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

Amnesty International: ICC is the Key to Break Injustice in Gaza

International Criminal Court

The International Criminal Court

Following Israel’s offensive in Gaza, Amnesty International is urging the UN Security Council, the Palestinian Authority and Israel to do everything within their power to enable the International Criminal Court (ICC) to bring to justice those responsible for committing war crimes and crimes against humanity in the current and past Israeli-Palestinian conflicts.

“An International Criminal Court investigation is crucial to end the pervasive culture of impunity. All sides must push for the Court to investigate such crimes in order to halt the vicious cycle of violations and injustice once and for all”, says Amnesty.

Amnesty asks the Security Council to take immediate steps to refer the situation in Israel and the Occupied Palestinian Territories to the Prosecutor of the ICC. For Amnesty, “the UN Security Council must not stand by yet again and bear witness to mounting atrocities. It must seize this moment to act decisively for justice.”

Amnesty International is also calling on both the Palestinian and Israeli authorities to support a Security Council referral, and take other measures that would allow the ICC to step in and ensure their co-operation with the Court. Continue reading

Legal Scholars’ Joint Declaration on Israel’s Gaza Offensive

Gaza July 2014

Gaza, July 2014

Last week, more than 100 international legal experts and human rights defenders from around the world, among them former UN independent experts and leading law professors, issued a joint declaration denouncing the grave violations and “disrespect of the most basic principles of the laws of armed conflict and of the fundamental rights of the entire Palestinian population” during the ongoing Israeli offensive on the Gaza Strip, and calling for the international community, including the UN, Arab League, EU and the US, to establish clear mechanisms for accountability for international law violations. “Accountability cannot again be sidelined and stigmatized to serve  political  interests, our  interests must  be  the  protection of  civilians and  peace”, says Professor John Dugard, former UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967.

“Once again it is the unarmed civilian population, the ‘protected persons’ under International humanitarian law (IHL), which is in the eye of the storm, victimized in the name of a falsely construed right to self-defence, invoked after an escalation of violence provoked in the face of the entire international community,” says the Joint Declaration.

The declaration denounces the flouting of basic tenets of IHL, including the principle of distinction by which only combatants and military objectives can be targeted, and the principle of proportionality. Indiscriminate attacks against civilians, regardless of the identity of the perpetrators, are not only illegal under international law but also morally intolerable. Continue reading

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