November 9th, 2013 by Michael Fender
The International Criminal Tribunal for Rwanda
Hirondelle News Agency reported yesterday that the International Criminal Tribunal for Rwanda (ICTR) will be unable to meet the closure deadline of 31 December 2014 set by the United Nations.
This is because the Tribunal, which has finished its lower court trials, is currently handling a complicated joint appeal of six individuals convicted for their roles in the Rwandan Genocide of 1994. The appellants include former Family Affairs Minister Pauline Nyiramashuko, the only woman held by the ICTR and the only woman to be charged with genocide before an international court.
The Appeals Chamber decision in this case is expected to be delivered in July 2015, according to a report on the ICTR website.
This report cites the need for translations of legal documents as the main cause for the delay. These documents include the 1,500 page English language judgment in the trial of Nyiramishuko and her son, Arsène Shalom Ntahobali, who is another of the joint appellants.
The Appeals Chamber is currently handling four other cases involving a total of nine individuals, including the former president and vice-president of the former ruling party MRND of Juvénal Habyarimana, the ex-head of state whose assassination triggered the 1994 genocide. Judgment in these cases is expected by the 31 December 2014 deadline.
November 7th, 2013 by Julien Maton
Studies by Swiss scientists have discovered levels of polonium at least 18 times higher than normal in Yasser Arafat’s exhumed remains.
They say their data is compatible with the theory that the Palestinian leader was poisoned with the radioactive element.
“You don’t accidentally or voluntarily absorb a source of polonium — it’s not something that appears in the environment like that,” said Patrice Mangin, director of the laboratory, on Thursday. He said he could not say unequivocally what killed Arafat.
The scientists had been unable to reach a more definitive conclusion because of the time that had lapsed since Arafat’s death, the limited samples available and the confused “chain of custody” of some of the specimens.
Polonium-210 is a highly radioactive substance. It is found naturally in low doses in food and in the body, but can be fatal if ingested in high doses. Continue reading ‘Arafat: Calls for International Inquiry after Poison Report’
November 3rd, 2013 by Ray Barquero
Photo Source: http://www.worldbulletin.net/
On Sunday the Bangladeshi International Crimes Tribunal (ICT) sentenced Chowdhury Mueen-Uddin, a UK-based community Muslim leader and Ashrafuzzaman Khan, a US citizen, to death in absentia for crimes that were committed during Bangladesh’s 1971 war of independence.
Both of the accused were tried in absentia, having been allegedly implicated in the killing of intellectuals during the 1971 war against Pakistan with the intent of ridding the new nation of intellectuals. They were found guilty on 11 charges relating to the abduction and killing of independence supporters, including journalists, teachers, and physicians.
Set up in 2010 by the present Awami League government, Bangladesh’s ICT is mandated to investigate and prosecute Bangladeshi nationals who collaborated with the Pakistan military regime during the Bangladesh liberation war.
Prosecutors allege that Mueen-Uddin was a member of the al-Badr militia group, the paramilitary wing of the West Pakistan Army that operated against the Bengali nationalist movement during that war.
The sentence was delivered on Sunday afternoon and is included in the 154-page judgement. According to the AFP news agency the judges determined that the accused ‘encouraged, […] gave moral support to and participated in the killing of 18 intellectuals’ and that ‘justice will not be done if [the accused] are not awarded capital punishment.’
The head judge of the ICT, Justice Obaidul Hassan, stated that all 11 charges brought by the prosecution against the accused were proven beyond doubt and that the death sentence will be executed after the arrest or the surrender of the convicted.
The trial was completed in just over 3 months and the defence attorneys appointed by the tribunal did not have any cooperation from the families of the accused. The prosecution presented as many as 25 witnesses to testify at the trial, while not even one witness was called to testify by the defence.
This latest development is expected to contribute to the already profuse controversy surrounding the tribunal, which is accused of political motivation, bias and of failing to meet international human rights standards of due process and fair trial in its proceedings.
November 3rd, 2013 by Julien Maton
The Pan African Lawyers Union (PALU) is developing a Directory of individuals, organizations and law firms offering or ready to offer pro bono legal representation, or any other form of legal aid, to indigent clients appearing before African continental and (sub) regional Courts and tribunals. This Directory will also include any established funds or facilities offering pro bono legal aid.
The PALU calls upon all individuals and entities offering, or ready to offer, such legal aid to fill the following short online Questionnaire.
Please note the deadline for completing the questionnaire is 10 November 2013.
The Directory will be included in a «Guide on Complementarity within the African Human Rights System». Its main scope is to promote access to justice for indigent applicants, to support partnerships with organizations offering legal aid, as well as for the use of the African international courts and tribunals aforementioned.
Please share with any networks or organisations to which this might be of interest.
If you need more information, please contact Ms. Irini Anastassiou at email@example.com or call +255 (27) 254 3192/4.
November 2nd, 2013 by Reka Hollos
Judge Mandiaye Niang (Photo: ICTY)
This week, the International Criminal Tribunal for the former Yugoslavia (ICTY) appointed Judge Mandiaye Niang as the third judge to sit on the bench hearing the case against Vojislav Šešelj. The opening had arisen as a result of Judge Harhoff’s removal for bias from the bench in August 2013 by a specially constituted chamber following the publication of a leaked letter written by the Judge in June.
The decision to recuse Judge Harhoff was confirmed in early October leaving only Judges Antonetti and Lattanzi on the bench. Judge Niang, interestingly, has recently been appointed not to the ICTY but rather to the International Criminal Tribunal for Rwanda where his mandate is not set to expire until December 2014.
The order by Judge Agius recommends that the newly composed chamber consult the accused on whether to rehear the case or to continue with the new judge.
November 2nd, 2013 by Reka Hollos
President Uhuru Kenyatta (Photo: AP)
On Thursday, the judges of the International Criminal Court (ICC) postponed the start date of Kenyan President Uhuru Kenyatta’s trial to 5 February 2014. The trial was due to commence in less than two weeks on 12 November.
Last week, defence for Mr Kenyatta had requested that the start date be postponed to allow the Prosecutor to investigate allegations of abuse of process in connection with several prosecution witnesses and intermediaries. In their response, the prosecution accepted that the allegations merited further investigation and was therefore in agreement with the postponement of the trial’s start date. Prosecutor Fatou Bensouda did stress, however, that Mr Kenyatta’s presidential duties were not a reason to delay the trial.
In light of the agreement between the parties, the judges considered that postponement was warranted. The Chamber did, nonetheless, express
“regret that repeated adjournments of the trial have been necessary because one or both parties have required more time to prepare.”
The judges therefore
“urge[d] both parties to accelerate their preparation in order to ensure that no further postponements are required.”
The decision is the third such postponement of the trial, which was originally set to commence on 11 April 2013 but was postponed to July and November 2013 subsequently.
November 1st, 2013 by Ray Barquero
Extraordinary Chambers in the Courts of Cambodia
Yesterday the Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) concluded 10 days of closing arguments in Case 002 against Khieu Samphan and Nuon Chea. The Prosecution requested life sentence for both accused. The Chamber will now retire for deliberations, and a judgement is expected sometime during the first half of 2014.
Nuon Chea was the former Deputy Secretary of the Communist Party of Kampuchea and Khieu Samphan was the former Head of State of the Democratic Kampuchea. They stand charged with crimes against humanity, grave breaches of the Geneva Conventions of 1949 and genocide against the Muslim Cham and the Vietnamese. Both have maintained their innocence throughout the proceedings.
Dubbed “one of the most complex human rights trials since Nuremburg,” Case 002 has been severed into a series of separate trials, each addressing a different section of the indictment. Yesterday marked the finalization of closing arguments in Case 002 that focused inter alia on forced movement of population as a crime against humanity. The Trial Chamber heard evidence about the historical background and the establishment of the Democratic Kampuchea government, the alleged role of the accused in that government and evidence regarding the administrative and communications structures within the Democratic Kampuchea.
In all the hearings portion of the trial, including closing statements, lasted for a total of 222 days and has been subject to an unprecedented level of public interest, with 103,274 persons attending the hearings. Throughout the trial 92 individuals gave evidence, including 3 expert witnesses, 53 fact witnesses, 5 character witnesses and 31 Civil Parties. Moreover, 2 treating doctors and 2 medical experts testified about the accused’s health conditions.
Readers will recall that two other co-accused, Ieng Sary and his wife Ieng Thirith were initially also part of Case 002. The proceedings against Ieng Sary terminated on 14 March 2013 following his death on the same day. Ieng Thirith was found unfit to stand trial due to her dementia and was thus separated from the case in November 2011.
As stated, a judgement in Case 002 is expected to be delivered sometime during the first half of 2014. Photos of the closing arguments are available here.
October 30th, 2013 by Julien Maton
Amsterdam Law School
Columbia University School of Law and the Amsterdam Law School offer a joint LLM programme in International Criminal Law. The central aim of the programme is to train a new style of international criminal lawyers by offering a broad and deep understanding of relevant issues and supporting the development of academic skills through the analysing of such issues.
The programme is unique because of the dual perspective it offers on international criminal law: the common law and criminal law-oriented focus from Columbia University and the civil law and criminal law perspective offered by the Amsterdam Law School.
iLawyer Guénaël Mettraux teaches in the programme.
For more information on the programme, click here.
October 27th, 2013 by Ray Barquero
Emblem of the International Tribunal for the Law of the Sea
A request for the prescription of provisional measures pending the constitution of an arbitral tribunal was submitted yesterday to the International Tribunal for the Law of the Sea (ITLOS) by the Kingdom of the Netherlands in a dispute with the Russian Federation. The dispute concerns the arrest and detention of the ‘Arctic Sunrise’ and its crew by Russian authorities.
According to the Netherlands, the Arctic Sunrise was boarded by coastguard officials on 19 September 2013, brought to the port of Murmansk Oblast and detained. The Netherlands maintains that 30 members of the vessel’s crew were arrested in Murmansk Oblast and that judicial proceedings have been initiated against them.
Subsequent to the detention of the vessel and its crew members, the Netherlands instituted proceedings against Russia under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS), claiming that the detention of the Arctic Sunrise and its crew was in violation of the provisions of that Convention.
The submission is not on the merits of the case and merely seeks the prescription of provisional measures by ITLOS pending the constitution of an arbitral tribunal. ITLOS may prescribe provisional measures if it considers that prima facie, the arbitral tribunal would have jurisdiction once constituted, that the urgency of the situation might so require and that it would be appropriate under the circumstances to preserve the respective rights of the parties to the dispute.
The request of the Netherlands asked the Tribunal to adopt and implement the following two measures:
(i) To order Russia to immediately enable the Arctic Sunrise to be resupplied, to leave its place of detention and the maritime zones of the Russian Federation, and to exercise the freedom of navigation in said zones;
(ii) To order Russia to immediately release the crew members, and to allow them to leave the territory and maritime zones of the Russian Federation.
The dates for the commencement of the oral proceedings in this dispute have not yet been set and will be determined in due course.
October 22nd, 2013 by Raphaelle Rafin
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 January 2014.
The internship provides a unique opportunity to gain experience in the evolving field of international criminal justice.
The deadline for applications is Friday 15 November 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.
October 21st, 2013 by Raphaelle Rafin
The European Court of Human Rights (ECtHR) delivered today its final judgment in the case of Janowiec and Others v. Russia. The case concerned complaints about the adequacy of the investigation by the Russian authorities into the 1940 Katyń massacre.
Amtliches Material zum Massenmord von Katyn, Berlin 1943
On 16 April 2012 in its Chamber judgment, the ECHR held that it could not examine the merits of the applicants’ complaint under Article 2 because it could not establish a genuine connection between the deaths of the victims and the entry into force of the European Convention in Russia in 1998. However, the ECtHR had found that the manner in which the applicants’ enquiries had been dealt with by the Russian authorities had attained the minimum level of severity to be considered inhuman treatment within the meaning of Article 3 of the Convention. Russia was found to have violated Article 3 with regards to 10 of the applicants who were considered close relatives of the Polish Officers killed in 1940.
On 24 September 2012 the case was referred to the Grand Chamber at the applicants’ request.
Today, the Court upheld a majority, that it had no competence to examine the complaints under Article 2 and reversed its judgment on Article 3. Indeed, the Court found by a majority that there had been no violation of Article 3. However, the ECtHR concluded that Russia had failed to comply with its obligations under Article 38 (obligation to furnish necessary facilities for examination of the case).
On the complaint under Article 3, the ECtHR acknowledged that the magnitude of the crime committed in 1940 by the Soviet authorities was a powerful emotional factor. However, from a purely legal point of view, the Court stated it could not accept it as a reason for departing from its case-law on the status of family members of “disappeared persons”. Indeed, in this case, the death of the applicants’ relatives was a certainty as it was publicly announced by the Soviet and Russian authorities. Thus, the status of “disappeared persones” could not be conferred to the applicants in this case. The Court therefore considered that their suffering had not reached a dimension and character distinct from the emotional distress inevitably caused to relatives of victims of a serious human rights violation. Accordingly, the ECtHR reversed the April judgment and found no violation of Article 3.
For the press release, click here.
For the delivery of the judgment, click here.
October 21st, 2013 by Dina Mahmoud
- شعار وزارة الخارجية (c) Ministry of Foreign Affairs of the Kingdom of Saudi Arabia
Last Friday, the United Nations Security Council unanimously elected five new non-permanent members: Lithuania with 187 votes, Nigeria and Chile with 186 votes each, Chad with 184 votes, and Saudi Arabia with 176 votes.
For Saudi Arabia, this election represents the first time in history that the country has be invited to join the Security Council for the duration of two consecutive years as the non-permanent member representative of the countries of Asia.
In an unprecedented move, Saudi Arabia rejected her first opportunity to temporarily join the Security Council, citing the Security Council’s failure to fulfil its duties of maintaining international peace & security as the reason behind her decision to decline the temporary membership offer
The Saudi Ministry of Foreign Affairs announced the country’s decision in a press release issued on its website, quoting the following speech on behalf of the Kingdom of Saudi Arabia: Continue reading ‘Saudi Arabia rejects non-permanent Security Council membership’
October 20th, 2013 by Reka Hollos
President Uhuru Kenyatta (Photo: Reuters)
On Friday, the judges of the International Criminal Court (ICC) partially granted the request of President of Kenya, Uhuru Kenyatta, to be excused from his trial. The majority of Trial Chamber V(B) held that Kenyatta could be excused from attending his trial with the exception of the following hearings: the opening and closing statements of all parties and participants, hearings when victims present their views and concerns in person, the delivery of judgement in his case and any other attendance ordered by the Chamber. If convicted, he is also required to attend hearings the delivery of the sentencing, the entirety of victim impact hearings, as well as reparation hearings.
Presiding Judge, Judge Ozaki, dissented. She considered that Article 63(1) of the Rome Statute imposes a duty on both the accused to be present at trial and on the Chamber to require the accused’s presence. She further did not consider that the Chamber had any discretion to set aside this duty under Article 64.
The majority decision is essentially the same as that rendered by the judges of Trial Chamber V(a) partially excusing Deputy President of Kenya, William Ruto, from attending his trial. That decision is currently on appeal before the Appeals Chamber. Judge Ozaki’s dissent specifically referred to the appropriateness of waiting for the Appeals Chamber’s determination which may well be dispositive of President Kenyatta’s request.
President Kenyatta is on trial for crimes against humanity committed in connection with the 2007-2008 post-electoral violence in Kenya. His trial is scheduled to start on 12 November 2013.
Meanwhile, Kenyan attitudes towards the ICC have not been favourable. On Thursday, Kenyan MPs in the National Assembly voted in favour of leaving the ICC and of repealing the Kenyan International Crimes Act, the domestic legislation implementing the provisions of the Rome Statute in Kenya with a view to enabling Kenya to cooperate with the Court. Whether this will indeed take place depends on the Kenyan Government.
October 19th, 2013 by Julien Maton
Last Wednesday, the European Commission released its annual progress report on Montenegro. Following the acquittals and the “low” sentences given this year in war crimes cases, the Commission said that the country needed to ensure justice for victims and that decisions in war crimes cases had to be in line with international humanitarian law.
“Montenegro needs to make efforts to tackle impunity. All outstanding reports of war crimes need to be duly followed up,” the report said.
The Commission also suggested that the judiciary was not using all its potential powers in war crimes cases, saying that the charges of command responsibility, co-perpetration or aiding and abetting had so far not been used.
In the first of two verdicts this year, four former Yugoslav army reservists were jailed in July for a total of 12 years for abuses at the wartime Morinj prison camp on the Montenegrin coast – a sentence that the European Commission described as “low”.
Victims expressed outrage over the decision and complained that the indictees’ superiors were not prosecuted.
In the other case, nine former interior ministry officials were acquitted in June of detaining and deporting Bosnian refugees.
October 13th, 2013 by Raphaelle Rafin
Erich Priebke, 100, died in Italy on 11 October 2013. Erich Priebke was convicted in 1998 of war crimes before the Italian Court of Appeal for his participation in the 1944 massacre of 335 civilians by Nazi forces at the Ardeatine Caves outside Rome. The massacre, ordered by Adolf Hitler, was carried out in retaliation for an attack by resistance fighters that killed 33 members of a Nazi military police unit a day earlier. Sentenced to life imprisonment, Priebke was allowed to serve his sentence under house arrest and stayed at his lawyer’s Roman home, Paolo Giachini.
Having escaped from a British prison camp in Rimini in 1946, Priebke had settled in Argentina. In 1994, an ABC News reporter tracked him down and obtained Priebke’s admission of his role in the massacre. Following the interview, Priebke was extradited to Italy in 1995. His trial lasted three years.
In his final interview, Priebke denied that gas chambers were used in Nazi concentration camps and that generations have been “brainwashed” into believing that they were. He acknowledged he could be prosecuted for denying the Holocaust, but said such laws “demonstrate fear of the truth coming out.”
October 11th, 2013 by Raphaelle Rafin
Yesterday, the Pre-Trial Judge of the Special Tribunal for Lebanon (STL) has publicly announced an indictment against Hassan Habib Merhi. Merhi is accused of being involved in the 14 February 2005 Beirut attack that killed former Prime Minister Rafik Hariri as well as 21 other victims.
Hassan Habib Merhi ©Arrouwad Newspaper
The indictment was filed on 5 June 2013 and all following procedural steps were kept confidential until this week. The Lebanese authorities were transmitted an arrest warrant on 6 August 2013 and were given 30 calendar days to carry out this obligation and report back on their efforts by 5 September 2013.
On 6 September, the Lebanese Prosecutor General submitted his confidential report to the Tribunal’s President stating that so far the accused has not been found. The STL President, Judge Sir David Baragwanath, considered that the efforts by the Lebanese authorities were sufficient to justify alternative means to search for the accused and decided to initiate a 30-day public advertisement phase with the help of the Lebanese authorities to locate the accused as well as to inform him of the charges against him and of his rights guaranteed under international law.
Hassan Habib Merhi is the fifth person accused before the STL in the case related to the 14 February 2005 Hariri attack. The Pre-Trial judge has set tentatively 13 January 2014 as the first day of trial for Salim Jamil Ayyash, Mustafa Amine Badreddine, Hussein Hassan Oneissi, Assad Hassan Sabra.
October 11th, 2013 by Raphaelle Rafin
The International Criminal Court (ICC) granted today the Libyan government request to take the Senussi case. The challenge to the admissibility of the case was filed by Lybian authorities on 2 April 2013 under the complementarity principle argument.
Abdullah al-Senussi with former Libyan Leader Muammar Gaddafi ©EPA
The ICC decided that the Senussi case is already pending before Libyan courts and that Libyan judicial authorities are competent (“willing and able”) to carry out the investigation. Therefore, the Judges concluded that the case is inadmissible before the Court, in accordance with the principle of complementarity enshrined in the Rome Statute.
Former intelligence chief Abdullah Al-Senussi is suspected of crimes against humanity along with Saïf Al-Islam Gaddafi. While the decision differs sharply from the ICC decision on May 31 in the case of Saïf Al-Islam Gaddafi, the ICC specified that it had “no bearing on the case against Saif Al-Islam Gaddafi.” In the Gaddafi case, the Court found that the evidence submitted by the Libyan authorities was “not sufficient to consider that the domestic and the ICC investigations cover the same case”, and concluded that Libya was “unable genuinely to carry out the proceedings against Mr Gaddafi”.
Al-Senussi is in the hands of the Libyan authorities, while Gaddafi is held by former rebels in the south of the country who refuse to hand him over to the government.
iLawyer Wayne Jordash is part of the team representing the interests of the Libyan government.
October 10th, 2013 by Reka Hollos
Vojislav Šešelj (Photo: ICTY)
On Monday, a specially convened chamber of judges denied the Prosecution’s request for reconsideration of the decision recusing Judge Frederik Harhoff from sitting in the Šešelj case.
On 28 August 2013, Judge Harhoff had been disqualified from sitting in Šešelj after the accused (who is representing himself) requested the Judge’s recusal on the grounds of a letter written by the latter to several of his colleagues in June 2013. The contents of the letter referred to “a more or less set practice” at the ICTY of convicting military commanders for crimes committed by their subordinates that was reversed this summer by the Appeals Chamber acquittals in the cases of Perišic, Gotovina, Štanišic and Simatovic. The letter also wondered whether the change in direction was the result of undue influence exercised by the US and Israel on the Tribunal’s President, Judge Meron, all of which left Judge Harhoff with “a deep professional and moral dilemma.”
On reconsideration, the chamber dismissed the Prosecution arguments that it had only considered the letter in isolation and that it did not take into account all of the circumstances that a reasonable observer would. It also held that it was correct not to take into account Judge Harhoff’s previous adjudication record as it is not relative or probative to the issue of bias.
Motions were also filed by Judges Antonetti, Latanzi, and Harhoff as well as by defence counsel for Stanišic and Zupljanin, a case which Judge Harhoff heard at trial. The Chamber however considered that neither of these parties had standing and therefore did not consider their motions.
Judge Harhoff’s disqualification is not the first speed bump that the Šešelj Trial Chamber has had to overcome. Šešelj has received three convictions for contempt of court since his trial started for having published confidential information about protected witnesses on his website.
A judgment is expected on 30 October 2013.
October 10th, 2013 by Raphaelle Rafin
The Antonio Cassese Initiative for Justice, Peace and Humanity has published its third e-letter listing its various activities, past and future. Christian Tomuschat is the special guest of this third issue and provides comments uponthe evolution of the concept of human rights and its significance today.
Upcoming events organized by the Initiative include the workshop Enforced Disappearance: Challenges to Accountability under International Law on 25 October in Florence and a Conference “A New Approach on Human Rigths in Mexican Criminal Proceedings” 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.
October 9th, 2013 by Raphaelle Rafin
The Human Rights Review Panel (HRRP) has recently issued its latest newsletter covering the period July to September 2013.
HRRP Newsletter no. 5 covers the conclusions of the 17th regular session of the Panel held in Pristina in August. The newsletter also addresses the Meeting with the EULEX Head of Mission, latest decisions of the Panel in the Vidovdan case and the public outreach campaign developed by the Panel.
For newsletter subscriptions, please send an email to the HRRP Secretariat.
October 8th, 2013 by Raphaelle Rafin
Goran Damjanovic and his brother Zoran Damjanovic, who were first convicted of torture as a war crime against civilians, will face a retrial. The Bosnian Court ruled on Friday 4 October 2013 that the decision taken by the European Court of Human Rights (ECtHR) required their cases to be reopened.
Damjanovic, Goran and Zoran - T.M.C. Asser Instituut
The ECtHR ruled on 18 July 2013 that Goran Damjanovic and other Bosnian war crimes convicts had been tried under the wrong criminal code. The ECtHR found that there had been a violation of Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, namely the non-retroactivity of criminal law. The Court concluded that “[t]his conclusion should not be taken to indicate that lower sentences ought to have been imposed, but simply that the sentencing provisions of the 1976 Code should have been applied in the applicants’ cases,” and not the 2003 Code.
Goran and Zoran Damjanovic were indicted as members of the Army of the Serb Republic of Bosnia and Herzegovina (BiH). They both allegedly played a prominent part in the beating of a group of about 20 to 30 male Bosniak prisoners in June 1992. The latter were then hors de combat, meaning they were to be accorded special protection under international humanitarian law.
The Trial Panel of the BiH Court found on 18 June 2006 both accused guilty of torture and Goran of illegal manufacturing and trade of weapons or explosive substances. Goran Damjanovic was sentenced to 12 years of imprisonment and Zoran Damjanovic to 10 years and 6 months of imprisonment. On 19 November 2007, the Appellate Panel upheld the Trial Panel’s verdict with regard to the crime of torture only.
“The verdict of the European Court found a violation of the European convention on human rights against Goran Damjanovic, considering that the criminal code of the former Yugoslavia from 1976 was supposed to have been used, instead of the criminal code of Bosnia and Herzegovina from 2003 [which allows for potentially shorter sentences],” the Bosnian court said in a statement.
“In the retrial, the Bosnian court will act in accordance with the European convention for the protection of human rights and basic liberties.” According to Senad Kreho, Goran Damjanovics lawyer, the facts of the case will not be re-examined: the retrial will only discuss the punishment and the mitigating and extenuating circumstances. “The criminal offence was determined and this is not in question,” said Kreho.
October 6th, 2013 by Julien Maton
At the end of last month, the Appeals Chamber of the Special Court for Sierra Leone (SCSL) upheld the Trial Chamber‘s sentence of 50 years against former President of Liberia, Charles Taylor.
It’s been largely debated whether the SCSL Appeals Chamber would follow the standard for aiding and abetting established by the ICTY Appeals Chamber in his Perišić judgment. This Chamber held that Momčilo Perišić, former Yugoslav army Chief of Staff, could not have been legally responsible for crimes committed by the Bosnian Serb Army he actively supported as it could not be concluded that Perišić’s provision of weapon, support and material to these forces was “ specifically directed” toward the commission of crimes.
The SCSL Appeals Chamber did not follow the ICTY’s interpretation of “aiding and abetting” in Perišić and upheld Taylor’s conviction, stating that it was not persuaded by the Perišić finding that “specific direction is an element of aiding and abetting liability under customary international law.”
It rather concluded that there are no cogent reasons to depart from its holding that the actus reus of aiding and abetting liability under Article 6(1) of the SCSL Statute and customary international law is that “the accused‘s acts and conduct of assistance, encouragement and/or moral support had a substantial effect on the commission of each charged crime for which he is to be held responsible.”
Last Thursday, the Defence for Jovica Stanišić filed a response to a Prosecution request seeking leave to file before the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) certain excerpts of the Taylor Judgement as supplementary authority to its Appeal Brief.
Quite interestingly, the Defence objects to all aspects of the excerpts being filed before the Appeals Chamber, except for the Taylor Appeals Chamber’s above-mentioned conclusion regarding specific direction, which it considers to be simply obiter as well as the only part of the excerpts to appear to be relevant to the appeal in Stanišić and Simatović.
Indeed, the Defence asserts that in the Taylor case, it was not raised by either of the Parties as an issue to be resolved. On the contrary, says the Defence, although the Prosecution and the Defence discussed the meaning of specific direction during the oral arguments, both parties accepted, for the purpose of the various arguments, that it had to be explicitly or implicitly demonstrated as either part of the actus reus (the Prosecution) or as part of the mens rea (the Defence).
Accordingly, the Defence says that the Appeal did not require the question of the existence of specific direction as a requirement of customary international law to be decided and considers the finding to be obiter.
iLawyer Wayne Jordash is Lead Counsel for Jovica Stanišić.
On 30 May 2013, the ICTY Trial Chamber acquitted of all charges Jovica Stanišić and Franko Simatović, former Chief of the Serbian State Security Service and former employee of the Serbian State Security Service. The Trial Chamber ordered their immediate release. The Prosecution appealed the judgement.
October 5th, 2013 by Ray Barquero
The International Court of Justice (ICJ) announced that it will hold public hearings in the case concerning Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua). The hearings will be held between Monday 14 October and Thursday 17 October 2013, at the Peace Palace in The Hague.
The hearings will be devoted to the request for the indication of new provisional measures that were filed by Costa Rica on 24 September 2013. It is recalled that on 8 March 2011 the Court issued a decision on the request for the indication of provisional measures that was already submitted by Costa Rica, in which it unanimously held that “each party [shall] refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.”
Costa Rica claims that its most recent request is prompted by Nicaragua’s armed forces continued presence on Costa Rica’s territory and explains that it does not seek the modification of the Order of 8 March 2011, but rather that its request “is an independent [one] based on new facts”. Costa Rica contends that, since the Order of 8 March 2011, it has “found out about new and grave activities by Nicaragua in the disputed territory”.
October 5th, 2013 by Reka Hollos
ICC Prosecutor Fatou Bensouda met with representatives from Al-Haq and PCHR (Photo: ICC)
On Thursday, two Palestinian human rights NGOs – Al Haq and the Palestinian Centre for Human Rights (PCHR) – held a meeting with the Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, in the course of which they hand delivered a legal opinion on the scope of the ICC’s jurisdiction over the situation in Palestine. The opinion, which was prepared in conjunction with Dr Michael Kearney at the University of Sussex, urges the Prosecutor to investigate the commission of crimes in the Occupied Palestinian Territories (OPT).
The opinion argues that the ICC has jurisdiction over such crimes by virtue of the declaration submitted by the Palestinian Liberation Organisation (PLO) in January 2009 accepting the jurisdiction of the Court pursuant to Article 12(3) of the Rome Statute. The Article provides that a non-State Party may voluntarily accept the jurisdiction of the ICC by lodging a declaration with the Registrar.
The issue that has divided the international community is whether Palestine is a “State” and therefore whether it is eligible to deposit such a declaration.
In April 2009, then ICC Prosecutor Luis Moreno-Ocampo rejected the declaration as a basis for the Court’s exercise of jurisdiction on the grounds that Palestine was not a State because it only enjoyed observer status within the UN. The Office of the Prosecutor considered that it was for relevant bodies like the UN and the Assembly of States Parties to determine the issue of Palestinian statehood. The Office of the Prosecutor thus subscribed to the constitutive theory of statehood according to which an entity is a state if it is recognised as sovereign by other states.
In November 2012, the UN General Assembly voted in favour of upgrading Palestine’s status as a non-member observer State. The legal opinion submitted by Al-Haq and the Palestinian Centre for Human Rights argues that this move has effectively removed the former Prosecutor’s objections to the ICC’s exercise of jurisdiction.
October 2nd, 2013 by Reka Hollos
The International Criminal Court
For the second time this week, the International Criminal Court (ICC) has unsealed an arrest warrant, this time in connection with the Situation in Kenya. The arrest warrant charges Walter Osapiri Barasa, a Kenyan national, with several offences against the administration of justice contrary to Article 70 of the Rome Statute. In particular, Barasa is alleged to have corruptly influenced or attempted to corruptly influence several Prosecution witnesses by offering to pay them up to 1.4million Kenyan Shillings (almost £10,000 ) to withdraw from the Kenya cases.
Barasa is a former intermediary, or go-between, who assisted the Prosecution with their investigation in Kenya by putting them in contact with victims and potential witnesses. According to the Prosecution, Barasa’s attempts to interfere with Prosecution witnesses
“have escalated both in frequency and seriousness in the period between 20 May and 25 July 2013 making it necessary to proceed to [his] arrest on an urgent basis.”
According to ICC Prosecutor Fatou Bensouda, the evidence against Barasa is “compelling” and points to his continued involvement in a network intended to sabotage the Kenya cases.
If found guilty, Barasa faces 5 years’ imprisonment and/or a fine.
Although Barasa is the first suspect before the ICC to be charged with an offence against the administration of justice, he is not the first intermediary who has caused difficulties for the ICC. In the Court’s first case against Thomas Lubanga Dyilo, proceedings were stayed in July 2010 for three months because the Prosecution refused to comply with a Trial Chamber order requiring it to disclose the identity of an intermediary allegedly involved in witness tampering.