UNESCO and ICC Join Forces to End Impunity for Destruction of Cultural Heritage

Tumbuktu Mausoleum Ruins

The ruins of a Mausoleum in Tumbuktu

Today, the Director-General of the UN Educational, Scientific and Cultural Organization (UNESCO), Irina Bokova, met with the President of the International Criminal Court (ICC), Silvia Fernandez de Gurmandi, and Deputy Prosecutor James Stewart, to explore ways to deepen cooperation on the protection of cultural heritage and the fight against impunity of war crimes.

“UNESCO and ICC have come a long way together, to strengthen the rule of law, to change the mindset about the destruction of cultural heritage, and we are determined to go further, to end impunity for deliberate destruction of cultural heritage,” said Ms. Bokova.

Immediately after the attacks on the people and heritage of Mali, UNESCO raised the issue of the destruction of the mausoleums to the attention of the Court.

On 1 July, 2012, ICC Prosecutor Fatou Bensouda declared that this destruction constituted a war crime under the Rome Statute and then launched a preliminary examination into the violence that had been engulfing the country since January 2012.

The first suspect, Ahmed al-Faqi al-Mahdi, was transferred by the authorities of Mali and Niger to The Hague on 26 September 2015. His trial is scheduled to start on 22 August 2016.

The case of Mali made history in the fight against impunity – recognizing the restoration of justice and the rule of law as an essential step of any recovery process. This sets a historic precedent for similar cases in the future.

In this spirit, UNESCO and the ICC are sharing expertise and information about the importance of the sites, about why they were inscribed on the UNESCO World Heritage List, and the reason why their deliberate destruction can be considered a war crime.

The Trial for the ICC’s First Contempt Case Closes

by Rita Yip

Jean-Pierre Bemba GomboOn Tuesday 31 May 2016, the closing statements in the first contempt case tried before the International Criminal Court (ICC), The Prosecutor v. Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido, will be made publicly and are expected to last three days.

Jean-Pierre Bemba Gombo – the former vice-president of the Democratic Republic of Congo – and four other accused are charged for offences against the administration of justice under Article 70 of the Rome Statute. The Prosecution alleges that the accused collectively engaged in a scheme to corruptly influence, illicitly coach and bribe fourteen defence witnesses for false testimony during the trial of The Prosecutor v. Jean-Pierre Bemba Gombo between 2011 -2013.

The five accused were arrested in November 2013 and were detained at the United Nations Detention Unit in The Hague for almost one year. On 21 October 2014, the Pre-Trial Chamber granted interim release to the four accused – except Jean-Pierre Bemba Gombo, who remained in custody since 2008.

The trial hearings before the Trial Chamber VII commenced on 29 September 2015. The Prosecution called 13 witnesses and the five Defence teams collectively called six witnesses, including experts in the field of audio recordings, Austrian law and African solidarity.

The closing statements are expected to last three days. The Prosecution and the Defence teams will present its arguments and respond to the others parties’ arguments articulated in their closing submissions filed on 24 May 2016. Two of the accused – Aimé Kilolo Musamba, Jean-Pierre Bemba Gombo’s former Defence Lead counsel and Fidèle Babala Wanda, Jean-Pierre Bemba Gombo’s political associate, have been granted the request to give an unsworn statement during the closing statements.

Earlier this year, on 21 March 2016, Jean-Pierre Bemba was found guilty of two counts of crimes against humanity (murder and rape) and three counts of war crimes (murder, rape and pillaging) for crimes that were committed in Central African Republic in 2002 and 2003.

Event: ICC Performance Indicators – Debriefing on the Glion Retreat

International Criminal Court New PremisesDate: Tuesday, 24 May, 17:00 – 18:30

Venue: The Hague Institute for Global Justice, Sophialaan 10, 2514 JR The Hague

In partnership with the Embassy of Switzerland to the Netherlands, The Hague Institute for Global Justice will host a debriefing on the International Criminal Court Retreat on Performance Indicators which took place in Glion, Switzerland, at the beginning of April. The aim of this debriefing is to share the objectives and outcomes of the retreat with a broader public and to generate a valuable discussion on the topic of performance indicators.

In 2014, the Assembly of States Parties to the Rome Statute requested the ICC to “intensify its efforts to develop qualitative and quantitative indicators that would allow the Court to demonstrate better its achievements and needs, as well as allowing States Parties to assess the Court’s performance in a more strategic manner”.

It reaffirmed its interest in the following year.  To assist the Court in this complex exercise, the Federal Department of Foreign Affairs of Switzerland, in cooperation with the ICC and the Open Society Justice Initiative, hosted an informal retreat in Glion, Switzerland, on 6-8 April 2016.

The discussion was based on the 2015 Report of the Court on the development of performance indicators.

Speakers:

  • Ms. Silvia Fernández de Gurmendi – Judge, President of the International Criminal Court
  • Mr. Jürg Lindenmann – Ambassador, Deputy Director of the Swiss Directorate of International Law
  • Mr. James Goldston – Executive Director of the Open Society Justice Initiative
  • Moderator: Mr. Lyal Sunga – Head of the Rule of Law Program, The Hague Institute for Global Justice

If you wish to register, click here.

Event: Legal Diversity and the Universal Vocation of International Law

Court HammerDate: 2 June, 2016 – 9:30 to 17:00

Venue: Schouwburgstraat 2, 2511 VA Den Haag, Netherlands

McGill University’s Faculty of Law and the Grotius Centre for International Legal Studies, Leiden University, invite you to a one-day Symposium on the theme of legal diversity and the theory and practice of contemporary international law.

The speakers will be:

  • The Ambassador of Canada to the Netherlands, H.E. Sabine Nölke
  • Professor Daniel Jutras, Dean, Faculty of Law, McGill University
  • Judge Hisashi Owada, International Court of Justice
  • Hans van Loon, former Secretary General, Hague Conference on Private International Law
  • Alex Mills, Reader in Public and Private International Law, Faculty of Laws, UCL
  • Norman Farrell, Prosecutor, Special Tribunal for Lebanon
  • Justice David Baragwanath, Special Tribunal for Lebanon
  • James Stewart, Deputy Prosecutor, International Criminal Court
  • Justice Bertram Schmitt, International Criminal Court
  • Payam Akhavan, Associate Professor, McGill University Faculty of Law (and Counsel at PCA, ICJ, ECtHR, ITLS, ICC, ICTY)
  • Silke Studzinsky, Trust Fund for Victims, International Criminal Court (previously Extraordinary Chambers in the Courts of Cambodia (ECCC))
  • Sergey Vasiliev, Assistant Professor in Public International Law, Grotius Centre, Leiden University

The speakers will be asked to address one or more of the following themes:

  • Legal pluralism, legal diversity and international law: retrospective and prospective views; experiences from the practice of various Hague legal institutions; traditions of multiculturalism and legal pluralism (including the McGill Law Faculty educational method);
  • Human rights, peremptory norms, international legal standards and legal /cultural diversity;
  • “Cosmopolitan attitudes, methods & officials” in the practice of international law;
  • “Harmonious coexistence rather than obligatory universality” & universality through diversity;
  • The enrichment of international law through principles and approaches of diverse traditions / legal systems ;
  • Envisioning future pathways for international law / institutions in the light of global legal diversity.

Conference proceedings will be inspired in part by the works of the late Professors Patrick Glenn and Roderick Macdonald of McGill University, Faculty of Law, including their study of legal traditions of the world and legal pluralism, interlinked with Canadian traditions of multiculturalism.

For registration or additional information please email: events.grotius@cdh.leidenuniv.nl

The Ambassador of Canada, H.E. Sabine Nölke, will host a post-conference reception that evening, at the Canadian Official Residence (Groot Haesebroekseweg 44, Wassenaar), from 18:30 to 20:30.

ICC Judges Authorize Investigation Into Georgia’s 2008 War

Georgian Troops South Ossetia 2008

Georgian Troops in South Ossetia in 2008

Today, Pre-Trial Chamber I of the International Criminal Court (ICC) authorised the Prosecutor to proceed with an investigation for war crimes and crimes against humanity allegedly committed in and around South Ossetia, Georgia, between 1 July and 10 October 2008.

On 13 October 2015, the ICC Prosecutor submitted her “Request for authorisation of an investigation pursuant to article 15” of the Rome Statute, asking for authorization from Pre-Trial Chamber I to proceed with an investigation into the situation in Georgia.

After examining the request and the supporting material, the Chamber concluded that there is a reasonable basis to believe that crimes within the ICC’s jurisdiction have been committed in the situation in Georgia.

Such crimes include crimes against humanity, such as murder, forcible transfer of population and persecution, and war crimes, such as attacks against the civilian population, wilful killing, intentionally directing attacks against peacekeepers, destruction of property and pillaging allegedly committed in the context of an international armed conflict between 1 July and 10 October 2008.

The Chamber also found that potential cases arising out of the situation would be admissible before the Court and that there are no substantial reasons to believe that an investigation would not serve the interests of justice taking into account the gravity of the crimes and the interests of victims.

In a statement following the Pre-Trial Chamber’s decision, the ICC Prosecutor, Fatou Bensouda, said that the timing of the Prosecution request for authorization of an investigation into the situation in Georgia was determined by the pace, and eventually, lack of national proceedings. Until recently, the competent national authorities of both Georgia and Russia were engaged in conducting investigations. However, last year, relevant national proceedings in Georgia were indefinitely suspended, which led to the Prosecution’s request for authorization to investigate.

The Office of the Prosecutor continues to monitor relevant proceedings in Russia, which are still on-going.

ICC: Dismissal of Prosecutor’s Appeal Against Decision Requiring Review of the Mavi Marmara Case

marmara_donuyor_boyutlar.fh11

The Mavi Marmara was the lead ship in a eight-vessel humanitarian convoy heading for Gaza.

Today the Appeals Chamber of the International Criminal Court (ICC) decided by majority to dismiss, in limine and without discussing its merits, the Prosecutor’s appeal against the decision of Pre-Trial Chamber I requesting the Prosecutor to reconsider the decision not to initiate an investigation into the situation referred to her by the Union of the Comoros with regard to “the 31 May 2010 Israeli raid on the Humanitarian Aid Flotilla bound for Gaza Strip”.

The Appeals Chamber found that, contrary to what the Prosecutor had submitted, the decision of Pre-Trial Chamber I was not one “with respect to […] admissibility” within the meaning of article 82 (1) (a) of the Rome Statute. The Prosecutor’s appeal was therefore inadmissible. As a part of its reasoning, the Appeals Chamber considered that to allow the Prosecutor’s appeal to be heard would rupture the scheme for judicial review of the Prosecutor’s decisions as explicitly set out in article 53 of the Statute, introducing an additional layer of review by the Appeals Chamber that lacks any statutory basis.

The Appeals Chamber’s decision was adopted by a majority composed of Judges Sanji Mmasenono Monageng, Howard Morrison and Piotr Hofmański. Judges Silvia Fernández de Gurmendi and Christine Van den Wyngaert appended a joint dissenting opinion on the admissibility of the Prosecutor’s appeal, concluding that they would declare the appeal to be admissible, without prejudice to their subsequent consideration of its merits. Continue reading

How Africa Can Fix the International Criminal Court

By John Dugard*

ICCThe ruling African National Congress’s demand that the South African government should pull out of the International Criminal Court is defeatist, naïve and reactionary. African states have largely themselves to blame for the fact that the continent has been singled out by the court, and rather than withdraw they should use their political muscle to ensure that prosecutions are brought against non-African leaders too.

Africa occupies a key position in the International Criminal Court (ICC). It is the largest regional group with 34 member states; the present prosecutor of the court is an African woman – Fatou Bensouda of The Gambia – and four of the 18 judges on the court are from Africa, including the vice-president, Joyce Aluoch of Kenya. Africa is not therefore a marginal player in the ICC.

Despite this the ICC is more criticised in Africa than any other continent. In large measure this criticism comes from the leaders of non-member states, such as Zimbabwean President Robert Mugabe and Sudanese President Omar al-Bashir, who are themselves accused of committing international crimes.

But the leaders of member states, whose judges serve or have served on the court, have given support to the criticism and condemnation of the court. Perhaps the three most vocal leaders of this group are Kenyan President Uhuru Kenyatta, Ugandan President Yoweri Museveni and South African President Jacob Zuma. Continue reading

ICC to Open Investigation Into Russia-Georgia Conflict

Russia Georgia 2008 ConflictOn 13 October 2015, the Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, requested the judges of Pre-Trial Chamber I of the Court for authorisation to open an investigation into the alleged war crimes and crimes against humanity in relation to the August 2008 armed conflict in Georgia.

The situation in Georgia has been under preliminary examination by the Office of the Prosecutor since August 2008, when armed clashes between South Ossetian separatists, supported by Russia, and Georgian forces turned into an armed conflict.

While Russia is non-member state after signing, but not ratifying, the Rome Statute, Georgia became a member of the ICC in 2003, providing the ICC with jurisdiction over Rome Statute crimes committed on its territory from 2003 onwards.

The Prosecutor found a reasonable basis to believe that war crimes and crimes against humanity were committed in the context of the armed conflict. This includes alleged crimes committed as part of a campaign to expel ethnic Georgians from South Ossetia as well as attacks on peacekeepers by Georgian forces, on the one hand, and South Ossetian forces, on the other.

According to the Prosecutor between 51 and 113 ethnic Georgian civilians were killed as part of a forcible displacement campaign conducted by South Ossetia’s de facto authorities, with the possible participation of members of the Russian armed forces. Between 13,400 and 18,500 ethnic Georgians were forcibly displaced and more than 5,000 dwellings belonging to ethnic Georgians were reportedly destroyed as part of this campaign.

Until recently, the competent national authorities of both Russia and Georgia were engaged in conducting investigations against those who appeared to be most responsible for crimes which are the subject of this application. However, more recently, national proceedings in Georgia have stalled, thereby making the potential case admissible due to State inaction. Some investigations may nevertheless be underway in Russia, meaning that the ICC might not have full jurisdiction over crimes covered by those probes.

If the Pre-Trial Chamber authorises the Prosecutor to open the investigation, this would be the first ICC investigation that is not involving an African country. The request comes amid plans of South Africa to leave the International Criminal Court which sparked fears that this might lead to a broader African withdrawal.

However, it is argued that the Prosecutor’s decision to move forward on Georgia is not made in light of a prosecution strategy to move cases out of Africa, but that after seven years the case simply demanded to be taken forward.

What South Africa Leaving the International Criminal Court Would Mean

By Milton Nkosi*

International Criminal CourtThe call by South Africa’s governing party to withdraw from the International Criminal Court (ICC) has implications for the rest of the continent. But it is not going to happen any time soon.

When South Africa joined the ICC in 1998 the country had just emerged from the scourge of apartheid.

South Africans were fresh victims of gross human rights violations and had hoped that the rest of the world would join the ICC.

But some of the most powerful countries did not follow.

And now the governing African National Congress (ANC) is calling for the country to leave the ICC – which would make it the first to do so.

‘Hitler of Africa’?

The chairman of the ANC’s commission on international relations, Obed Bapela, said that the ICC had “lost direction”.

Mr Bashir was able to fly out of South Africa in June despite a warrant for his arrest for war crimes

This move away from the ICC comes not long after the South African government was criticised for allowing Sudan’s President Omar al-Bashir to leave the country despite an ICC arrest warrant for alleged war crimes in Darfur. Mr Bashir denies the allegations, saying they are politically motivated.

Mr Bapela insisted South Africans were “very keen” to hear the stories of the victims of Darfur, as they had heard the victims of political crimes committed during the apartheid era at the Truth and Reconciliation Commission.

“Human rights matter to us but we want a fair system,” he said. Continue reading

South Africa Plans to Leave the International Criminal Court

South African ParliamentThe African National Congress (ANC), South Africa’s governing political party, wants the country to begin the process of withdrawing from the International Criminal Court (ICC) because it believes the ICC has lost its direction.

“The principles that led us to be members [of the ICC] remain valid and relevant […] however the ICC has lost its direction unfortunately and is no longer pursuing that principle of an instrument that is fair for everybody,” said on Sunday the party’s international relations subcommittee chairperson Obed Bapela.

There were a handful of powerful countries which refused to be ICC members, yet they still had the power to refer matters to the court, Bapela said.

He added that South Africa would continue to carry the flag of human rights and an end to genocide.

The matter is already on the agenda for the upcoming Assembly of State Parties meeting which would be attended by all ICC members in November. It will also be tabled at the African Union summit to be held in January.

This debate arose as the South African government faces criticism for ignoring a South African High Court order to arrest Sudan’s President Omar al-Bashir when he was in Johannesburg for an African Union summit last June.

The ICC had issued a warrant of arrest for Bashir, wanting him to stand trial on charges of war crimes and genocide.

The High Court ruled that government had acted unconstitutionally when it did not arrest him.