First MICT Appeals Judgment in Rwandan Genocide case

Augustin Ngirabatware

Augustin Ngirabatware

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

Criminal Complaint Against Nigerian General Buhari To Be Filed With The International Criminal Court On Short Notice

by Göran Sluiter

Muhammadu Buhari

General Muhammadu Buhari

Today, 15 December 2014, it is announced that a further petition will be filed on short notice with the Prosecutor of the International Criminal Court (ICC) in the Hague. The petition calls for the criminal investigation and ultimate prosecution of General Muhammadu Buhari – the All Progressive Congress party candidate in the 2015 Nigerian presidential elections.

Buhari is suspected of having committed crimes against humanity through the instigation of post election violence in 2011 in which more than 800 innocent Nigerians died and countless churches and schools in the northern parts of the country were destroyed. On April 16, 2011, during one of Buhari’s campaign rallies he -and some C.P.C Political/ party stalwarts- called upon his party supporters and loyalists “to destroy, kill and maim men, women, and children” who were opposed to his candidature.

A petition was originally filed with the ICC in the aftermath of the 2011 atrocities by the non-sectarian Northern Coalition for Democracy and Justice (NCDJ). However, as Buhari, a former military ruler, has now formally launched a fresh attempt to return to power in the February elections, a decision has been made to supplement the 2011 petition with additional facts and legal analysis, and a renewed request for the ICC Prosecutor to urgently launch criminal investigations due to mounting concerns that Nigeria may again witness the killing and bloodshed of innocent civilians. Continue reading

ICC President Calls on the United States to Ratify the Rome Statute

Judge Song

Judge Sang-Hyun Song, President of the International Criminal Court

On the 10th of December 2014, one day after the release of the US Senate Intelligence Committee’s report on torture, President Sang-Hyun Song of the International Criminal Court (ICC) called on the US to ratify the Rome Statute in order to help furthering the promotion of accountability for human rights violations through effective and efficient litigation of international crimes.

Judge Sang-Hyun Song, elected as president of the ICC in 2009, noted that, although the ICC is not a human rights court in the strict sense, it was created to help protect core human rights and values. “With its mandate to fight impunity for the most serious crimes under international law […] one could say that the ICC is a criminal court with a strong human rights perspective.”

Mr Sang-Hyun Song acknowledged that “the ICC will never be able to stop impunity on its own.” Which has also never been the intention. He added that “it is primarily the job of States themselves to investigate and prosecute serious international crimes.”

He emphasised that the ICC is a court of last resort and that it can investigate and prosecute only when national jurisdictions in question are unwilling or incapable of doing so. In the case of the US torture claims, it seems that the US is indeed unwilling to prosecute the US officials responsible for the torture committed against suspects after the 9/11 attacks. Continue reading

UN Special Rapporteur on Human Rights Calls for Prosecution of CIA Officials

Court HammerIn a statement made yesterday, the United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Ben Emmerson, welcomed the publication of the summary of the Feinstein report on crimes of torture and enforced disappearance of terrorist suspects by the CIA during the Bush-era.

“The summary of the Feinstein report […] confirms what the international community has long believed – that there was a clear policy orchestrated at a high level within the Bush administration, which allowed to commit systematic crimes and gross violations of international human rights law”, said the Special Rapporteur.

Ben Emmerson added that it is now time to take action and bring to justice the individuals listed in the report, irrespective of the fact that the policies revealed in the report were authorised at a high level within the US Government.

The Special Rapporteur highlighted that international law prohibits the granting of immunities to public officials who have engaged in acts of torture and therefore that CIA officers who physically committed acts of torture bear individual criminal responsibility for their conduct

“This applies not only to the actual perpetrators but also to those senior officials within the US Government who devised, planned and authorised these crimes”, he said.

For Ben Emmerson, the heaviest penalties should be reserved for those most seriously implicated in the planning and purported authorisation of these crimes. Moreover, he said, former Bush Administration officials who have admitted their involvement in the programme should also face criminal prosecution for their acts.

The Special Rapporteur concluded that torture being a crime of universal jurisdiction, the perpetrators may be prosecuted by any other country they may travel to. However, he added that the primary responsibility for bringing those responsible to justice rests with the US Department of Justice and the Attorney General.

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.

Expert Initiative on Promoting Effectiveness at the International Criminal Court

International Criminal Court

The International Criminal Court

Yesterday, the Report of the “Expert Initiative on Promoting Effectiveness at the International Criminal Court” was officially launched at an event at The Hague Institute for Global Justice.

The Report was prepared by a group of experts in the field of international criminal law (practitioners and law professors) over a period of eighteen months.

It was supported by the Federal Ministry of Foreign Affairs of Switzerland and made possible by the assistance of the Embassy of Switzerland in The Hague (The Netherlands) and the University of Amsterdam (UvA).

The Report contains an in-depth expert evaluation of the work and performance of the Court in a number of areas of activity relevant to the fulfillment of its mandate. Based on this evaluation and where pressing issues were identified, the Report recommends practical solutions that could be incorporated into the current practices of the Court to better its performance both in the short and long run. The Report provides recommendation not only to the organs of the Court but also to the States Parties and the ASP. Continue reading

ICC: Appeals Chamber Upholds Verdict and Sentence Against Thomas Lubanga

Thomas Lubanga © Reuters

Today the Appeals Chamber of the International Criminal Court (ICC) delivered its judgments on Thomas Lubanga’s appeal against the verdict issued by ICC Trial Chamber I, that Mr Lubanga was guilty of the enlistment, conscription and use in hostilities of children under the age of fifteen.

The Appeals Chamber issued simultaneously its judgment on the appeals of the Prosecutor and Mr Lubanga against the sentence imposed by the Trial Chamber. The Appeals Chamber confirmed, by majority, the verdict declaring Mr Lubanga guilty and the decision sentencing him to 14 years of imprisonment.

The Appeals Chamber rejected Mr Lubanga’s allegations that the proceedings were unfair and found that Mr Lubanga did not substantiate several grounds of appeal he raised. The Appeals Chamber established, with respect to factual errors, that it would not assess the evidence anew, but would intervene only if the Trial Chamber’s assessment of fact was found to be unreasonable. In applying this standard, the Appeals Chamber rejected, among others, the alleged errors in the Trial Chamber’s findings relevant to the age of the child soldiers.

With respect to the alleged legal errors regarding Mr Lubanga’s individual criminal responsibility, the Appeals Chamber confirmed the Trial Chamber’s approach that a co-perpetrator must make an essential contribution and does not need to personally and directly commit the crime.

With respect to the Prosecutor’s and Mr Lubanga’s appeals against the Sentencing Decision, the Appeals Chamber held that a Trial Chamber enjoys broad discretion in determining a sentence. The Appeals Chamber rejected all the grounds of appeal raised by the Prosecutor and Mr Lubanga, finding that the sentence was not disproportionate to the gravity of the crimes and reflected Mr Lubanga’s culpability for the crimes for which he was convicted. Accordingly, the Appeals Chamber confirmed the total sentence of 14 years.

For the Conviction Decision, click here.

For the Sentencing Decision, click here.

Fate of 1,655 people in Kosovo Still Unresolved

Kosovo victimsThe fate of 1,655 people gone missing in Kosovo during the clashes in 1998 and 1999 remains unresolved, the Working Group in charge of missing persons stated at its 38th meeting on Tuesday.

In the course of ten years of its existence, the Working Group in charge of cases of persons gone missing in Kosovo managed to reduce the number of unsolved cases from 3,200 to 1,655, Chair of the Working Group Lina Milner said.

She noted that the key condition for progress in solving the fate of the missing is embodied in a continuous and constructive dialogue based on humanitarian grounds, without political rhetoric from Belgrade and Pristina.

Milner noted that 68 cases of missing persons have been solved this year and added that considerable progress has been made, especially in terms of exhumation of the grave site at Rudnica near Raska (southern part of central Serbia), as well as victim identification and delivery of the remains to the families. Continue reading