Ethiopia: After Years on the Run, Eshetu Alemu Will Face Trial

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Door-to-door searches by Red Terror Troops to hunt down opposition members

After years on the run to evade justice, a member of former Ethiopian ruler Mengistu Haile Mariam’s Government faces trial for his role in the 1970s genocide in the country.

Eshetu Alemu’s trial began in The Hague on 21 November 2016.

Eshetu Alemu is brought to trial for war crimes committed in Ethiopia during the Mengistu era in Gojjam Province. This case is the result of a year-long investigation. Even if Ethiopia has requested extradition there is no treaty to that effect.

Eshetu Alemu has Ethiopian origin but also holds the Dutch nationality. He was serving as a member of the Provisional Military Administrative Council during the reign of the Derg, the Coordinating Committee of the Armed Forces, Police, and Territorial Army that ruled Ethiopia from 1974 to 1987 and which elected Mengistu Haile Mariam’s as its chairman.

He has already been convicted and sentenced to death in absentia in Ethiopia on December 12, 2006 by the Derg-Tribunal in its 12 years ‘Red Terror’ trials, during which former President Mengistu was also convicted for genocide. Eshetu Alemu was among the dozens of the dreaded council’s members who fled into exile. Continue reading

ECCC: Appeal Judgment Affirms Life Imprisonment for Nuon Chea and Khieu Samphan

Nuon Chea and Kieu Samphan

Kieu Samphan (left) and Nuon Chea

On 23 November 2016, the Supreme Court Chamber (SCC) of the Extraordinary Chambers in the Courts of Cambodia (ECCC) delivered its Appeal Judgment in Case 002/01 against former Khmer Rouge leaders Nuon Chea and Khieu Samphan.

Nuon Chea, former Deputy Secretary of the Communist Party of Kampuchea, and Khieu Samphan, former Head of State of Democratic Kampuchea, were convicted by the Trial Chamber in August 2014 for crimes against humanity committed during the forced evacuation of Phnom Penh in April 1975 and subsequent forced transfer from other areas, as well as alleged execution of former Khmer Republic soldiers in Tuol Po Chrey in Pursat Province.

Both defendants appealed the decision, asking for a reversal of the trial judgment and to be acquitted of all charges, or failing that, Khieu Samphan asked for a reduced sentenced to a set number of years. Nuon Chea submitted 223 grounds of appeal and Khieu Samphan submitted 148 grounds of appeal. Their appeal arguments related to the constitutionality of the ECCC’s Internal Rules and the fairness of the proceedings; the Trial Chamber’s approach to evidence; the Trial Chamber’s findings relevant to the crimes for which the accused were convicted; and the accused’s individual criminal responsibility.

Continue reading

No Trial for Michel Desaedeleer

 

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Diamond miners working, May 15, 2003, in a diamond mine outside Freetown, Sierra Leone ©Getty

Michel Desaedeleer died on September 28th in a Belgian prison. He was accused of being involved in the trade of « blood diamond » in Sierra Leone. He was arrested in Spain in August 2015 due to allegations that he committed a war crime, more precisly the inhuman and degrading treatment of people through his participation in the blood diamond trade with the former Liberian President Charles Taylor and the Revolutionary United Front (rebel group in Sierra Leone involved in the country’s civil war from 1991 until 2002).

There will be no trial for Michel Desaedeleer, even if it was supposed to take place in a near future. The international jurisprudence will thus not see its first trial dealing with crimes allegedly committed in furtherance of natural resource trade. Indeed, Desaedeleer was the first businessman arrested on international charges of pillaging blood diamonds and enslaving civilians and hailed the case as a landmark. As Alain Werner, the Director of Civitas Maxima said in 2015: “This is a landmark case, the first of its kind, and it will help to raise awareness of the pivotal role played by financial actors in the trade of mineral resources that fuel armed conflicts in Africa and elsewhere”.

The case was built against him by Luc Walleyn, lawyer in Brussels, Civitas Maxima in Gevena and the CARL (Center for Accountability and the Rule of Law). The work accomplished until now will still be usefull as the arrest of Michel Desaedeleer, his imprisonment and the beginning of the judicial process represent a victory for the victims who were enslaved.

Letpadaung, Daw Khin Win and Impunity

Sagaing Region ministers have been meeting opponents of the Letpadaung copper mine to discuss a list of grievances, including lingering questions about the death of a protester.

By Vani Sathisan*

Letpadaung Copper Mine

The Letpadaung Copper Mine

“Here is a real bullet, beside a shotgun shell with rubber pellets inside, that were used on the day Daw Khin Win was killed. I kept them as evidence. Why were real bullets used to disperse a crowd that was peacefully protesting?”

A relative of Khin Win put the question to representatives of the International Commission of Jurists during a recent visit to Monywa to monitor the human rights impact of the nearby Letpadaung copper mine.

The bullet displayed by the villager was used in the fatal shooting on December 22, 2014, of Khin Win, a landowner, during a protest against the expansion of the mine. Two other villagers were hurt in the same protest over the seizure of land in 35 nearby villages.

There remains a lack of transparency about whether there has been any credible investigation of villagers’ claims that workers from Wanbao joined forces with police that day to violently disperse the protestors.

Wanbao – a subsidiary of China’s state-owned weapons maker Norinco, which runs the mine in a joint venture with the Union of Myanmar Economic Holdings Limited – restarted production in May. In April, Wanbao released a slick corporate social accountability video called “A New Dawn” to show it had a “social licence” to operate.

However, the ICJ’s discussions with affected communities, including meetings at the Sagaing regional hluttaw and the General Administration Department of the Ministry of Home Affairs, found different sentiments in villages near the project. Grievances in the communities included land grabs, loss of livelihoods and environmental damage. Continue reading

MICT: Stanišić’s Defence Requests Stay of Proceedings

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Jovica Stanišić

This week, the Defence for Jovica Stanišić filed a request in front of the Trial Chamber of the Mechanism for International Criminal Tribunals (MICT) to stay the proceedings until the Prosecution respects the principle of finality and the Appeal Chamber’s order for retrial.

On 31 May 2013, the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) acquitted Jovica Stanišić, formerly Deputy Chief and Chief of the State Security Service (SDB) of the Ministry of Interior of the Republic of Serbia, and his co-accused, Franko Simatović, formerly Deputy Chief of the Second Administration of the Serbian SDB and special advisor in the SDB.

In December 2015, the ICTY Appeals Chamber ordered that they be retried on all counts of the indictment.

In September 2016, the Prosecution filed its Pre-Trial Brief and other pre-trial materials.

In its request, the Defence submits that the Prosecution’s approach to the retrial amounts to ‘’such an egregious violation of the Accused’s rights that it is detrimental to the Court’s integrity, contravenes any sense of justice, and makes a fair trial impossible’’. The Defence submits that the Trial Chamber should stay the proceedings until the Prosecution fully respects the res judicata and non bis in idem principles and the order of the Appeals Chamber for a retrial on the previous Indictment without addition or expansion of the counts or charges. Continue reading

ICC: Gambia to leave the International Criminal Court, following South Africa and Burundi

The Gambia announced on Tuesday that it will withdraw from the International Criminal Court (ICC), following similar announcements earlier this month from South Africa and Burundi.

Gambian Information Minister Sheriff Bojang accused the Court of being “an International Caucasian Court for the persecution and humiliation of people of colour, especially Africans”.

Al Hadji Yahya Jammeh, President of the Republic of the Gambia, addresses the 69th United Nations General Assembly in New York September 25, 2014 ©REUTERS/Lucas Jackson

Al Hadji Yahya Jammeh, President of the Republic of the Gambia, addresses the 69th United Nations General Assembly in New York September 25, 2014 ©REUTERS/Lucas Jackson

He said that the ICC had failed to go after Western war crimes, citing the omission to investigate the European Union over the deaths of migrants on the Mediterranean sea and the ICC’s failure to indict former British Prime Minister Tony Blair for his involvement in the Iraq war.

The withdrawal of the Gambia would be especially painful for the ICC since its chief prosecutor, Ms Fatou Bensouda, is from the Gambia and previously held the post of Gambian justice minister. Other high profile international jurists also come from Gambia, including the International Criminal Tribunal for Rwanda (ICTR) Chief Prosecutor Hassan Bubacar Jallow.

Last week Friday, South Africa announced that it had officially initiated the process of withdrawing from the ICC. South Africa reasoned that its obligations with respect to the peaceful resolution of conflicts were at times “incompatible” with the interpretation given by the ICC of obligations raised in the Rome Statute.

South Africa’s withdrawal followed a controversy last year when it failed to arrest President Omar Al Bashir, who is wanted by the ICC, when he attended an AU summit in South Africa. South Africa’s Supreme Court of Appeals ruled that the government had violated national laws and its international obligations for not having arrested Bashir. Continue reading

Event: Wildlife Justice Commission Public Hearing on 14 & 15 November 2016

Date and time: Monday 14 & Tuesday 15 November, 08:00 – 17:30

Venue: Peace Palace, Carnegieplein 2, The Hague, The Netherlands

wildlife_justice_commissionFollowing a year-long investigation into a major wildlife trafficking hub centred in Nhi Khe, Viet Nam, the Wildlife Justice Commission will hold its first ever Public Hearing on 14 & 15 November 2016 at the Peace Palace in The Hague, the Netherlands.

The hearing will present the findings of the investigation for validation, and experts and witnesses will be heard over two days by an independent, impartial panel of five international experts. The Commission has documented US$ 53.1 million in trade of parts and products of rhinos, elephants, tigers and other endangered species.

The Nhi Khe public hearing is a measure of last resort. Despite exhaustive efforts by the Wildlife Justice Commission encouraging the Vietnamese government to shut down this operation, the more than 50 members of this trafficking ring continue to operate with impunity.

For more information, click here.

If you wish to register, click here. Registration ends on 7 November.

The Wildlife Justice Commission is an innovative justice accountability mechanism for wildlife, which was set up in The Netherlands in March 2015, to ensure that governments and other judicial bodies enforce the rule of law against perpetrators of wildlife crimes.

South Africa to Withdraw from the ICC

International Criminal Court New PremisesSouth Africa has formally begun the process of withdrawing from the International Criminal Court (ICC).

The Rome Statute, under which the ICC was set up, requires the arrest of heads of state for whom a warrant was issued.

The country’s Minister of justice, Michael Masutha, said that South Africa was “hindered” by certain parts of the Rome Statute, primarily the one that “compels South Africa to arrest persons who may enjoy diplomatic immunity under customary international law, who are wanted by the ICC for genocide, crimes against humanity, war crimes, to surrender such persons to the International Criminal Court.”

He said that South Africa wishes to give effect to the rule of customary international law which recognises the diplomatic immunity of heads of state and that the Rome Statute is ”in conflict and inconsistent” with such rule.

Last year, a South African court criticised the government for refusing to arrest Sudan’s President Omar al-Bashir.

Mr Bashir is wanted by the ICC on charges of genocide, war crimes and crimes against humanity over the conflict in the Darfur region.

Mr Bashir was attending an African Union summit in Johannesburg, when the South African government ignored an ICC request to arrest him.

Human Rights Watch has criticised South Africa’s decision.

“South Africa’s proposed withdrawal from the International Criminal Court shows startling disregard for justice from a country long seen as a global leader on accountability for victims of the gravest crimes,” said Dewa Mavhinga, the NGO’s Africa division senior researcher.

“It’s important both for South Africa and the region that this runaway train be slowed down and South Africa’s hard-won legacy of standing with victims of mass atrocities be restored,” Mr Mavhinga said.

A written notice of South Africa’s intention was submitted to the UN secretary general. The withdrawal from the ICC will be formalized one year after the notification. During the 12 months’ notice period, South Africa will remain under the Rome Statute.

Immunities and International Crimes – The Al-Bashir Conundrum

Sudanese President Omar al-Bashir during the 25th AU Summit in South Africa ©KIM LUDBROOK / EPA

Sudanese President Omar al-Bashir

On 13 October 2016, Professor Guénaël Mettraux and Professor John Dugard filed an amicus curiae brief before the Constitutional Court of South Africa In the matter between the Ministry of Justice and Constitutional  Development and the Southern African Litigation Center (“President Al-Bashir case”).

The proceeding are critically important to resolving the tension between a State’s obligation to respect the sovereign immunities of foreign state officials (including heads of states) and that State’s obligation to cooperate with the ICC.

In resolving this tension, Profs Mettraux and Dugard have laid down a series of important principles and effectively mapped a way out of the problem:

1. Immunities and international crimes – A brief historical overview

i. Traditional international law used to grant absolute immunity to heads of state in respect of all acts, commercial and criminal.

ii. Over time, international law started to carve out a number of exceptions to that general and absolutist principle (in particular in respect of commercial acts). This includes an exception to immunities as a defence and/or bar to jurisdiction when faced with international crimes charges (see next).

2. A customary international law exclusion of immunities as a defence and jurisdictional bar to international crimes prosecution

iii. Since at least the end of the Second World War and criminal prosecutions pertaining to that conflict, customary international law excludes the possibility for a Head of State (and other State officials) to rely on his immunity as a defence or as an objection to the jurisdiction of a court before which he appears on charges of international crimes (war crimes; crimes against humanity; or genocide).

iv. This is so whether the jurisdiction seeking to try him is a domestic or an international one. The loss of immunity in such a case is determined, not by the – national or international – character of the tribunal trying such a defendant, but by the international character of the underlying offence with which he is charged.

v. In the context of that exclusionary rule, none of the relevant instruments or relevant incidents of state practice draw a distinction between official and private acts of state officials. All conduct amounting to an international crime are encapsulated into the general exclusionary rule. Nor do these draw a distinction between sitting and former state officials. The exclusion of immunities as a defence and jurisdictional bar is absolute in its effect and pertains to any individual.

vi. Article 27 of the Statute of the ICC recognizes and gives effect to that general principle in the context of proceedings before the ICC. As a jurisdictional provision (dealing with one aspect of the Court’s jurisdiction ratione personae), Article 27 only deals with the effect (or, rather, the absence of effect) of an official position and related immunities on the jurisdiction of the Court itself. It does not regulate, nor purports to regulate, the effect of these immunities on the jurisdiction of any other court. Continue reading

JICJ Call for papers: ICC policies and strategies

To mark 15 years since the coming into force of the Statute of the International Criminal Court (ICC) on 1 July 2002, the Journal of International Criminal Justice has announced a forthcoming symposium on ‘The International Criminal Court’s Policies and Strategies’ to be published in July 2017.

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The Court and its various organs have continually issued a number of documents explaining the Court’s policies on numerous distinct issues as well as its strategies for the future. The Journal’s Editorial Committee believes that the time has come to take a closer and systematic look at these documents, looking at the choices made thus far, the level of transparency and consistency, as well as suggesting avenues to strengthen the overall effectiveness and credibility of ICC investigative and prosecutorial strategies.

The Journal calls for submission of abstracts not exceeding 500 words on the questions described above, or related areas of interest, no later than 15 November 2016. After the abstracts are reviewed, in early December, the Editorial Committee will invite a number of contributors to submit full papers of no more than 8000 words (including an abstract and footnotes) by 28 February 2016. For more information about the call, please visit its webpage or contact the Executive Editor.