ICC Prosecutor Calls for Immediate Arrest of Saif Al-Islam Gaddafi

Saif al IslamThe Prosecutor of the International Criminal Court (ICC) yesterday called on the Libyan authorities and all other states who are in a position to do so, to immediately arrest and surrender Mr. Saif Al-Islam Gaddafi, the son of former Libyan leader Muammar Gaddafi, to the ICC.

She noted that she was aware of the latest media reports alleging that on 9 June 2017, Mr. Gaddafi was released from the custody of the Abu-Bakr al-Siddiq Brigade of the eastern Libyan town of Zintan, where he had been held since November 2011. The Prosecutor stated that her office is currently verifying these reports and is taking all necessary steps to determine Mr Gaddafi’s whereabouts.

The Prosecutor, Ms. Fatou Bensouda, stressed that the arrest warrant issued by the ICC against Mr Gaddafi on 27 June 2011 for the crimes against humanity of murder and persecution, allegedly committed in Libya during the uprising that ousted his father in 2011, remains valid.

According to Ms. Bensouda, the purported amnesty law, under which Mr. Gaddafi has said to been freed, does not relieve Libya of its obligation to immediately arrest and surrender Mr. Gaddafi to the ICC.

In the same statement, the Prosecutor called for the immediate arrest and surrender of Mr Al-Tuhamy Mohamed Khaled, who is also the subject of an ICC arrest warrant in the Libya situation, made public on 24 April 2017.

Mr. Al-Tuhamy is Muammar Gaddafi’s former security chief and is alleged to be responsible for the crimes against humanity of imprisonment, torture, other inhumane acts, and persecution, as well as for the war crimes of torture, cruel treatment and outrages upon personal dignity, committed in Libya in 2011.

Media outlets report that the release of Saif Al-Islam Gaddafi could fuel further instability in the country, which has been under the rule of three different governments since Muammar Gaddafi’s fall in 2011. The UN-backed Tripoli government condemned the release.

In July 2015, Saif al-Islam Gaddafi was sentenced to death in absentia by a court in Tripoli in a mass trial of former Gaddafi government officials. The verdict had drawn condemnation abroad, with Human Rights Watch saying the trial was riddled with legal flaws and carried out amid widespread lawlessness undermining the credibility of the judiciary.

The International Criminal Court at 15: Battling the Acceptance Challenges

By Francis Dusabe*

International Criminal Court New PremisesIn its 15 years of existence, the International Criminal Court is undergoing an acceptance crisis especially on the African Continent. Political narratives have significantly shaken the Court’s legitimacy and has led to the questioning of its relevance in today’s world.

This paper examines Acceptance challenges faced by the court as of 2017 and explores prospects for change to enhance its social impact.

Introduction

On 17th July 2017, the international Criminal Court will clock 15 years of existence with only 26 cases across 10 situations. To reach where it is, it underwent a series of political condemnations, many of which were based on its operational and political flaws that pushed various State parties to consider quitting.

Whereas its existence symbolizes the global consensus that crimes of concerns to humanity as whole should not go unpunished, the court suffers from strategic flaws which, once unaddressed, will eventually become a turndown to the morale behind the whole project of International Criminal Justice.

This paper looks into the challenges faced by the court as of 2017 and explores prospects for change to ensure that the ICC, once a beacon of hope for Victims of international crimes, remain in existence with tangible social impact. More specifically, it explores the drives behind state acceptance of international criminal justice and the impact of Narratives on the Court’s perception. This paper ends with proposals on how to improve its image as a Court not only for Rome statute State Parties, but as an important arm for maintenance of world peace and security.

State Acceptance of international justice

State’s acceptance of International justice may be looked at on various aspects and may be investigated through various dimensions and factors namely the people concerned, how justice is defined in local context and the Victims’ expectation of what International Criminal Justice can bring. Continue reading

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

Event: The Death Penalty and International Law

the-hague-institute-for-global-justiceDate: Wednesday 5 October 2016, from 18:30 – 20:00.

Venue: The Hague Institute for Global Justice (Sophialaan 10, The Hague).

Speakers:

  • Aaron Matta, Senior Researcher at the Hague Institute for Global Justice, will lead the conversation with:
  • Edward Fitzgerald QC, joint head of Doughty Street Chambers and member of Doughty Street International.
  • Professor Jennifer Trahan, Associate Professor at NYU.
  • Sadakat Kadri, author and barrister at Doughty Street Chambers.
  • Maya Foa, Director of Reprieve’s Death Penalty team.

The panel will debate some topical issues in relation to the (in)consistencies between the death penalty and international (human rights) law, including the use of the mandatory death penalty, the linkage between the International Criminal Court and the death penalty, capital punishment under international and Islamic law, and the use of specific methods of applying the death penalty as cruel and unusual punishment.

In order to register, please click here.

ICC: Jean-Pierre Bemba’s Defence Appeals his Conviction

160621-bemba-sentence-10-1The Defence for Mr. Jean-Pierre Bemba filed an appeal against his conviction for war crimes and crimes against humanity in front of the Appeals Chamber of the International Criminal Court (ICC).

The Defence criticized many of the findings of the Trial Chamber and claimed that the Bemba trial was in fact a mistrial.

The Defence highlighted a vast number of gaps in Mr. Bemba’s right to a fair trial, claiming for instance that the Prosecution was permitted to intercept and listen to telephone conversations between the accused and his lawyers, between the lawyers themselves, and between the lawyers and Defence witnesses.

The Defence also mentioned the vast amount of ex parte access to the Trial Chamber enjoyed by the Prosecution to discuss matters directly relevant to the Judgment itself.

The majority of the appeal, however, is dedicated to the flaws of the Trial Chamber’s findings on effective control, which, according to the Defence, ‘’fall far outside established military doctrine and practice’’ […] and ‘’deprive the Judgement of precedential value in shaping the future actions of commanders.’’

For the Defence, the Trial Chamber, having disregarded the evidence of both the Prosecution and Defence military experts, ‘’invented a theory of command responsibility which is a military impossibility’’ […] and ‘’conflated basic military principles, misunderstood and misapplied established legal doctrine and, most alarmingly, made key factual findings on the basis of no evidence.’’

The Defence adds that other fatal flaws undermine the conviction. The Defence referred to the fact that nearly two thirds of the underlying acts for which Mr. Bemba was convicted were not included or improperly included in the Amended Document Containing the Charges and fall outside the scope of the charges.

The Defence also pointed out that, to convict a person of a crime against humanity, a Trial Chamber must find that he knew that his conduct was part of a widespread attack on a civilian population. However, no such finding was made in this case against Mr. Bemba.

The Prosecution has two months within which to file a response.

In order to read a summary of the Defence Appeal, click here.

ICC: Al Mahdi Sentenced to 9 Years for the Destruction of Historic and Religious Buildings in Mali

Ahmad Al Faqi Al MahdiToday, Trial Chamber VIII of the International Criminal Court (ICC) unanimously convicted Ahmad Al Faqi Al Mahdi of the war crime of attacking historic and religious buildings in Timbuktu, Mali, in June and July 2012. The Court sentenced Al Mahdi to nine years’ imprisonment, deducting the time he has already spent in detention.

On 22 August 2016, at the opening of the trial, Al Madhi had already admitted guilt to the war crime consisting in attacking ten historic and religious monuments in Timbuktu, asking for forgiveness from the people of Timbuktu.

Al Mahdi was a member of Ansar Dine, a movement associated with Al-Qaeda in the Islamic Maghreb (AQIM) which took control of Timbuktu in 2012. As an expert on matters of religion, Al Mahdi was consulted by the leader of Ansar Dine in relation to the decision to destroy the mausoleums.

According to the Trial Chamber, Al Mahdi’s contribution to the destruction of the buildings, consisting of nine UNESCO World Heritage sites, was essential. He had overall responsibility for the execution phase of the attack and directly participated in the attacks on five of the protected buildings.

The Court considered that crimes against property are generally of less gravity than crimes against persons. However, the targeted buildings were not only religious buildings but had also a symbolic and emotional value for the inhabitants of Timbuktu. Continue reading

ICC Prosecutor Will Also Prioritise Environmental Destruction Cases

iccThis week, the Office of the Prosecutor of the International Criminal Court (ICC) published a detailed policy document which provides guidance on how the Office of the Prosecutor exercises its discretion in the selection and prioritisation of cases.

For the first time, the Office said that it would also prioritise crimes that result in the “destruction of the environment”, “exploitation of natural resources” and the “illegal dispossession” of land.

“The Office [of the Prosecutor] will give particular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land”, says the policy paper.

Cambodia seems to be a good example for this new ICC focus as a case has been lodged with the ICC on behalf of 10 Cambodians alleging that the country’s ruling elite, including its government and military, has perpetuated mass rights violations since 2002 in pursuit of wealth and power by grabbing land and forcibly evicting up to 350,000 people.

Broadening the priority cases to include land-grabbing would recognise that mass human rights violations committed during peacetime and in the name of profit could be just as serious as traditional crimes.

Reinhold Gallmetzer, a member of the ICC working group who drew up the policy document, said: “We are exercising our jurisdiction by looking at the broader context in which crimes are committed. We are extending the focus to include Rome statute crimes already in our jurisdiction.”

“Forcible transfer [of people] can already be a crime against humanity, so if it is committed by land-grabbing – whether as a result or a precursor – it can be included.”

First Trial Over Cultural Destruction to Open at the ICC

Ahmad Al Faqi Al MahdiThe trial in the case of The Prosecutor v. Ahmad Al Faqi Al Mahdi is scheduled to open tomorrow at the seat of the International Criminal Court (ICC) in The Hague.

Mr Al Mahdi is an alleged Islamic extremist charged of war crime through his involvement in the intentional destruction of religious buildings in the city of Timbuktu in Mali between about 30 June 2012 and 10 July 2012.

In 2012, Tumbuktu would have been under the control of armed groups, Al Qaeda in the Islamic Maghreb (“AQIM”) and Ansar Eddine, a mainly Tuareg movement associated with AQIM.

The Prosecution alleges that Al Mahdi was linked to those groups. His alleged orders consisted in the destruction of historic buildings including mausoleums and a mosque in Timbuktu. They were specifically identified, chosen and targeted precisely in light and because of their religious and historical character. Their destruction was considered as a serious matter by the local population.

Due to Mr Al Mahdi’s announced intentions to make an admission of guilt, the trial is expected to last for about a week, after which the judges will deliberate and in due course pronounce a decision on the guilt or innocence of the accused and the possible sentence.

If the accused does not plead guilty at the opening of the trial, the hearings will be reported to another date.

This is the ICC first case concerning the destruction of buildings dedicated to religion and historical monuments, which the ICC Prosecutor has called “a callous assault on the dignity and identity of entire populations, and their religious and historical roots”.

Mali’s government asked the Court in 2012 to investigate crimes committed on its territory. Prosecutors opened an investigation in 2013. Mr Al Madhi is the first suspect detained.

A Step Closer to Having the Crime of Agression under the ICC Jurisdiction

1. ilawyer photo - Palestine 30th ratification of the Kampala Amendment… A Step closer to having crime of aggression jurisdiction activated before the ICC

On 26 June 2016, Palestine ratified the amendments to the Rome Statute on the crime of aggression.

By this ratification, Palestine deposited the thirtieth instrument of ratification which opened the possibility of giving jurisdiction to the International Criminal Court (“ICC”) to try the crime of aggression.

Indeed, the provisions of articles 15 bis and ter of the Rome Statute provide that the ICC will not be able to exercise its jurisdiction over this crime until at least thirty States Parties have ratified or accepted the amendments; and a decision is taken by two–thirds of States Parties to activate the jurisdiction at any time after 1 January 2017.  Continue reading