Expert Initiative on Promoting Effectiveness at the International Criminal Court

International Criminal Court

The International Criminal Court

Yesterday, the Report of the “Expert Initiative on Promoting Effectiveness at the International Criminal Court” was officially launched at an event at The Hague Institute for Global Justice.

The Report was prepared by a group of experts in the field of international criminal law (practitioners and law professors) over a period of eighteen months.

It was supported by the Federal Ministry of Foreign Affairs of Switzerland and made possible by the assistance of the Embassy of Switzerland in The Hague (The Netherlands) and the University of Amsterdam (UvA).

The Report contains an in-depth expert evaluation of the work and performance of the Court in a number of areas of activity relevant to the fulfillment of its mandate. Based on this evaluation and where pressing issues were identified, the Report recommends practical solutions that could be incorporated into the current practices of the Court to better its performance both in the short and long run. The Report provides recommendation not only to the organs of the Court but also to the States Parties and the ASP. Continue reading

United Nations Framework of Analysis for Atrocity Crimes

analyticaltoolThe UN Office for the Prevention of Genocide and the Responsibility to Protect recently released a new Framework of Analysis for Atrocity Crimes. The document provides indicators to identify and assess a range of both common and specific factors that increase the risk or susceptibility of atrocity crimes, which encompass genocide, crimes against humanity, war crimes, and ethnic cleansing. The guide is meant to improve the capacities of international, regional and local actors in understanding the root causes and precursors of these crimes in order to identify measures that can be taken by States and the international community to prevent these crimes. The Office also provides training programmes for UN staff, government officials and civil society in order to assist in developing capacity to analyze and manage information on genocide. war crimes, ethnic cleansing and crimes against humanity.

Mass Atrocity Crimes Database

The Global Action Against Mass Atrocity Crimes (GAAMAC) offers an online database referencing a selection of open-source materials, primarily from the United Nations, governments, and international, regional & civil society organizations, related to the prevention of mass atrocity crimes.

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GAAMAC is a state-led initiative dedicated to the prevention of mass atrocity crimes (war crimes, crimes against humanity, genocide and ethnic cleansing) at the national and regional level. GAAMAC provides support to states engaged in preventing mass atrocity crimes and assists states that are considering developing preventive strategies. GAAMAC also serves as a platform for exchange and dissemination of learning and good practices.

The first international GAAMAC meeting was held in San José in March 2014 and gathered state representatives around the need of a “Community of Commitment, Community of Practice”.

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

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

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.

Corporate Criminal Liability for International Crimes & the Alien Tort Statute

James G. Stewart, an assistant professor of law at the University of British Columbia and a former war crimes prosecutor, has published an article entitled “The turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute” in the New York University Journal of International Law and Politics. The full article is available here.

Protesters Seeking to Hold Royal Dutch Shell Liable for Human Rights Abuses ©Minn. J. Int’l L.

Protesters Seeking to Hold Royal Dutch Shell Liable for Human Rights Abuses ©Minn. J. Int’l L.

Abstract: In November 2013, Swiss authorities announced a criminal investigation into one of the world’s largest gold refineries, on the basis that the company committed a war crime. The Swiss investigation comes a matter of months after the US Supreme Court decided in Kiobel that allegations such as these could not give rise to civil liability under the aegis of the Alien Tort Statute (“ATS”). Intriguingly, however, the Swiss case is founded on a much earlier American precedent. In 1909, the U.S. Supreme Court approved the novel practice of prosecuting companies. Unlike the Court’s position in Kiobel a century later, the arguments that ultimately led to the open-armed embrace of corporate criminal liability were unambiguously concerned with impunity. For the U.S. Supreme Court, doing without corporate criminal responsibility would create a significant and highly undesirable regulatory gap. After that, the American fiction that corporations are people for the purposes of criminal law took hold, such that the concept is now relatively ubiquitous globally. Even jurisdictions that bravely held out for decades on philosophical grounds have recently adopted corporate criminal liability. Switzerland is one such case. Continue reading

Fair Trials International New Training Programme

flagFair Trials International is organising a Practitioner Training Course for lawyers from Germany, Austria, Czech Republic, Slovakia and Poland on fair trial rights in criminal proceedings in partnership with the Helsinki Foundation for Human Rights. The course on “the EU directives on fair trial rights in criminal proceedings” will be held in Warsaw,

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Poland, from 21st to 23rd November 2014.

Venue: Westin Hotel, Warsaw, Poland

Dates: 21-23 November 2014

Language: English

For Lawyers from: Germany, Austria, Czech Republic, Slovakia, Poland

Application deadline: 12 September 2014

Cost: There is no charge for the training.

The application form is available here. To apply or for more information, send an email or visit Fair Trials’ Website.

Launch of an Online Forum on the Extraordinary African Chambers

Chambres Africaines ExtraordinairesAn interactive forum on the Extraordinary African Chambers (CAE) has been launched online.

This forum was chosen to bring information on the proceedings following the agreement between the African Union and Senegal to prosecute “those primarily responsible for international crimes committed in Chad between 1982 and 1990” to the attention of people in Senegal, Chad, Africa and throughout the world.

Since the beginning of 2014, an outreach campaign has made it easier for people in Chad and Senegal to access information through meetings, public debates and information workshops taking place in the capital and in the provinces. These events involve the general public, CAE members, administrative and judicial authorities of Chad and Senegal, lawyers, victims, researchers, the media and civil society. The campaign also aims to encourage debate around the contribution of the CAE in the framework of international criminal justice. Continue reading

STL Does Not Have Jurisdiction for Contempt Cases Against Legal Persons

Special Tribunal for Lebanon

Last week, the Contempt Judge Nicola Lettieri issued a Decision on a Motion Challenging the Special Tribunal for Lebanon’s jurisdiction. The motion was submitted by the Defence for NEW TV S.A.L and Karma Hohamed Tahsin Al Khayat and questioned whether the Tribunal could hear cases of contempt and obstructions against the proper administration of justice by legal persons (i.e. corporate entities).

The Contempt Judge ruled that although the Special Tribunal for Lebanon (STL) does not have jurisdiction to hear cases dealing with obstructions of justice against legal persons, it does retain jurisdiction to hear cases dealing with offences against the administration of justice against natural persons. This was held to be consistent not only with international case law, but also with Rule 60bis of the STL’s Rules of Procedure and Evidence.

Last year, information relating to confidential witnesses has been broadcasted in certain medias.

Following these events, the Registrar of the Tribunal appointed an amicus curiae. Based on reports by the amicus, the Contempt Judge concluded that there was prima facie evidence that justified proceedings for contempt.

Two journalists and two media organisations have been subsequently charged with contempt before the Tribunal.