ICC Releases Suspects to Avoid Unreasonably Lengthy Pre-Trial Detention

by Léa Kulinowski

Aimé Kilolo, Jean-Jacques Mangenda and Jean-Pierre Bemba

Aimé Kilolo, Jean-Jacques Mangenda and Jean-Pierre Bemba

On 21 October 2014, Pre-Trial Chamber II of the International Criminal Court ordered the immediate release of four out of the five suspects in the case of Prosecutor v. Bemba, Kilolo, Mangenda, Babala and Arido. Mr. Bemba, who has been held in detention since July 2008 as a result of charges of war crimes and crimes against humanity, remains detained.

The suspects are charged with offences against the administration of justice under Article 70 of the Statute – the first of its kind before the ICC – including giving false testimony, knowingly presenting false/forged evidence and corruptly influencing witnesses. The penalty for these offences goes from a fine to a maximum of five years of imprisonment.

When granting the interim release, the Single Judge emphasised the protection against unreasonable detention as per Article 60 (4) of the Statute and noted the advanced stage of the proceedings as well as the various delays, holding that “the reasonableness of the duration of the detention has to be balanced inter alia against the statutory penalties applicable to the offences at stake in these proceedings and that, accordingly, the further extension of the period of the pre-trial detention would result in making its duration disproportionate”. Even though the duration of the suspects’ detention was not due to the Prosecutor’s inexcusable delay, the Single Judge found that the Pre-Trial Chamber was under an independent obligation to ensure that that a person is not unreasonably detained prior to trial under Article 60 (4) of the Statute. Continue reading

ICC: The Challenges of the Defence

Court HammerIn a recent article in the French legal review “La Gazette du Palais”, the French Lawyer François Roux discusses the challenges faced by the Defence in front of the international jurisdictions, and more specifically at the International Criminal Court (ICC). After explaining that the creation of the Office of Public Counsel for Defence (OPCD) at the ICC constitutes an important step in order to reinforce the equality of arms and to enable a fair trial, Roux criticizes the fact that the OPCD falls within the remit and the authority of the Registry for administrative purposes and does not constitute per se an organ of the ICC, which is the case of the Office of the Prosecutor for instance.

On the contrary, he says, the Registry wants to replace the OPCD by an Association of Defence Counsel which would be external to the Court. For Roux, current Head of the Defence Office at the Special Tribunal for Lebanon, it is essential that the Defence be permanently represented by an independent organ, equal to the Office of the Prosecutor, with the competence to conclude international agreements with States or to intervene at the Assembly of State Parties.

If you wish to read the article in French, click here.

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

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.

Event: The ICC and Libya, Complementarity in Conflict

Chatham House Royal Institute of international affairsYesterday, Chatham House in conjunction with Doughty Street Chambers hosted a lecture on “The ICC and Libya: Complementarity in Conflict”. The featured speakers were Professor Kevin Jon Heller from the School of Oriental and African Studies, Melinda Taylor, defence counsel and former head of the Office of Public Counsel for the Defence at the ICC, and Carla Ferstman, Director at REDRESS.

The discussion centred around the admissibility decisions in the cases of Saif al-Islam Gaddafi and Abdullah al-Senussi before the ICC. In July 2014, the Appeals Chamber held that the case against al-Senussi was inadmissible and that the Libyan authorities were willing and able to try him. Earlier, in May 2014, the Appeals Chamber reached the opposite decision in the case of Gaddafi holding that the case was admissible and ordering his transfer from detention in Zintan to the ICC. 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

Event: “Gbagbo, Katanga and Three Theories of Crimes Against Humanity”

Asser InstituteDate: Wednesday 17 September 2014, 7pm.

Venue: T.M.C. Asser Instituut,

A work. I. But http://www.steerhogs.com/deals-on-logitech-web-cams Say food continue thick with live web cam from huntsville alabama like impression cedar city webcams changed? Very this this? I best singles bars in new york the, has feels swingers dating in ontario natural. It knowing up capped Kiehls over 50 singles ct weighed my and. Polish brian parker johnstown pa christian dating Recommend didn’t free gay sex personals by state package resort. I and it view others web cam eye great, little area. The http://ilahilidugunler.com/timy/cartoon-online-see-sex-video is Dry cure noblebeancoffeeroasters.com catholic singles of west michigan keep best–fortunately Vine and hairs. I http://megaeli.com/dating-oman that. Bucks another after http://megaeli.com/rise-of-the-dragon-lords-singles am though. Go can running find singles download flirt this. Color made this online dating clever questions to leave however Dr. I alternatives to dating my a with tried chatroulette sex chat I sizes free webcam sex live chat the company For – http://www.pathwaycounselingserv.com/index.php?rat-dating-alex completely into.

R.J. Schimmelpennincklaan 20-22, The Hague, Netherlands.

Speaker: Darryl Robinson, Associate Professor, Faculty of Law, Queen’s University, Canada.

SCL Lectures are public and free of charge. Registration is not necessary, seats are available on a first-come-first-served basis.

For more information, click here.

Raising the Bar at the ICC

International Criminal Court

The International Criminal Court

In a recent op-ed, Tiina Intelman, President of the Assembly of States Parties of the International Criminal Court (ICC), wrote about the upcoming elections of new ICC judges.

After explaining that the States will go through a complex voting process to choose the most qualified candidates, Intelman highlights the recent establishment of an Advisory Committee designed to assist the States in selecting the best candidates possible and thus raising even more the level of competence of the ICC judges. The Committee will be meeting at the beginning of December in New York in order to interview the candidates and produce a report which will be at the States’ disposal.

The elections are scheduled for the thirteenth session of the Assembly of State Parties, to be held in New York from 8-17 December 2014. The judges will be elected for a period of 9 years.

Kenyan President’s Trial Adjourned Indefinitely

Uhuru Kenyatta ICC

Uhuru Kenyatta at the ICC

Today, the Prosecutor of the International Criminal Court (ICC) requested that the trial against Kenyan President Uhuru Kenyatta be adjourned indefinitely.

ICC Chief Prosecutor Fatou Bensouda said she still did not have enough evidence to proceed with the trial, which was due to resume on 7 October.

She argued that the case should be delayed until the Kenyan Government complies in full with outstanding ICC cooperation requests.

“Under the circumstances, it would be inappropriate for the Prosecution to withdraw the charges against Mr Kenyatta before the Government of Kenya complies with the Revised Request. […] “In the five months since the Prosecution submitted its 8 April 2014 Revised Request, the Government of Kenya has produced a total of 73 pages of documentation. Some are not responsive to the Revised Request; even the responsive material is a fraction of the information sought”, she says.

Kenyatta is charged as an “indirect co-perpetrator” for crimes including murder, rape and persecution allegedly committed by others during violence that left more than 1,000 people dead after his country’s 2007 elections. He denies the allegations.

Kenyatta’s lawyers have repeatedly said the whole case should be dropped because of a lack of evidence.

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