In this week’s review, news about Bemba’s acquittal, MICT Prosecutor Serge Brammertz’s address to the UN Security Council, the schedule for Ongwen’s defence case, potential war crimes in Syria, Syrian torture complaint filed under universal jurisdiction, approval for the Central African Republic Special Tribunal and more:
Amnesty International report alleges US bombings in Syria constitute war crimes
Following an onsite investigation, Amnesty International released a report: “War of annihilation’: Devastating Toll on Civilians, Raqqa – Syria” alleging that the four-month-long military operation carried out by the US-led Coalition constitutes war crimes and violates international humanitarian law. The report relies on its findings from site visits in 42 affected areas in Raqqa city and statements of 112 interviewed civilians to reach its conclusions. The US-led strikes carried out between 6 June and 17 October 2017 had the objective of ousting ISIS from the Raqqa region. They reportedly resulted in many civilian casualties, destruction of civilian property and infrastructure. Amnesty International alleges in the report that the strikes are a part of a wider pattern and the indiscriminate attacks violate the long-established principle of distinction and as such violate international humanitarian law. The report alleges that the number of casualties was magnified as a result of the use of explosive weapons, including the US-admitted 30, 000 artillery fired in populated areas. It urged the coalition members, i.e. the US, UK, and France to investigate the alleged crimes and encouraged these countries to publicly acknowledge the extent of civilian casualties and destruction of civilian property. (Amnesty International Report, Reuters)
ICC Appeals Chamber Judgment acquits Bemba of war crimes and crimes against humanity
On 8 June, the Appeal Chamber of the International Criminal Court issued its appeal judgment in the main case against Jean-Pierre Bemba Gombo. On 21 March 2016, Trial Chamber III issued its judgment finding Bemba criminally responsible for crimes against humanity and war crimes including murder, rape, and pillaging which were committed by Mouvement de libération du Congo (MLC) troops in the Central African Republic from October 2002 to March 2003. The Trial Chamber concluded that as a military commander he had effective control over MLC troops and was therefore responsible for the crimes under article 28(1) of the Rome Statute. The Appeals Chamber Judgment reversed this decision based on several identified errors in the Trial Chamber’s judgment, including that (1) the Trial Chamber erred in convicting Bemba for actions that were outside the scope of the confirmed charges against him; (2) the Trial Chamber erred in its analysis of Bemba’s actions to prevent, repress or punish the crimes committed; (3) the Trial Chamber erred in considering Bemba’s motivation and the limitation he faced to address the crimes committed by subordinate in light of his position as a remote commander.
The Judgment was issued by a majority of the Chamber with Judge Christine Van den Wyngaert presiding, and Judge Chile Eboe-Osuji, Judge Van den Wyngaert and Judge Howard Morrison including separate opinions. Judge Sanji Mmasenono Monageng and Judge Piotr Hofmański included a joint dissenting opinion which took the position that all crimes Bemba was convicted for before the Trial Chamber were within the scope of the case, and that Bemba failed to take all necessary and reasonable measures to prevent or repress the crimes committed. Although acquitted of the charges in the main case against him, Bemba’s conviction in the contempt case for offences against the administration of justice remain and his detention will continue based on this conviction. (ICC Press Release, AC Judgment)
MICT Prosecutor addresses UN Security Council
Serge Brammertz, the Prosecutor of the International Residual Mechanism for Criminal Tribunals (MICT) addressed the UN Security Council on 6 June, updating it on the anticipated schedule for the completion of judicial proceedings in The Hague. He stated that only three cases remain before the MICT, with the Karadzic appeal scheduled to be completed in 2018, and the Stanisic and Simatovic trial and Mladic appeal to be completed in 2020. Brammertz also described efforts to locate the eight remaining fugitives indicted by the ICTR and the ongoing search for missing persons in the former Yugoslavia. (MICT Press Release)
ICC Trial Chamber issues scheduling order on Ongwen Defence opening statements and presentation of evidence
In the case against Dominic Ongwen at the International Criminal Court, Trial Chamber IX set the date for the commencement of the Defence’s presentation of evidence. It ordered the Defence to make its opening statement on 18 September, and held that the first block for the Defence presentation of evidence will run from 27 September to 10 October 2018. (ICC TC Order)
Lebanon tribunal decision on Prosecution reconsideration request on admitted evidence
In the main case before the Special Tribunal for Lebanon, Prosecutor v. Ayyash et al., the Trial Chamber issued a decision clarifying its previous decision to admit six documents into evidence related to Mr Ahmed Abu Adass. The documents, which relate to the failed recruitment of Mr Abu Adass to participate in a video falsely claiming responsibility for the attack on former Lebanese Prime Minister Rafik Hariri, allegedly demonstrate that Mr Abu Adass was not selected at random, but was targeted as someone who held extremist beliefs and ties. The Prosecution sought reconsideration of the decision on the grounds that two of the exhibits constituted witness statements tendered over the Prosecution’s objection, but the Trial Chamber disagreed, finding that one document was an investigative summary, and that the other had not been admitted for the truth of its contents. (STL TC Decision)
Trial Chamber rejects Prosecution filing on conduct of Ble Goude Defence team member
In the case against Laurent Gbagbo and Charles Ble Goude at the International Criminal Court, Trial Chamber I issued a decision regarding the conduct of a member of the Ble Goude Defence team. The Prosecution had informed the Trial Chamber that a member of the Defence team made public comments on the merits of the evidence presented during the Prosecution’s case, including on the credibility and reliability of witnesses, and argued that this risked prejudicing the proceedings. Noting that the Prosecution request was filed more than a year after the incident, Trial Chamber I held that there was no indication that the proceedings had been affected, and rejected the Prosecution’s invitation to remind counsel of their duties toward the Court. (ICC Trial Chamber Decision)
Universal jurisdiction complaint against Syrian officials submitted in Austria by torture victims
On 29 May, 16 Syrian men and women filed a criminal complaint in Austria against 24 senior officials in the Syrian government for war crimes and crimes against humanity. The constituent acts – including murder, torture, serious bodily harm and deprivation of liberty – were allegedly committed against the complainants while they were detained across 13 detention centers in Damascus, Daraa, Hama and Aleppo. The officials worked for the military intelligence, air force intelligence and general intelligence services of the Syrian government. One of the complainants is Austrian and two were minors at the relevant time. The complaint was filed pursuant to Austria’s universal jurisdiction for war crimes and crimes against humanity. (Middle East Monitor, ECCHR)
Bangladesh urged to support ICC investigation in Myanmar
Speaking at a conference in Dhaka on 4 June 2018, Bangladeshi and international experts called for the International Criminal Court (ICC) to conduct an investigation into Myanmar’s alleged crimes against Rohingya Muslims. They urged the Government of Bangladesh to make submissions to the ICC and assist the court in building pressure on Myanmar. The session, titled “Accountability: ICC and the Rohingya Crisis,” was organised by the Centre for Genocide Studies of Dhaka University (DU), the Centre for Peace and Justice of Brac University and ActionAid Bangladesh. Bangladesh is a state party to the Rome Statute, while Myanmar is not, which has created issues around whether the ICC has jurisdiction over the situation. Justice Syed Refaat Ahmed of the High Court said that the ICC had jurisdiction over crimes which commenced in one jurisdiction and finished in another. He said that the cross-border crime of ‘deportation’ was committed against the Rohingyas who were intentionally and forcibly sent to Bangladeshi territory. Since August 2017, over 670,000 Rohingya Muslims have fled Rhakine State in order to escape what Human Rights Watch has called a large-scale campaign of ethnic cleansing by the Myanmar military. (The Daily Star)
CAR Special Criminal Court approved by Government
The Central African Republic (CAR) has approved a law which establishes a special criminal court to investigate allegations of war crimes and crimes against humanity committed in the country between 2003 and 2015. Rights activists have expressed hope for the court stating that it would reverse years of impunity in CAR for crimes committed since former president Francois Bozize took power in a coup d’etat in 2003 and following Bozize’s ouster in 2013 by Seleka rebels. The tribunal, will begin its formal investigations next week and will be comprised of both national and international judges. There have been claims that arrests have already begun. (African News)
Human Rights Watch submits amicus curiae brief to Colombia Transitional Justice Tribunal
Human Rights Watch (‘HRW’) has submitted its amicus curiae brief to the Constitutional Court of Colombia. It identified three areas subject to shortcomings in the Statutory Bill of the Colombia Transitional Justice Tribunal – the Special Jurisdiction for Peace. The brief reiterated HRW’s position and voiced its concerns regarding the seemingly rigid definition of command responsibility for FARC commanders, the ambiguous sanctions regime for the alleged war crimes and the rights of victims participating in the proceedings. According to the brief, one of the constituent elements of command responsibility, the element of knowledge, falls short of international criminal law standards developed thus far. Specifically, HRW opined the standard of proof for command responsibility contained in the Bill follows a more rigid language compared to the practice and the case law of the ICTY and ICC. While the former’s jurisprudence requires that the person in command “had a reason to know or should had known” standard, it follows from the language of the Bill that for the FARC commanders to be liable, it must be proved they had “a knowledge based on the information at their disposal before, during and after the commission of the respective conduct.”
The brief further raised concerns about the enforcement and the extent of restrictions of liberty of those war criminals who “fully and promptly” confessed to the committed crimes given that the peace agreement exempts them from any time in prison. HRW stressed that such lack of specification may lead to a less meaningful sentence to the detriment of criminal justice. The brief finally called for specification of the mode of participation and implementation of the broader rights vested in victims’ participation in the proceedings, recalling that even this element should follow internationally established standards. Colombia’s Special Jurisdiction for Peace officially commenced on 15 March 2018 and is a result of the November 2016 Peace Agreement between the Colombian government and FARC. The Tribunal is designed to serve transitional justice by bringing truth to the victims through the alleged perpetrators, including the military officials, providing testimony and written accounts of the crimes committed. The Jurisdiction for Peace is vested with exclusive jurisdiction over the crimes committed prior to 1 December 2016 in the context of the armed conflict and is mandated to investigate grave breaches of international humanitarian law and gross human rights violations. (Human Rights Watch)
Bosnian Court upholds conviction of Croatian female fighter for killing and torture
On May 31 2018, the appeals chamber of the Bosnian state court upheld the 14-year conviction of Azra Basic, a former member of the Bosnian Croat force, the Croatian Defence Council. Ms. Basic was found guilty of murder, torture and inhumane treatment of Serbian civilians in early 1992. Evidence was heard that Ms. Basic killed a man, Blagoje Djuras, and that she forced detained civilians to eat banknotes, walk on broken glass barefoot, and lick blood from the body of Mr. Djuras. Ms. Basic was originally arrested in the United States before being extradited to Bosnia and Herzegovina in 2016. The verdict rendered on May 31 cannot be appealed. (BalkanInsight)
Photo: Protests in London against bombing campaigns in Syria. (Alisdare Hickson/Flickr)
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