ICC Appeals Chamber Confirms Al-Senussi Case Is Inadmissible

Senussi1

Abdullah Al-Senussi (c) Libya Herald

Yesterday, the Appeals Chamber of the International Criminal Court (ICC) confirmed that the case against Abdullah Al-Senussi is inadmissible.

On 11 October 2013, Pre-Trial Chamber I had declared the case against Mr Al-Senussi inadmissible on the grounds that the Libyan authorities were currently investigating Mr Al-Senussi and that they were willing and able genuinely to carry out domestic proceedings.

In rejecting the defence appeal, the Appeals Chamber held that there were no errors in the findings of the Pre-Trial Chamber that Libya is not unwilling or unable to genuinely prosecute Mr Al-Senussi, or in the exercise of its discretion in the conduct of the proceedings and in the evaluation of the evidence. Judges Usacka and Song appended respective separate opinions agreeing with the conclusion of the majority but formulating their own reasoning on the correct interpretation of the ‘same person, same conduct’ test, which must be satisfied to conclude that a given domestic authority is investigating or prosecuting the same case as that before the ICC.

Mr Al-Senussi held the rank of colonel in the Libyan Armed Forces and served as Muammar Gaddafi’s chief of intelligence before the fall of the regime during the Libyan uprising in 2011. The Prosecution had charged Mr Al-Senussi with murder and persecution as crimes against humanity for his involvement in utilising the State security forces to target the civilian population in an attempt to quell the revolution.

Mr Al-Senussi was charged alongside Muammar Gaddafi (since deceased) and Saif al-Islam Gaddafi. The latter also challenged the admissibility of his case before the ICC but the Appeals Chamber held on that occasion that the case was admissible.

Increasing the Efficiency of the Criminal Process at the International Criminal Court, While Preserving Individual Rights

by Shehzad Charania and John Doyle*

International Criminal Court

The International Criminal Court

In operation for more than a decade, the International Criminal Court is often the subject of criticism for its lengthy trials and inefficient procedures.  The Court has completed three trials in that time, all of which have taken more than six years from the point of arrest to conviction or acquittal.  International criminal justice does, of course, throw up numerous complex challenges not found in domestic proceedings.  But 12 years of practice at the Court have confirmed that unnecessary delays occur in a number of areas, which have the potential to interfere with the rights of the accused, and, more broadly, the perception of the trial process among victims and affected communities, and the public at large.  Finally, delays have financial, logistical as well as other legal implications.

Last week, Sweden, the United Kingdom and Japan convened an all-day seminar, in conjunction with the Hague Institute for Global Justice.  The seminar, entitled “Increasing the Efficiency of the Criminal Process, while Preserving Individual Rights”, and moderated by Professor Håkan Friman, provided a unique opportunity for interaction, and discussion of radical ideas, between representatives of the Court, including over a third of the Court’s Judges, and senior members of the Office of the Prosecutor, the ad hoc tribunals, ICC States Parties, members of the Bar, NGOs and academia. Continue reading

Judge Kaul Resigns from ICC for Health Reasons

Judge-Kaul

Judge Hans-Peter Kaul (c) ICC

Judge Hans-Peter Kaul resigned from the International Criminal Court with effect from today for health reasons. A German national, Judge Kaul served as an ICC judge for 11 years and as the President of the Pre-Trial Division from 2004 to 2009, as well as from 8 April 2014 until his resignation.

During his tenure at the Court, he was involved in proceedings regarding situations in Uganda, the Democratic Republic of the Congo, Darfur (Sudan), the Central African Republic, Kenya, Libya and Côte d’Ivoire. His seminal dissenting opinion to Pre-Trial Chamber II’s Decision to Authorise the Opening of an Investigation in the Situation in Kenya advocating for a stringent state or organisational policy requirement for crimes against humanity garnered much support in academic literature and continues to be discussed today.

ICC President Judge Song expressed regret at Judge Kaul’s resignation:

“I thank Judge Hans-Peter Kaul wholeheartedly for his dedicated service to the Court and his pioneering role in the ICC’s development, even before the Court was established. I worked closely with Judge Kaul, particularly when we were first sworn in together in 2003 and when he served with me in the Presidency as Second Vice-President from 2009 to 2012. I have enormous respect for his deeply humanist personality and his substantial contributions to international justice, which will continue to guide the Court in the future.”

Prior to assuming office at the Court in March 2003, Judge Kaul had a distinguished career in international law. From 2002-2003, he acted as chief negotiator and head of the German delegation in the negotiations that led to the establishment of the ICC. From 1996-2002, he served as the head of the International Law Division of the Federal Foreign Office in Bonn in which capacity he was involved in the seminal La Grand and Legality of the Use of Force cases before the International Court of Justice.

ICC: Germain Katanga Discontinues Appeal

Germain Katanga (c) ICC

Germain Katanga (c) ICC

This Wednesday, Germain Katanga discontinued his appeal against his conviction before the International Criminal Court (ICC). In a letter signed by Katanga and his defence counsel, David Hooper, Katanga stated that he ”accept[ed] the conclusions rendered against [him] in the judgement and [he] express[ed] [his] sincere regrets to all who were affected by [his] conduct, including the victims of Bogoro.”

Katanga had been convicted by a majority of Trial Chamber II on 7 March 2014 of one count of crime against humanity (murder) and four counts of war crimes (murder, attacking a civilian population, destruction of property and pillaging) committed on 24 February 2003 during the attack on the village of Bogoro in the Democratic Republic of the Congo. He was sentenced, again by majority, to 12 years’ imprisonment with credit for the time he has served whilst in detention in The Hague – 7 years to date.

The Prosecutor subsequently informed the Appeals Chamber that she also discontinued her appeal against the judgment and that she does not intend to appeal the sentence imposed on Germain Katanga.

The issue of reparations for victims will be considered next.

Senator Defensor-Santiago Steps Down as ICC Judge

Miriam Defensor Santiago

Miriam Defensor Santiago (c) Rappler

In a resignation letter dated 3 June 2014, Philippine Senator Miriam Defensor-Santiago stepped down as judge of the International Criminal Court (ICC). Writing to ICC President, Judge Song, she stated that she has:

 

“neither secured alleviation nor treatment from the medical profession for [her] illness, known as Chronic Fatigue Syndrome.”

She had been elected to the post in December 2011 following intensive lobbying by the Philippine Government of the international community. She was the first Filipino and first Asian to be elected from a developing country. She was due to take her oath and assume her post in 2012 but postponed due to illness.

Senator Santiago is an international law expert who as chairperson of the Senate Foreign Relations Committee has addressed such issues as the Philippines’ territorial dispute with China over the South China Sea, Russia’s annexation of Crimea and the Philippine-US military agreement.

Lecture: “The ICC in the Chinese Context: Perceptions and Prospects“

Asser InstituteDate: 18 June 2014, 7 p.m.

Venue: T.M.C. Asser Instituut, R.J. Schimmelpennincklaan 20-22, The Hague, The Netherlands

Speaker: Michael Y. Liu, Secretary-General of the Chinese Initiative on International Criminal Justice

Michael Liu is a Civil Party Lawyer in the ECCC and teaches international law at the Royal University of Law and Economics in Cambodia. After working with the ICRC, ICC and ECCC, he created the Chinese Initiative on International Criminal Justice, an independent NGO mandated to promote a better understanding of international law, in particular international criminal law and its judicial process, in the Greater China Region. In this lecture, Mr. Liu will share perceptions of the ICC and international law in China and examine future prospects.

This lecture is public and free of charge. Registration is not necessary, but as space is limited, seats are available on a first-come-first-served basis.

ICC Sentences Germain Katanga to 12 Years’ Imprisonment

Germain Katanga at the ICC today (c) ICC

Germain Katanga (c) ICC

Yesterday, the International Criminal Court (ICC) sentenced Germain Katanga to 12 years’ imprisonment.

Katanga was convicted on 7 March 2014 by a majority of Trial Chamber II of murder as a crime against humanity and the war crimes of murder, attacking a civilian population, destruction of property and pillaging. The majority held that Katanga had contributed to the commission of crimes by the Forces de Résistances Patriotiques en Ituri, an armed group operating in the DRC who carried out an attack against the village of Bogoro on 24 February 2003.

In his summary of the sentencing judgment, Presiding Judge Cotte highlighted the gravity and particular cruelty with which the crimes were committed, resulting in the deaths of numerous civilian victims including women and children. The Chamber considered that the crimes were also clearly committed on a discriminatory basis targeting the mainly ethnic Hema who populated Bogoro village at the time of the attack. Continue reading

Saif Gaddafi Must Be Tried in The Hague

by Miša Zgonec-Rožej*

Seif-al-Islam GaddafiOn 21 May, the Appeals Chamber of the International Criminal Court (ICC) in The Hague rejected Libya’s bid to prosecute Saif Gaddafi domestically and confirmed that he should be tried by the ICC. The ICC’s decision is the correct one and hopefully Libya will comply with it.

According to the Rome Statute, the ICC cannot try a case where the same case is being investigated or prosecuted by a state which has jurisdiction over it, unless the state is unable or unwilling genuinely to carry out the investigation or prosecution. The Appeals Chamber confirmed that Libya had not provided enough evidence to demonstrate that it was investigating the same case as the one before the ICC.

The decision comes as no surprise. The situation in Libya has been in a state of near-anarchy, characterized by lawlessness, insecurity, and an ineffective police and judicial system. UN and human rights organizations report widespread abuses, and the government has been unable to control the militias who continue to exert their influence and pressure on Libyan authorities, including the judiciary. Continue reading

Russia and China Veto Security Council Resolution on Syria Referral to ICC

UN Security Council (c) UN/Evan Schneider

UN Security Council (c) UN/Evan Schneider

Today, at 10h00 New York time, the UN Security Council voted on a draft resolution introduced by France to refer the situation in Syria to the International Criminal Court (ICC). The resolution failed to pass when Russia and China, permanent members of the Council, vetoed the resolution.

Samantha Power, US Ambassador to the UN, in her statement following the vote criticised Russia and China for impeding access to justice for the Syrian people. She also emphasised the importance of holding Russia and China to account:

“While there may be no ICC accountability today, there should be accountability for those members of this Council that have prevented accountability.”

The US agreed to support the resolution after ensuring that Israel would be protected from prosecution before the Court in relation to its occupation of Golan Heights in Syria. Responding to criticisms that the resolution was biased, Power said:

“I agree. [The resolution] was biased in favour of establishing facts, tilted in favour of establishing peace.”

The veto has been called an “endorsement of impunity” by the Lithuanian representative and “disgraceful” by the United Kingdom.

The result is unlikely to come as a surprise following the statement made yesterday by Vitaly Churkin, Russia’s Ambassador to the UN, who called the resolution:

“simply a publicity stunt which will have a detrimental effect, unfortunately, on our joint efforts in trying to resolve politically the crisis in Syria.”

Today’s vote marked the fourth veto of the Syrian situation in the last three years.

Since Syria is not a party to the Rome Statute of the ICC, the Court may only exercise its jurisdiction over the situation if Syria were to accept the jurisdiction of the Court by way of an Article 12(3) declaration or the Security Council were to refer the situation to it.

ICC Appeals Chamber Confirms Admissibility of the Case Against Saif Al-Islam Gaddafi

Saif Al-Islam GaddafiToday, the Appeals Chamber of the International Criminal Court (ICC) delivered its judgment confirming the decision of the ICC Pre-Trial Chamber I declaring admissible the case against Saif Al-Islam Gaddafi. The Appeals Chamber’s judgment was issued by majority, with a separate concurring opinion by Judge Sang-Hyun Song. Judge Anita Ušacka adopted a dissenting opinion.

On 31 May 2013, Pre-Trial Chamber I had rejected Libya’s challenge to the admissibility of the case against Saif Al Islam Gaddafi and reminded Libya of its obligation to surrender the suspect to the Court. Libya appealed this decision on 7 June 2013.

The Appeals Chamber was of the view that the Pre-Trial Chamber did not err in either fact or law when it concluded that Libya had fallen short of substantiating, by means of evidence of a sufficient degree of specificity and probative value, that Libya’s investigation covers the same case that is before the Court.

The Appeals Chamber also rejected Libya’s arguments that the Pre-Trial Chamber had made procedural errors when reaching its decision. On that basis, the Appeals Chamber confirmed the Pre-Trial Chamber’s decision, according to which Saif Al-Islam Gaddafi’s case is admissible before the ICC.