Fatimata M’Baye (right) and Philip Alston, two members of the International Commission of Inquiry on the Central African Republic (c)Loey Felipe
Two members of the International Commission of Inquiry on the Central African Republic (CAR), yesterday called for the establishment of an international tribunal to prosecute perpetrators of war crimes committed in CAR.
Fatimata M’Baye and Philip Alston, two of the UN Commission’s three members, reported that crimes against humanity and war crimes have been widely committed by all parties in the ongoing conflict.
M’Baye and Alston warned that “unless the world pays attention and holds perpetrators accountable, the situation in CAR could very much spiral into genocide.”
According to the latest report of the Commission, the UN is currently in negotiations to establish a criminal court to prosecute ‘political players’ who have committed crimes against humanity.
“If that goes ahead we are extremely concerned in making sure that a majority of the judges must come from the international community…We do not believe that national judges have that type of independence,” law professor Alston said.
Meanwhile, the International Criminal Court (ICC) has opened investigations into atrocities committed in CAR since 2012. However, according to Mbaye, the ICC can only prosecute a few top leaders and there is a need for justice on a much larger scale.
More than two years of civil war and sectarian violence resulted in the killing of at least 5,000 people. According to UN estimates, nearly 440,000 people remain displaced inside the country while some 190,000 have sought asylum across the borders.
The International Court of Justice
The International Court of Justice (ICJ) will render its Judgment in the Croatia versus Serbia Genocide case on 3 February 2015, between 10:00 and 13:00.
In 1999, Croatia instituted proceedings before the ICJ against the Federal Republic of Yugoslavia (now Serbia) for violations of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.
Croatia alleged that between 1991 and 1995, Serbia committed genocide relating to Croatia’s war of independence following the collapse of the former Yugoslavia.
In 2010 Serbia filed a counter-suit, alleging that Croatia committed genocide during and after Operation Storm when some 200,000 ethnic Serbs were forced to leave Croatia in 1995 when Zagreb launched a military operation to retake its territory.
iLawyer Wayne Jordash QC is Counsel for the Republic of Serbia (along with Professors William Schabas, Andreas Zimmerman, Christian Tams and others).
Refugees from the eastern Bosnian enclave of Srebrenica wait for transportation on 12 July 1995 ©AP/Press Association Images
Bosnia’s constitutional court has ruled against the further release of war crimes convicts whose verdicts were quashed for misuse of criminal provisions. More than 20 war crimes cases were found to be invalid as it was ruled that the Bosnian criminal code was wrongly used at their trials, instead of the Yugoslav criminal code, which was in force at the time that the crimes were committed.
The retrials were ordered by the Bosnian Court after the European Court of Human Rights (ECtHR) in Strasbourg ruled in July 2013 that the Bosnian court used the wrong criminal code in Maktouf and Damjanovic. Following the ECtHR decision, several appeals were filed to the constitutional court, leading to the controversial release of convicts. Novak Djukic, one of these convicts originally sentenced to 20 years in prison for ordering an artillery strike on the town of Tuzla that killed 71 people, shortly absconded to Serbia after his release, therefore eluding from retrial.
As a result, the Bosnian court decided to block further release until retrials are completed, including the ones of Milorad Trbić, convicted of involvement in the Srebrenica genocide, and Ante Kovac, jailed for war crimes in Vitez in 1993.
Meddzida Kreso, the president of the Bosnian court, stated that the quashing of these verdicts was the biggest challenge for her institution over the past year because “the legal framework for the execution of imprisonment sentences and custody measures ceased to exist in the case of persons who were sentenced for the gravest violations of the international humanitarian laws”.
Yesterday the media reported that Switzerland has arrested an ex-Liberian rebel commander accused of participating in civilian massacres during the country’s first civil war in the 1990s.
Mandingoe fighters from ULIMO ©James Fasuekoi
Alieu Kosiah, a former rebel commander of the United Liberation Movement of Liberia for Democracy (ULIMO), was arrested in November 2014 for his alleged implication in civilian massacres committed between 1993 and 1995 in northwest Lofa County, Liberia.
Kosiah’s arrest makes Switzerland the second European country in recent months to have arrested a Liberian accused of atrocities during Liberia’s two civil wars. A few weeks earlier Martina Johnson, a NPFL Front Line Commander, was arrested in Belgium for her alleged role in wartime atrocities. Continue reading
Last week, on 29 December 2014, the defence team of the Khmer Rouge regime’s former chief ideologue, Nuon Chea, filed a full appeal against the 88-year-old’s life sentence and convictions for crimes against humanity.
Raising 223 grounds of appeal, Nuon Chea requested an acquittal on all charges for which he and Khieu Samphan were convicted in Case 002/01 by the Extraordinary Chambers in the Courts of Cambodia (ECCC) in August 2014.
The 270-page long appeal brief sets out numerous flaws in the criminal proceedings and in the trial judgment.
The brief first highlights two issues that have plagued the investigation: pervasive political interference and a biased flawed investigative approach of the Co-Investigating Judges.
Nuon Chea’s lawyers alleged that “the lack of independence and impartiality permeating the investigation were equally apparent before the Trial Chamber.” According to the defence, the Trial Chamber is “deeply biased” against the Accused and incapable of impartially assessing the evidence (appeal grounds 3 & 4).
The defence based this claim on a careful and detailed analysis of the judgment, which reveals, according to the Appeals brief, that a substantial portion of the findings are, or would be reasonably perceived to be attributable to a pre-disposition against the accused, and not genuinely related to the application of law, or to the assessment of the relevant facts. Continue reading
Palestinian Foreign Minister Riad al-Malki leaves the ICC at the Hague ©Reuters
UN Secretary-General Ban Ki-moon has officially announced that Palestine will join the International Criminal Court (ICC) on April 1, 2015. The Palestinians submitted the documents ratifying the Rome Statute last Friday, January 2.
In addition, the Palestinian government lodged a declaration to the ICC Registrar, Herman von Hebel, under article 12(3) of the Rome Statute stating Palestine’s acceptance of the jurisdiction of the ICC since 13 June 2014. The jurisdiction ratione temporis of the ICC over crimes committed in Palestine could therefore cover both Operations Brother’s Keeper and Protective Edge.
To date, 122 countries have ratified the Rome Statute, with the notable exceptions of the United States and Israel.
Last Wednesday, Palestinian leader Mahmoud Abbas signed the Rome Statute to join the International Criminal Court (ICC).
He signed the Rome Statute, the ICC’s founding treaty, at a Ramallah meeting.
However, the International Criminal Court will only acquire jurisdiction over war crimes, crimes against humanity and acts of genocide on Palestinian territory when Palestine will have ratified the Rome Statute.
The signature follows the rejection of a UN Security Council resolution demanding an end to the Israeli occupation of the Palestinian territories by late 2017.
Eight members of the Security Council voted for that resolution, while it needed the support of at least nine members in order to pass.
“We want to complain. There’s aggression against us, against our land ” […] “The Security Council disappointed us”, Mr Abbas said.
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.
The Human Rights Review Panel (HRRP) has issued its eleventh newsletter. The newsletter comprises a detailed analysis of the Panel’s decisions over the last two months.
The newsletter also highlights the meetings that the HRRP held in November with officials and international organisations.
The HRRP met with Mr Gabriele Meucci, the new Head of Mission of EULEX Kosovo. The Panel briefed Mr Meucci on its mandate, procedures and operations. The meeting was also an occasion to discuss issues of mutual interest and concern.
The HRRP also met with its sister institution, the Human Rights Advisory Panel (HRAP) of the United Nations Interim Administration Mission in Kosovo (UNMIK). The Panels compared mutual professional experiences to date, discussed matters of common concern and future challenges.
The HRAP and the HRRP are the first ever institutionalized entities engaged in the assessment of alleged human rights violations by international organizations in the conduct of their executive powers in peacekeeping missions and rule of law missions respectively.
The HRRP also continued its outreach campaign around Kosovo. It met with Mr Srećko Bogajčević, the Political Advisor and the Chief of Cabinet at the Ministry for Communities and Return. The meeting was an occasion to brief Mr Bogajčević on the mandate and procedures of the Panel as well as its case load and decisions.
The HRRP’s mandate is to review alleged human rights violations by the European Union Rule of Law Mission in Kosovo (EULEX) in the conduct of its executive mandate. The Panel will look into whether a violation of human rights occurred or not and formulate recommendations for remedial action.
iLawyer Dr. Guénaël Mettraux is a member of the Panel.
Tomorrow, the Arms Trade Treaty (ATT) will come into force, thereby becoming binding international law for all countries that ratified it. The ATT is the first legally binding international treaty that controls the global trade of conventional arms by prohibiting the transfer of weapons that may be used to commit atrocities and other serious human rights violations.
UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein hailed the imminent entry into force of the UN Arms Trade Treaty as a “landmark step in curbing the human rights violations that stem from the poorly regulated international trade in conventional weapons.“ “The unregulated arms trade is one of the main drivers of armed conflict and violence, contributing and facilitating the commission of human rights and humanitarian law violations.”
The ATT contains robust provisions preventing the transfer of conventional arms, ammunitions and parts and components to other countries when it is known that these arms or items would be used in the commission of genocide, crimes against humanity, war crimes or serious violations of international human rights law.
In addition, states are obliged to assess if there is an overriding risk that a proposed arms export to another country will be used for or contribute to serious violations of international law, in which case they are prohibited from selling these arms. Continue reading
Today, the Appeals Chamber of the Mechanism for International Criminal Tribunals (MICT) delivered its first appeals judgment in the case of Augustin Ngirabatware v. The Prosecutor. President of the Appeals Chamber, Judge Theodor Meron delivered a summary of the judgment in Arusha, Tanzania, in the case of Rwanda’s former Minister of Planning, Mr. Augustin Ngirabatware.
The Appeals judgment originated from the International Criminal Tribunal for Rwanda (ICTR)’s final trial judgment, delivered on 20 December 2012. With this judgment, the Trial Chamber had convicted Mr Ngirabatware for direct and public incitement to commit genocide, genocide and rape as a crime against humanity.
This morning, the Appeals Chamber unanimously affirmed Ngirabatware’s conviction for direct and public incitement to commit genocide. A majority of the Appeals Chamber also affirmed Ngirabatware’s conviction for instigating and aiding and abetting genocide. However, it held that that the Trial Chamber had erred in convicting Mr Ngirabatware for rape as a crime against humanity pursuing to the extended form of Joint Criminal Enterprise.
The Trial Chamber had convicted Ngirabatware pursuant to the extended form of JCE (JCE III) in relation to the repeated rape of a Tutsi woman in april 1994 by two members of the Joint Criminal Enterprise. As a quick reminder: the third, and most controversial, category of the Joint Criminal Enterprise, provides that all participants who had the intend to participate in the common design of the Joint Criminal Enterprise can be held criminally responsible for acts that fall outside of the common plan or purpose of the JCE if such acts are a “natural and foreseeable consequence of the effecting of that common purpose and if the defendant was reckless or indifferent to that risk.” Continue reading