Latest News and Events

ICTY Association of Defence Counsel Newsletter no. 74

ADC-ICTY-300x300The Association of Defence Counsel Practising Before the ICTY (ADC-ICTY) has published its newsletter no. 75.

This edition covers the recent cases in Prlić et al., the Defence cases in Mladić and Hadžić and the final briefs in Karadžić. In Karadžić, after the Trial Chamber denied the Defence motion to strike the Prosecution’s final brief, the case is now reaching its final stages. The Defence closing arguments will be held from 29 September to 2 October and will be followed by the rebuttal and rejoinder arguments on 7 October, with an expected verdict in October 2015.

The newsletter looks back at various decisions or judgments rendered years ago by the ICC, the ICTR and the ICTY but keeps us up to date as well with the current proceedings in front of the Bosnian Constitutional Court, Croatian courts and the ICC in the Gbagbo case. The newsletter also provides an analysis on the Role and Future of Extremists Groups in the Region in relation to the Islamic State in Iraq and Syria.

Human Rights Defender Executed in Iraq

Samira Saleh Al-Naimi

Samira Saleh Al-Naimi

Last week, the so called Islamic State of Iraq and Al-Sham (ISIS) has executed lawyer and human rights defender Samira Saleh Al-Naimi.

Reports confirmed that on the evening of 22 September 2014, a group of masked armed men who belong to ISIS opened fire and killed her in a public square in the very heart of Mosul, Iraq. She was kidnapped by ISIS from her home last week after she described as “barbaric” the widespread damage that ISIS inflicted on ancient features of her city.

In reaction to this tragic news, the Gulf Centre for Human Rights has condemned in the strongest terms the execution of Samira Saleh Al-Naimi and urged the UN and relevant international institutions to:

1. Carry out an immediate, impartial and thorough investigation into the execution of Samira Saleh Al-Naimi and other crimes committed by ISIS with a view to publishing the results and bringing those responsible to justice in line with local laws and international standards;

2. Guarantee in all circumstances that all human rights defenders and journalists in Iraq are able to carry out their legitimate human rights activities without fear of reprisals and free from all restrictions including judicial harassment.

Samira Saleh Al-Naimi was a prominent lawyer and human rights defender and famous for her activities that include defending detainees and supporting the disadvantaged families in the city.

ICTR Appeals Chamber Delivers Judgements in Three Cases

ICTR

The International Criminal Tribunal for Rwanda

The Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR) today delivered its judgement in three cases: Édouard Karemera and Matthieu Ngirumpatse; Ildéphonse Nizeyimana; and Callixte Nzabonimana.

Édouard Karemera and Matthieu Ngirumpatse

On 21 December 2011, Trial Chamber III convicted Karemera and Ngirumpatse of direct and public incitement to commit genocide, genocide, extermination and rape as crimes against humanity, and murder as a serious violation of Article 3 common to the Geneva Conventions and Additional Protocol II. The Trial Chamber sentenced Karemera and Ngirumpatse to life imprisonment.

The Appeals Chamber affirmed Karemera’s and Ngirumpatse’s convictions.The Appeals Chamber reversed certain findings of the Trial Chamber, which, however, did not result in the overturning of any of Karemera’s or Ngirumpatse’s convictions. The Appeals Chamber affirmed Karemera’s and Ngirumpatse’s sentences of life imprisonment. Continue reading

Kenya President Requests Excusal from ICC Trial

President Kenyatta (c) AP

Kenyan President Uhuru Kenyatta (c) AP

Yesterday, the defence team for Kenyan President Uhuru Kenyatta filed a request before a Trial Chamber of the International Criminal Court (ICC) to excuse the Kenyan President from attending in person a Status Conference scheduled for 8 October 2014. In the “urgent request”, lawyers for Kenyatta explain that his position as President of the East African Community requires him to chair a regional summit in Kampala, Uganda on the day in question. The meeting is to address economic development and regional security issues.

The request was filed pursuant to Rule 134 quater of the ICC’s Rules of Procedure and Evidence, which states that an accused subject to a summons to appear (as President Kenyatta is) may request excusal from attendance at trial when mandated “to fulfil extraordinary public duties.” The Trial Chamber shall grant the request when it considers excusal to be in the interests of justice and provided that the rights of the accused are fully ensured.

The rule is a recent amendment to the Rules of Procedure, which was adopted by the Assembly of States Parties in November 2013 following a request by the African Union.

President Kenyatta is charged with crimes against humanity perpetrated during the post-electoral violence in 2007. The start date of his trial has been postponed on numerous occasions amidst Prosecution complaints that the Kenyan Government has failed to disclose requested documents.

Crimes Against Humanity Trial in Romania

Alexandru Visinescu

Alexandru Visinescu

Today, a former Communist-era prison commander, Alexandru Visinescu, has appeared in a Romanian court accused of crimes against humanity, in the country’s first trial of its kind.

The accused, 88, ran the Ramnicu Sarat prison from 1956 to 1963, where inmates were allegedly tortured and starved.

Mr Visinescu is the first of 35 men whom the Romanian state plans to try for similar offences.

He has denied the charges, saying that he wasn’t responsible for the rules in the prison and followed his superiors’ orders.

The trial has now been adjourned and will resume next month.

Nicknamed “the prison of silence” because detainees were held in solitary confinement, the facility housed intellectuals, dissidents, priests and others deemed enemies of the Communist Party.

Since 2006 the Romania’s state-run Institute for the Investigation of Communist Crimes has been gathering evidence against those responsible by exhuming graves and looking for surviving victims from a number of prisons.

About 500,000 Romanians became political prisoners in the 1950s as the country’s Communist government sought to crush dissent.

Latest Analysis

A (New) New Regional International Criminal Court For Africa?

by Max du Plessis

Advocate of the High Court, Durban and Sandton; Associate Tenant, Doughty Street Chambers, London; Associate Professor, University of KwaZulu-Natal

and

Nicole Fritz

Executive Director, Southern Africa Litigation Centre

I.       INTRODUCTION

Malabo Summit 2014

African Heads of State at the Malabo Summit last June

On June 2014, African Heads of State and Governments meeting in Malabo, Equatorial Guinea, adopted a Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (the ACJHPR Amendment). The ACJHPR Amendment revises the (not yet in force) Protocol on the Statute of the African Court of Justice and Human Rights (ACJHR Protocol) – which was adopted in 2008 to merge the African Court on Human and Peoples’ Rights with the proposed African Court of Justice. The aim of the 2014 ACJHPR Amendment is to grant the resultant Court ‘International Criminal Law’ jurisdiction, adding to the ‘Human Rights’ jurisdiction it presently exercises and the ‘General International Law’ jurisdiction it is expected to exercise when the 2008 ACJHR Protocol comes into effect (whenever that may be). To make matters worse (or better), the ACJHPR Amendment also introduces a change in nomenclature: the new amended, revised African Court will be called the ‘African Court of Justice and Human and Peoples Rights’ (the ACJHPR) (article 8, ACJHPR Amendment).

To give effect to its aims, the 2014 ACJHPR Amendment contains a number of revisions to both the 2008 ACJHR Protocol and the Statute of the Court attached thereto. However, if matters were not already confusing and time-warped, the 2014 ACJHPR Amendment is itself a revised version of an earlier draft, approved by African Ministers of Justice and Attorney General and recommended to the AU Assembly in May 2012 (the ‘2012 Draft Amendment’). The 2012 Draft Amendment was the subject of considerable criticism, including a Comment in this journal by the author (du Plessis, ‘A new regional International Criminal Court for Africa?’, 2 SACJ (2012) 286). In short, general concerns were raised regarding the rushed drafting process and the lack of consultation, and specific concerns were raised as to difficulties surrounding jurisdiction, the definition of crimes, immunities, institutional design and the practicality of administration and enforcement of an expanded jurisdiction, amongst others. Continue reading

The Future of International Criminal Justice is Domestic

by Max du Plessis*

INTRODUCTION

International Criminal Court

The International Criminal Court

Complementarity is certainly posited as a driving feature of the ICC regime. The ICC is expected to act in what is described as a ‘complementary’ relationship with domestic states that are party to the Rome Statute. The Preamble to the Rome Statute says that the ICC’s jurisdiction will be complementary to that of national jurisdictions, and article 17 of the Statute embodies the complementarity principle. At the heart of this principle is the ability to prosecute international criminals in one’s national courts, on behalf of the international community, or to have in place mechanisms to arrest and surrender to the ICC persons that the court seeks to prosecute and who happen to be in one’s jurisdiction.

Linked to the principle of complementarity is the practice of universal jurisdiction.  The ICC does not exercise universal jurisdiction.  But states do, and it is here that the real potential lies for states to act as impunity gap fillers – acting where the ICC is unable or unwilling to do so.

Various developments in Africa suggest a broader understanding of complementarity that is unfolding in practice and which is worthy of further exploration. This broader understanding in certain respects falls within the notion of ‘positive complementarity’, or perhaps better phrased, ‘proactive complementarity’ – a term meaning that the ICC and states should actively encourage genuine national proceedings where possible, and that national and international networks should be relied upon as part of a system of international cooperation. Continue reading

A Wrong Turn for Human Rights

by David Tolbert*

A Palestinian woman reacts upon seeing her destroyed house in Beit Hanoun town

Gaza, August 2014

The world has plunged into a period of brutality, with impunity for the perpetrators of violence. Syria is suffering untold civilian casualties as a divided United Nations Security Council sits on the sidelines. Gaza was pummeled to dust yet again with the world watching on. Iraq is in flames, with no end in sight. Atrocities are mounting in South Sudan and the Central African Republic, which are also being swept by an epidemic of sexual violence. Even Europe is not immune: a civilian aircraft was shot down over a conflict zone in eastern Ukraine, and officials were prevented from investigating.

Twenty-five years after the fall of the Berlin Wall, and more than a decade after the establishment of the International Criminal Court (ICC), shockingly little is being done to stop these abuses, and the prospects of the victims ever getting justice, let alone bringing the perpetrators to account, seem ever more remote.

For many years, the world seemed to be progressing toward greater recognition of human rights and demands for justice. As democracies emerged in Latin America and Central and Eastern Europe in the 1980s and 1990s, these issues assumed increasing importance. Although wars, conflicts, and atrocities continued, the global powers tried, and occasionally managed – albeit chaotically and usually late – to stop the killing. Continue reading

Corporate Criminal Liability for International Crimes & the Alien Tort Statute

James G. Stewart, an assistant professor of law at the University of British Columbia and a former war crimes prosecutor, has published an article entitled “The turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute” in the New York University Journal of International Law and Politics. The full article is available here.

Protesters Seeking to Hold Royal Dutch Shell Liable for Human Rights Abuses ©Minn. J. Int’l L.

Protesters Seeking to Hold Royal Dutch Shell Liable for Human Rights Abuses ©Minn. J. Int’l L.

Abstract: In November 2013, Swiss authorities announced a criminal investigation into one of the world’s largest gold refineries, on the basis that the company committed a war crime. The Swiss investigation comes a matter of months after the US Supreme Court decided in Kiobel that allegations such as these could not give rise to civil liability under the aegis of the Alien Tort Statute (“ATS”). Intriguingly, however, the Swiss case is founded on a much earlier American precedent. In 1909, the U.S. Supreme Court approved the novel practice of prosecuting companies. Unlike the Court’s position in Kiobel a century later, the arguments that ultimately led to the open-armed embrace of corporate criminal liability were unambiguously concerned with impunity. For the U.S. Supreme Court, doing without corporate criminal responsibility would create a significant and highly undesirable regulatory gap. After that, the American fiction that corporations are people for the purposes of criminal law took hold, such that the concept is now relatively ubiquitous globally. Even jurisdictions that bravely held out for decades on philosophical grounds have recently adopted corporate criminal liability. Switzerland is one such case. Continue reading

The Day AU Leaders Justified the Existence of the ICC!

by Arnold Tsunga and Wayne Jordash QC

African leaders

African Union Summit, July 2014

There is a general notion that the law is like a spider’s web. It only catches the weak.

The decision adopted by the AU heads in Malabo, Equatorial Guinea, to grant immunity from prosecution for serious human rights violations to heads of state and senior government officials at the African Court of Justice and Human and Peoples Rights only serves to reinforce this perception.

Heads who faced justice

Few African heads of state have been tried for serious human rights violations of their own people. Those that come to mind are Charles Taylor (Liberia) and Hosni Mubarak (Egypt).  Charles Taylor was tried by a hybrid tribunal set up under the auspices of the UN in Sierra Leone (sitting in The Hague, a city that has become the seat of international justice). After being overthrown in a revolution, Mubarak was tried by domestic courts in what some view as flawed victor’s justice. The AU was not involved in either of these proceedings.

Others await or are going through trial. These are Laurent Gbagbo (Cote D’Ivoire), Omar Hassan Ahmad Al-Bashir (Sudan), Uhuru Kenyatta and his deputy, William Ruto (Kenya) at the ICC, and Hissène Habré (Chad) at an AU sponsored tribunal in Senegal. The Hissène Habré case has been awaiting trial since shortly after the millennium. Legitimate concerns have been raised about the willingness of the AU leaders to see Hissène Habré face justice and the completion of the trial. Omar Hassan Ahmad Al-Bashir has been largely protected by the AU heads that have refused to cooperate with the ICC to effect his warrant of arrest. Continue reading