, and genocide before the African Court of Justice and Human Rights.

The text of the amendment, which was passed was as follows:

“No charges shall be commenced or continued before the Court against any serving African Union Head of State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office.”

It is unclear who will be entitled to immunity as a “senior state official.” Amnesty International have called the move

“a step backwards in the fight against impunity and a betrayal of the victims who suffered serious human rights abuses.”

Ahead of the meeting on Friday, 42 African and international civil society rights groups objected to the proposed amendment noting in an open letter that the resulting impunity violates international and domestic laws as well as the constitution of the African Union.

The vote was part of a larger discussion on the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights. The African Court of Justice and Human Rights is the result of the decision of the African Union to amalgamate the African Court of Human and Peoples’ Rights and the Court of Justice of the African Union.

Judge Kaul Resigns from ICC for Health Reasons

Judge-Kaul

Judge Hans-Peter Kaul (c) ICC

Judge Hans-Peter Kaul resigned from the International Criminal Court with effect from today for health reasons. A German national, Judge Kaul served as an ICC judge for 11 years and as the President of the Pre-Trial Division from 2004 to 2009, as well as from 8 April 2014 until his resignation.

During his tenure at the Court, he was involved in proceedings regarding situations in Uganda, the Democratic Republic of the Congo, Darfur (Sudan), the Central African Republic, Kenya, Libya and Côte d’Ivoire. His seminal dissenting opinion to Pre-Trial Chamber II’s Decision to Authorise the Opening of an Investigation in the Situation in Kenya advocating for a stringent state or organisational policy requirement for crimes against humanity garnered much support in academic literature and continues to be discussed today.

ICC President Judge Song expressed regret at Judge Kaul’s resignation:

“I thank Judge Hans-Peter Kaul wholeheartedly for his dedicated service to the Court and his pioneering role in the ICC’s development, even before the Court was established. I worked closely with Judge Kaul, particularly when we were first sworn in together in 2003 and when he served with me in the Presidency as Second Vice-President from 2009 to 2012. I have enormous respect for his deeply humanist personality and his substantial contributions to international justice, which will continue to guide the Court in the future.”

Prior to assuming office at the Court in March 2003, Judge Kaul had a distinguished career in international law. From 2002-2003, he acted as chief negotiator and head of the German delegation in the negotiations that led to the establishment of the ICC. From 1996-2002, he served as the head of the International Law Division of the Federal Foreign Office in Bonn in which capacity he was involved in the seminal La Grand and Legality of the Use of Force cases before the International Court of Justice.

ICC: Germain Katanga Discontinues Appeal

Germain Katanga (c) ICC

Germain Katanga (c) ICC

This Wednesday, Germain Katanga discontinued his appeal against his conviction before the International Criminal Court (ICC). In a letter signed by Katanga and his defence counsel, David Hooper, Katanga stated that he “accept[ed] the conclusions rendered against [him] in the judgement and [he] express[ed] [his] sincere regrets to all who were affected by [his] conduct, including the victims of Bogoro.”

Katanga had been convicted by a majority of Trial Chamber II on 7 March 2014 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 Democratic Republic of the Congo. He was sentenced, again by majority, to 12 years’ imprisonment with credit for the time he has served whilst in detention in The Hague – 7 years to date.

The Prosecutor subsequently informed the Appeals Chamber that she also discontinued her appeal against the judgment and that she does not intend to appeal the sentence imposed on Germain Katanga.

The issue of reparations for victims will be considered next.