May 21st, 2013 by Raphaelle Rafin
The constitutional court of Guatemala has just overturned former dictator José Efraín Ríos Montt’s conviction for genocide and crimes against humanity. Mr. Ríos Montt, in office in 1982-1983 following a military coup, was found guilty on 10 May 2013 of overseeing the deliberate killings by the armed forces of at least 1,771 members of the Maya Ixil population when he was ruling the country and was sentenced to 80 years in prison.
Guatemala’s constitutional court has deemed that all proceedings that followed the 19 April dispute were to be annulled. The trial is to restart from that point, when proceedings were suspended over a quarrel between judges over who should take the Ríos Montt case. For a few hours on that day, Mr. Ríos Montt was without legal representation at his side. A few hours which have set back the case by over a month.
Mr. Ríos Montt became in May the first former head of state to be found guilty for genocide in clearly genuine national proceedings. After the constitutional court’s decision, his lawyers immediately filled an appeal. Following his conviction, Mr. Ríos Montt spent one day in prison before he was transferred to a military hospital, and he is now expected to return to his home under house arrest.
May 13th, 2013 by Ravipal Bains
José Efraín Ríos Montt, former dictator of Guatemala, has been found guilty of genocide for his role in the slaughter of 1,771 people belonging to the indigenous Mayan ethnic group known as the Ixil in the 1980s. The 86 year old was found guilty by a three-judge tribunal and sentenced to 80 years in prison, 50 years for genocide and 30 years for crimes against humanity.
Prosecutors alleged that Ríos Montt turned a blind eye as soldiers raped, tortured, and killed during his 1982-1983 reign. Ríos Montt denied the charges, saying he did not know or order the massacres during his time in charge. Holding Ríos Montts guilty, Judge Yasmin Barrios, who presided over the trial, stated that “Rios Montt had full knowledge of everything that was happening and did not stop it.” She added, “We are convinced that the acts the Ixil suffered constitute the crime of genocide.”
The judges however, acquitted Ríos Montt’s co-defendant, Jose Mauricio Rodríguez-Sánchez, who served as the director of intelligence.
This verdict sees a culmination of series of events that began with an application with the Public Ministry in 2001 seeking the investigation into the violations committed in 1982 and 1983. Rios Montt was included as a defendant on January 26, 2012 after losing his immunity as a member of Congress. The trial was suspended on April 19 following a walkout by defense lawyers and due to a controversial ruling by Judge Patricia Flores that annulled the trial. However, the trial resumed on 30 April after a decision by the Constitutional Court that Judge Patricia Flores could only adjudicate on the issue of incorporation of the defense’s evidence.
The verdict has been welcomed by human rights and international organizations. David Tolbert, president of ICTJ said in a statement that, “This was the first time that a former head of state has been tried for genocide in clearly genuine national proceedings. Despite the many obstacles, its success shows the importance of justice being done nationally, even when the odds are long. It is a great leap forward in the struggle for justice in Guatemala and globally.” José Miguel Vivanco, Americas director at Human Rights Watch, said that “the conviction of Rios Montt sends a powerful message to Guatemala and the world that nobody, not even a former head of state, is above the law when it comes to committing genocide.”
Ríos Montt first attempted to become President of Guatemala in an unsuccessful election in 1974. But later in March 1982, he came to power through a military coup. His 18-month reign marked the bloodiest phase in Guatemala’s 36-year civil war in which an estimated 250,000 died.
May 10th, 2013 by Raphaelle Rafin
Uhuru Kenyatta and William Ruto "UhuRuto" 2013 Presidential Campaign
The International Criminal Court (ICC) Chief Prosecutor Fatou Bensouda dismissed Kenya’s appeal to end the cases facing President Uhuru Kenyatta and Deputy President William Ruto. ICC Prosecutor Bensouda told the United Nations Security Council (UNSC) on Wednesday that Kenya had made “unfounded and incorrect” claims in urging it to end the two cases.
Kenya’s Permanent Representative to the UN Macharia Kamau submitted to the UNSC a petition from the Kenyan government on Tuesday asking for the cases to be terminated. “What this delegation is asking for is not deferral. What this delegation is asking for is the immediate termination of the case at the Hague without much further ado,” the petition said. In the statement, the Kenyan government warned that if recently elected Kenyatta and Ruto were to face trial, violence could break out in Kenya and that the entire region’s stability would be threatened.
ICC Prosecutor Bensouda described Kenya’s appeal as “a backdoor attempt to politicise the judicial processes” of the ICC. This week’s appeal came a month after Koki Muli Grignon, the Kenyan deputy UN ambassador, challenged the jurisdiction and performance of the ICC at the UN General Assembly. Arguing that the Kenyan justice system is able to deliver justice impartially, Ms Grignon asked for the Kenyan cases to be transferred to national courts. “Punitive vengeance in the name of justice cannot be a means to reconciliation; it instead festers quietly until … it explodes,” Ms Grignon then declared.
Mr. Kenyatta and Mr. Ruto are facing charges of crimes against humanity for planning and funding violence that followed the national elections in Kenya in 2007-2008 and that killed 1 133 people.
May 9th, 2013 by Raphaelle Rafin
The Antonio Cassese Initiative for Justice, Peace and Humanity has published its second e-letter listing its various activities, past and future. Andrew Clapham is the special guest of this second issue and provides comments upon the recent adoption by the UN General Assembly of the Arms Trade Treaty.
Upcoming events organized by the Initiative include the Summer School on Post-Conflict Justice and State Building in July, a Workshop in Florence on Enforced Disappearances and a Conference in Mexico.
Set up in April 2012 to commemorate Antonio Cassese’s legacy in upholding the ideals of justice in a meaningful manner, the Initiative is committed to promoting education, assistance and training in the disciplines dear to him. The Initiative is entirely reliant on the goodwill of the International Criminal Law community and those associated with the Geneva Academy, limited support and sponsorship from the canton at Geneva and the university of Florence, and its membership fees.
May 9th, 2013 by Ravipal Bains
Human Rights Council (UN Photo: Geneva)
The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR) came into force on 5 May 2013. The Optional Protocol would allow the citizens of a member state to apply to the United Nations (UN) Committee on Economic, Social and Cultural Rights when their economic, social, or cultural rights such as right to food, adequate housing, health, or education are violated.
The application to the Committee on Economic, Social and Cultural Rights is subject to the rule of exhaustion of domestic remedies. However, the committee can initiate an inquiry if it receives reliable information indicating “grave or systematic violations by a state party of any of the rights covered by the Covenant.”
Following the inquiry, as per Article 9 of the Optional Protocol, the Committee must decide on the claim and give recommendations, if any, to the parties concerned. The state party is then required to give due consideration to the committee’s views as well as recommendations and submit a written response within six months explaining the action taken. If the Committee considers it appropriate it may invite the Party to submit further information about any measures the state has taken.
The Optional Protocol came into effect three months after Uruguay became the required tenth country to ratify it in February. Other states that have ratified the Optional Protocol include Argentina, Bolivia, Bosnia and Herzegovina, Ecuador, El Salvador, Mongolia, Portugal, Slovakia, and Spain.
The United Nations High Commissioner for Human Rights, Navi Pillay, hailed the coming into force the Optional Protocol as “a major advancement” towards protection human rights. She stated, “Egregious violations of economic, social and cultural rights are occurring, often unnoticed, on a daily basis, which in the area of civil and political rights would have been immediately condemned. This Protocol will help to address this imbalance.”
Zdzislaw Kedzia, Chairperson of the Economic, Social and Cultural Rights Committee, commentating on the development said that the “international community has a good reason to celebrate this vital step towards a better protection of economic, social and cultural rights.” He also called on other states that are party to the ICESCR to ratify the optional protocol. He added, “in a way we are still at the beginning of the road. How fast we will progress on it will depend on all stakeholders.”
The Optional Protocol was adopted on 10 December 2008 during the sixty-third session of the General Assembly by resolution A/RES/63/117. It is open for signature by states that have signed, ratified, or acceded to the International Covenant on Economic, Social and Cultural Rights.
The International Covenant on Economic, Social and Cultural Rights came into force on 3 January 1976 and a total of 160 states are parties to it. The corresponding International Covenant on Civil and Political Rights came into force on 23 March 1976 and 167 states are parties to it. The Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) entered into force 37 years ago in 1976 and has been ratified by 114 States.
May 8th, 2013 by Julien Maton
Mathieu Ngudjolo Chui was released from the Schiphol asylum detention center in the Netherlands on 4 May 2013.
Ngudjolo felt compelled to apply for asylum when the Dutch authorities unlawfully deprived him of his liberty on 21 December 2012, after his acquittal by an ICC Trial Chamber and an order for his immediate release by the ICC Appeals Chamber pending appeals proceedings in his case.
The Dutch authorities were about to deport him to Congo, when mr. Ngudjolo saw no other option than to apply for asylum.
On 3 May 2013 a Dutch court ordered that mr. Ngudjolo had been unlawfully detained by the Dutch authorities, because the latter had not been able to rule on his asylum application within the deadline prescribed by law.
In addition to an order for his immediate release, the Dutch court also ordered the Dutch state to pay to mr. Ngudjolo monetary compensation of close to 2400 E for time unlawfully spent in detention.
In total, mr. Ngudjolo has spent four and a half months in detention, after the Appeals Chamber ordered his immediate release on 21 December 2012 and while it was clear to every reasonable observer that -leaving aside his asylum application- mr. Ngudjolo’s presence in the Netherlands would be required pending the appeal proceedings in his case.
Counsel for mr Ngudjolo in Dutch proceedings, mr Schüller and mr. Sluiter, are at present preparing a criminal complaint related to the abduction of mr. Ngudjolo when he was supposed to be released from the ICC Detention center, on 21 December 2012, which will be filed with the Dutch prosecution service.
May 7th, 2013 by Raphaelle Rafin
Yesterday, German authorities have announced the arrest of an alleged former guard at the Auschwitz extermination camp. Hans Lipsichs, 93, had been living in Aalen, South Germany, since 1983 after being expelled from the US for concealing his Nazi past when he immigrated to Chicago in 1956.
Hans Lipsichs ©Martin U.K. Lengemann
Mr. Lipschis was arrested after Stuttgart Public Prosecutor concluded there was “compelling evidence” that he had supervised and had been an accomplice in murder at Auschwitz from 1941 to 1945.
In an interview to the Welt am Sonntag last April, Hans Lipschis claimed he exclusively worked as a cook in the Auschwitz concentration camp. He did say, however, that he “heard about” what was going on.
The Simon Wiesenthal Center in Israel welcomed the arrest. Last month, Hans Lipschis was named on the organisation’s list of most-wanted Nazis for having “participated in the mass murder and persecution of innocent civilians, primarily Jews.”
The Demjanjuk precedent
The arrest of Hans Lipschis comes as a first step in the investigations recently launched by the German authorities into some 50 alleged former Auschwitz guards. The legal standards applicable to these cases might evolve, based on the “Demjanjuk precedent”. In May 2011, John Demjanjuk was found guilty by the Munich criminal court of being an accessory to the murder of 28,060 Jews while he was a guard at the Sobibor death camp in occupied Poland. Following the theory adopted by the Court, even without proof of participation in a specific crime, a person who served at a death camp can be charged with accessory to murder because the camp’s sole function was to kill people. But it remains unsure whether this new legal argument will be binding to coming cases: Demjanjuk died last year before his appeals were exhausted.
May 5th, 2013 by Julien Maton
The International Bar Association (IBA) is currently seeking high calibre legal interns to work on its International Criminal Court (ICC) Programme in The Hague to commence in June 2013.
The internship provides a unique opportunity to gain experience in the evolving field of international criminal justice.
The deadline for applications is May 13 2013.
The International Bar Association’s Human Rights Institute commenced the IBA International Criminal Court Programme in 2005.
The Programme monitors fair trial and defence related issues at the ICC and encourages the legal community to engage with the work of the Court.
The IBA’s work includes thematic legal analysis of the ICC’s pre-trial and trial proceedings, and ad hoc evaluations of legal, administrative and institutional issues which could potentially affect the rights of defendants, the impartiality of proceedings and the development of international justice.
The Programme also acts as the interface between the Court and the global legal community. As such, special focus is placed on monitoring emerging issues at the Court of particular relevance to lawyers and collaborating with key partners on specific activities, such as the IBA/ICC List Counsel Campaign, to increase engagement of the legal community on ICC issues.
Programme information is disseminated through regular reports, expert discussions, workshops and expert legal analysis. Based at the Peace Palace in The Hague, the IBA’s ICC Programme consults and interacts with Court officials, civil society organisations, academics and international lawyers.
Click here for information on how to apply.
May 5th, 2013 by Ravipal Bains
Human Rights Council Geneva (UN Photo: Geneva)
The sixteenth session of the Universal Periodic Review (UPR) concluded this week in Geneva. The session began on 22nd April and continued till 3rd May. Countries whose human rights records were reviewed during this session were: Azerbaijan, Bangladesh, Burkina Faso, Canada, Cape Verde, Cameroon, Colombia, Cuba, Djibouti, Germany, Russia, Turkmenistan, Tuvalu, and Uzbekistan.
This marks the second cycle of the review for these countries. Previously these fourteen countries were reviewed by the UPR Working Group in February 2009. A major part of the second cycle of reviews focused on the implementation of the recommendations of the first review. As per the resolution adopted by the Human Rights Council (HRC) in 2011 the second and subsequent cycles of the review “should focus on, inter alia, the implementation of the accepted recommendations and the developments of the human rights situation in the State under review.”
Colombia was amongst the first countries to be reviewed. The Colombian Government’s commitment to the peace process with the armed groups was noted. Chile amongst others urged Colombia to strengthen measures for rehabilitation of child soldiers that were engaged in the conflict between the government and armed groups. The country was also called on to promote the participation of indigenous people in public policy making. Mexico, Philippines, and Slovenia also urged Colombia to ratify the Optional Protocol to the Convention against Torture. Continue reading ‘Sixteenth Session of UPR Concludes’
May 2nd, 2013 by Julien Maton
Saif al-Islam Gaddafi, the son of former Libyan dictator Muammar Gaddafi, has appeared in court today, charged with attempting to escape from the jail in which he has been held since he was arrested in November 2011.
Libyan prosecutor accuses Gaddafi of conspiring to break out of his detention last year, in the western mountain town of Zintan, aided by his former lawyer from the International Criminal Court (ICC), Melinda Taylor.
The Australian lawyer was herself arrested and held for three weeks last summer on suspicion of passing information to Mr Gaddafi. She subsequently said that Gaddafi’s rights were “irrevocably prejudiced” while she was in Zintan and that her detention proved he could not get a fair trial in Libya.
Evidence was briefly presented at the hearing, including a pen with a camera in it and a watch, which the prosecution alleges were used in passing illicit information.
Saif Gaddafi’s Counsel, iLawyer John Jones, said that “it’s a farce from start to finish”, adding that “his detention is Libya’s Guantánamo Bay. He’s been held incommunicado for 17 months without any meaningful judicial process.”
The case was postponed until September 19 and is separate from charges of crimes against humanity he faces from both Libya and the ICC.
May 2nd, 2013 by Julien Maton
Pristina clinic director Lutfi Dervishi was sentenced to eight years in prison for organised crime and human trafficking © AP
The European Union Rule of Law Mission in Kosovo (EULEX) on Monday sentenced five men to prison for their roles in an organ trafficking syndicate.
Two urologists at the Pristina Medicus Clinic, director Lufti Dervishi and his son Arban were sentenced to eight and seven years and three months respectively for organized crime and human trafficking.
Three other defendants, Sokol Hajdini, Islam Bytyqi and Sulejman Dulla, were sentenced to between one to three years for causing grievous bodily harm.
The Medicus Clinic recruited poor people from across Eastern Europe and central Asia, promising them 15 000 euros for their organs. Organ recipients paid between 80 000 and 100 000 euros to receive a transplant.
Prosecutors alleged that at least 30 illegal kidney removals and transplants were carried out at the Medicus clinic in 2008.
The illegal trafficking was uncovered in 2008 after a Turkish organ donor, who just had his kidney removed, collapsed at Pristina airport while waiting for his flight back to Istanbul.
The clinic was closed down shortly after police launched its investigation.
This case was tried by EULEX because of the involvement of two Kosovan ministers, which were however freed after the proceedings.
EULEX Kosovo was set up in February 2008 as a deployment of EU police and civilian resources in the country to help the local judiciary handle sensitive cases after Kosovo declared independence from Serbia the same year.
May 1st, 2013 by Ravipal Bains
UN Photo Geneva
United Nations’ Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, has urged the Russian Government to take concrete measures to safeguard the independence and impartiality of the justice system.
Ms. Knaul visited the Russian Federation from 15 to 25 April 2013, to review the achievements and shortcomings of the country in ensuring the independence of the judiciary and the free exercise of the legal profession.
Reflecting on her visit Ms. Knaul said that although in Russia numerous reforms had been carried out the to improve the judicial functioning, she had received various reports of direct or indirect threats and improper interferences with the judiciary.
The Special Rapporteur also recognized the various legislative, administrative, and institutional measures taken to improve the promotion and protection of human rights in the Russian Federation. She appreciated the judicial reforms as part of the 2007-2011 Federal Special-Purpose Programme for the Development of the Judicial System. She added that the establishment of the National Working Group on Judicial Reform and the adoption in 2009 of the Law “On the securing of access to information on the activities of the courts of the Russian Federation” constituted welcome developments.
Nevertheless, she pointed out that the mind-sets of judges plays an important role in defining their independence and added “it seems that some judges are still under the influence of the old Soviet system and keep strong ties with the executive and prosecutorial authorities.” She urged that the “Russian Federation should take specific measures to guarantee the independence of the judicial system, protecting judges from any form of political influence in their decision-making.” Continue reading ‘UN Special Rapporteur Calls on Russia to Ensure Independence of Judiciary’
May 1st, 2013 by Ravipal Bains
Yulia Tymoshenko (Photo: Minny Robot/Flickr)
The European Court of Human Rights (ECtHR) issued its judgment in the Tymoshenko v Ukraine. The case concerned the detention of the former Ukrainian Prime Minister Yuliya Tymoshenko. The ECtHR found her detention to be “arbitrary and unlawful” constituting a violation of Article 5(1) of the European Convention on Human Rights (ECHR) which guarantees right to liberty and security. The Court stated that the restriction of her right to liberty on grounds of contemptuous behavior as indicated by the trial judge was also beyond the grounds mentioned in Article 5.
The court also found violations of Article 5(4) – right to a speedy review of the lawfulness of detention and Article 5(5) – right to compensation for unlawful detention. The court concluded “that the restriction of her liberty had not been applied for the purpose of bringing her before a competent legal authority on reasonable suspicion of having committed an offence, but for other reasons.” Therefore, constituting a violation of Article 18, which places limits on use of restrictions on rights of the European Convention on Human Rights.
However, the court held that there was no violation of Article 3, which prohibits inhuman or degrading treatment or punishment with respect to Ms Tymoshenko’s alleged ill-treatment during her transfer to hospital.
The judgment is not final under Articles 43 and 44 of the ECHR. In the three-month period following the judgment any party may request that the case be referred to the Grand Chamber of the Court. Reports from Kiev indicated that the Ukrainian government was reviewing the judgment however it looked likely that there would be an appeal.
Ms Tymoshenko who was at the center of the pro-democracy Orange Revolution was jailed for seven years for abuse of office over the 2009 deal for the supply of Russian gas in 2004 to Ukraine. She had lost in a contentious presidential election to Viktor Yanukovych in 2010.
The European Union welcomed the ruling stating that it “confirms the concerns consistently expressed by the EU.” EU also called on the authorities in Kiev “to reconsider thoroughly the situation of Ms Tymoshenko.”
April 28th, 2013 by Julien Maton
Christine Van den Wyngaert, Trial Chamber Judge at the International Criminal Court (ICC) in the case against the President of Kenya, Uhuru Kenyatta, asked to be withdrawn from the case.
This withdrawal occured after the Trial Chamber issued a decision this Friday on an Application and related requests from the Defence of Mr Kenyatta to refer to the Pre-Trial Chamber the preliminary issue of the validity of the Decision confirming the charges against Mr Kenyatta. This Application, based on article 64(4) of the ICC Statute, alleged that the Confirmation Decision was rendered invalid as a result of the Prosecution’s failure to disclose a potential exculpatory affidavit made by a witness (Witness 4) who allegedly provided key evidence relied upon by the Prosecution.
The Trial Chamber did not send the case back to the Pre-Trial Chamber and simply reprimanded the Prosecution for its failure to disclose the affidavit. However, in her concurring opinion, Judge Christine Van den Wyngaert said that the Prosecution failed to conduct a full and thorough investigation of the case prior to the Confirmation decision, using very strong words: “There can be no excuse for the Prosecution’s negligent attitude towards verifying the trustworthiness of its evidence. In particular, the incidents relating to Witness 4 are clearly indicative of a negligent attitude towards verifying the reliability of central evidence in the Prosecution’s case. […] The Prosecution offered a number of explanations for overlooking the problems with Witness 4′s evidence. However, what all these explanations reveal is that there are grave problems in the Prosecution’s system of evidence review, as well as a serious lack of proper oversight by senior Prosecution staff.”
However, in her concurrence with the other two judges, she explained that the Prosecution’s failures were not weighty enough to warrant a referral to the Pre-trial Chamber or withdrawal of charges against Kenyatta.
The Belgian judge asked to be excused from trying this case as well the one against Kenyan Deputy President, William Ruto, saying her caseload at the court was already too great.
There was no suggestion that her resignation was linked to her criticism of the Prosecution.
The Kenyan cases will now be heard by Judge Robert Fremr, who replaces Van den Wyngaert, along with Presiding Judge Kuniko Ozaki and Judge Chile Eboe-Osuji.
April 25th, 2013 by Raphaelle Rafin
The UK government is still determined to achieve Abu Qatada’s deportation to Jordan. Back in March, the British Home Secretary Theresa Maw had lost her appeal against the special immigrations appeals commission (SIAC) ruling preventing the deportation of Abu Qatada.
Latest developments in the Qatada case have come up this week. On Tuesday 23 April, the Court of Appeal refused permission for Theresa May to appeal to the Supreme Court. The Appeal Court judges acknowledged that Aby Qatada is “considered to be a dangerous and controversial person” but that it was “not relevant to the issues that are raised on this appeal.” The Court upheld SIAC’s ruling, considering that “torture is universally abhorred as an evil. A state cannot expel a person to another state where there is a real risk that he will be tried on the basis of evidence which there is a real possibility may have been obtained by torture.” The government reacted in saying it would now apply directly to the Supreme Court for permission.
Following the Appeal Court ruling, Theresa May announced diplomatic moves in the House of Commons. Yesterday Wednesday 24 April, Theresa May confirmed that the UK government has signed a mutual assistance treaty with Jordan. While the treaty has not yet come into force, it could come into play in order to provide necessary guarantees to Qatada’s deportation.
In addition, a more controversial avenue was mentioned by the Prime Minister’s spokesman who said the government was “exploring every option”, including a temporary withdrawal from the European Convention on Human Rights (ECHR). Theresa May added at the Commons: “We should have all options, including leaving the [European human rights] convention altogether, on the table. The prime minister is looking at all the options. That is the only sensible thing to do.” The issue of the UK withdrawing from the ECHR seems quite unlikely as it would be an unprecedented move which would have no consequence over domestic court rulings on Qatada.
Mrs. May’s declaration was soon contradicted by Deputy Prime Minister Nick Clegg who told LBC radio today that “No one has proposed and no one has put to me that we should start pulling out of this or that […] I have no idea even in theory whether jumping in and out of the ECHR would make the blindest bit of difference.”
Abu Qatada is currently being held in Belmarch prison. Qatada was re-arrested in March , following an alleged breach of bail conditions. “He was arrested for breaching his bail conditions, and obviously consideration is being given in looking at the material that was discovered to see whether that leads to prosecution,” May told MPs.
April 24th, 2013 by Raphaelle Rafin
Yesterday, the International Criminal Court (ICC) published a Defence notification announcing the death of Mr. Saleh Mohammed Jerbo Jamus (Jerbo). Mr. Jerbo died in North Darfur, Sudan on the afternoon of 19 April 2013, and was buried the same day. The Defence was informed on 20 April that Mr Jerbo was killed during an attack on his location by forces of the Justice and Equality Movement faction led by Gibril Ibrahim.
Mr. Jerbo, former Chief of Staff of SLA-Unity, was charged as a co-perpetrator with Abdallah Banda Abakaer Nourain for three war crimes: violence to life; intentionally directing attacks against personnel, installations, material, units or vehicles involved in a peacekeeping mission; and pillaging. Mr. Jerbo first voluntarily appeared before the Court on 17 June 2010. The trial was scheduled to start on 5 May 2014.
April 24th, 2013 by Raphaelle Rafin
Pakistan’s former military ruler Pervez Musharraf has appeared yesterday for the first time before an anti-terrorism court to be heard on his alleged role in the murder of former Prime Minister Benazir Bhutto.
Pervez Musharraf (c)EPA
Mr. Musharraf came back from a self-imposed four-year exile in London last March as he intended to participate in the upcoming general elections. But on 16 April Musharraf was disqualified by a high court tribunal from running in the elections.
After his return, the former President of Pakistan (2001 to 2008), who was brought to power through a military coup d’état, had promptly been called to order by the court and put under house arrest at his home in Islamabad. Pervez Musharraf faces three criminal cases: the murder of the leader of the independence movement for the Balochistan Province Akbar Bugti in 2006; the murder of Benazir Bhutto in 2007 and the illegal dismissal of judges on the same year. At the beginning of March, the Pakistani court had temporarily lifted the arrest warrants against Musharraf, which had facilitated his return from the UK.
On Friday 19 April, the conditions of Musharraf detention became more stringent as he was transferred from house arrest to the police headquarters in the city. The order to arrest him was “an unprecedented move against a former army chief who ruled the country for almost a decade,” the BBC’s Orla Guerin in Islamabad said.
Yesterday, Mr. Musharraf arrived at the Rawalpindi tribunal under police escort to respond to murder charges over Mrs. Bhutto. Benazir Bhutto was shot on 27 December 2007 while she was leading a demonstration followed by thousands of supporters. More than five years after the murder, no one has yet been condemned. Despite a tight security system, clashes have opposed pro and anti Musharraf. About 150 protesters opposed to Musharraf shouted “dog, dog, Musharraf dog” while about two dozen of Musharraf’s supporters chanted “Long live Musharraf.”
April 23rd, 2013 by Julien Maton
A Dutch asylum court recently determined that Dutch Immigration authorities had unlawfully rejected asylum applications of International Criminal Court (ICC) witnesses. They are ordered to take new decisions on the asylum applications, taking into account the judgements of the Dutch asylum court.
For full text judgements, see here and here.
April 23rd, 2013 by Raphaelle Rafin
The arrest of Dzhokhar Tsarnaev on 19 April led to a controversy on the relevant jurisdiction to try the Boston bombing suspect. On the day following the arrest, Republican Senators Lindsey Graham, John McCain and Kelly Ayotte, and Congressman Peter King published a common statement where they considered Mr. Tsarnaev should be given the “enemy combatant status”. In their opinions, Mr. Tsarnaev should be held by the military and under the Law of War. As they recall, an enemy combatant held under the Law of War is not entitled to Miranda rights or appointment of counsel. The Miranda rights are the warning given by police to criminal suspects on their fundamental rights, including access to a lawyer.
Indeed, Mr. Tsarnaev was interrogated over the week-end without being read Miranda rights. This was first interpreted as a signal that the suspect would be tried by a military court or as a constitutional breach of the suspect’s rights by the authorities. Reacting to the mix-up, the editorial board of the New York Times published on Sunday a column entitled “How to handle a Terrorism Case.” The article clarified that, as a naturalized American citizen, Mr. Tsarnaev could not be tried in a military commission, a legal system reserved for aliens.
Moving to the argument that the Boston bombing was to be included as part of the “threats from radical Islamists in small cells and large groups throughout the world”, the New York Times recalled that “even to be held by the military without trial would require a showing that he is associated with a declared enemy of the United States, such as Al Qaeda or the Taliban” and that no evidence had been brought to link the Tsarnaev brothers with jihadist intent.
Finally, the government ignored the argument in favour of a military trial and declared that Mr. Tsarnaev would be tried in the federal courts. On Monday, Dzhokhar Tsarnaev was formally charged with use of a weapon of mass destruction and malicious destruction of property resulting in death. Dzhokhar Tsarnaev is represented by William Fick, a defense lawyer with the federal public defender’s office.
The New Yorker has published a guide on the case against Dzhokhar Tsarnaev, a case where legal proceedings are likely to be lengthy and complex.
April 21st, 2013 by Julien Maton
This month, the Human Rights Review Panel (HRRP) held its 15th session in Pristina.
The Panel found among others a human rights violation of the European Convention on Human Rights (ECHR) by EULEX Kosovo in the implementation of its executive mandate. The complainant alleged that EULEX shared his witness statement with Serbian authorities in contravention of the prohibition of inhuman or degrading treatment, Article 3, ECHR and the right to respect for private and family life, Article 8, ECHR, respectively. The Panel held unanimously that there had been no violation of Article 3 but that there had been a violation of Article 8.
All decisions will be published on the Panel’s website upon translation into the Kosovo Albanian and Serbian languages.
Based on extensive consultations, and taking into account the need for providing redress for possible violations, the European Union established the Human Rights Review Panel in 2009. The HRRP is a non-judicial accountability mechanism endowed with the power to review alleged human rights violations by European Union Rule of Law Mission in Kosovo (EULEX) in the conduct of its executive mandate. The HRRP can make non-binding recommendations on the basis of its findings, and follow up on the implementation of its recommendations with the Head of EULEX.
The next Panel session is scheduled to take place from 4 to 7 June 2013 in Pristina.
April 21st, 2013 by Julien Maton
iLawyerblog is happy to announce that iLawyer John RWD Jones QC has been appointed by the Gaddafi family as Counsel for Saif Al Islam Gaddafi.
He will represent him until such time as Mouammar Gaddafi’s son is either able to choose his own lawyer or the International Criminal Court (ICC) finally rules on Libya’s admissibility challenge.
This follows the ICC Pre-Trial Chamber’s decision to grant the Court’s Office of Public Counsel for Defence’s request to withdraw from the case.
We congratulate John and wish him best of luck.
April 19th, 2013 by Julien Maton
José Efraín Ríos Montt's trial began in March
A judge in Guatemala has suspended the trial of former dictator José Efraín Ríos Montt.
Judge Carol Patricia Flores was recently reinstated to the case after being recused from it in February 2012. She ruled that all actions taken in the case since she was asked to step down were null, forcing prosecutors to start over.
“I am not doing this because I want to, but because it has been ordered by the Constitutional Court and the Supreme Court,” she said, in reference to a decision taken last week declaring her competent to carry out the pre-trial process.
In November 2011 Efraín Ríos Montt’s lawyers filed a complaint to remove Flores from the case, alleging that she was biased. In January 2012 she charged Ríos Montt with genocide and war crimes. Another judge took over in February and the case went to a three-judge panel.
The attorney general, Claudia Paz y Paz, called Flores’s decision illegal and said prosecutors would use all available resources to stop her interfering in the trial.
José Efraín Ríos Montt, who presided over one of the bloodiest periods of Guatemala’s civil war, has been accused of crimes against humanity and genocide in connection with the killing of 1771 indigenous Ixil Mayans during his rule in 1982-1983.
April 18th, 2013 by Julien Maton
Radovan Karadžić (R) and Ratko Mladić in 1995 (Photo: Reuters)
This Thursday, former Bosnian Serb leader Radovan Karadžić sought a subpoena to compel former Bosnian Serb army commander, Ratko Mladić, to testify in his defense during his trial at the International Criminal Tribunal for the Former Yugoslavia (ICTY).
Although both men are on good terms in the U.N. detention Unit where they are being held, Mladić’s Defence team argues in a letter addressed to Karadžić’s lawyer that their client has the right to remain silent in Karadžić’s case and “not testify or be forced to testify so as to potentially incriminate himself”.
Karadžić and Mladić originally were indicted together but are now standing trial separately because Karadžić was arrested before Mladić. Continue reading ‘Will Ratko Mladić Testify in the Karadžić Trial ?’
April 17th, 2013 by Julien Maton
The US Supreme Court has ruled today that US courts cannot hear lawsuits about human rights abuses abroad.
In their decision, the Justices ruled unanimously that a federal court in New York could not hear a case involving Nigerian activists who said the Anglo-Dutch company Royal Dutch Shell was complicit in rights abuses committed by the Nigerian government.
The case centered around the killing of Nigerian environmental activists during a crackdown on protesters in the oil-rich Ogoni region between 1992 and 1995.
The plaintiffs’case was based on the 1789 Alien Tort Statute, which allows U.S. courts to hear cases brought by foreigners for violations of international law and U.S. treaties.
In his opinion, Supreme Court Chief Justice John Roberts said that the Alien Tort Statute could not be used in the case against Shell because the law was not intended to be applied outside the US.
“Nothing in the text of the statute suggests that Congress intended causes of action recognised under it to have extraterritorial reach”, Chief Justice Roberts wrote.
The decision is expected to have an impact on other cases, including one against the mining company Rio Tinto over its actions in Papua New Guinea, or against oil giant Exxon Mobil over its operations in Indonesia.
April 13th, 2013 by Julien Maton
The International Criminal Court (ICC) has opened an investigation into allegations by four people who say they were subjected to sexual abuse by a court staff member working in the Democratic Republic of Congo.
The Court said that the aim of the investigation is to establish “the facts underlying the allegations and fairly determining any possible responsibilities.”
It is not clear whether the allegations will lead to a prosecution, and if so, where it would take place.
The court said it would turn the inquiry’s findings over to “ICC judges and relevant parties to the proceedings concerned” – presumably meaning legal authorities in Congo.
It is the first time an ICC employee has been accused of sexual abuse.
His name and nationality is being withheld.