In this week’s review, news about appealing the ICC’s decision on Jordan’s noncompliance, Ntaganda’s restricted communications, ECCC decision on Co-Prosecutor’s appeal on investigations on sexual violence, the Kosovo Tribunal’s Prosecutor leaving, Special Tribunal for Lebanon (STL) defence on lack of evidence, Fujimori to stand trial again, Kenyan AC ordering Bashir’s arrest and more
ICC Pre-Trial Chamber grants, in part, Jordan’s leave to appeal the decision on Art. 87(7)
In the case of The Prosecutor v. Omar Hassan Ahmad Al Bashir at the International Criminal Court, Pre-Trial Chamber II granted Jordan’s request for leave to appeal the Chamber’s earlier decision finding that Jordan had failed to comply with its obligation to arrest Sudanese President Omar Al-Bashir while he was in the country in March 2017. Specifically, the Chamber granted leave for Jordan to challenge its conclusions regarding the effects of the Rome Statute and a 2005 Security Council resolution upon President Al-Bashir’s immunity, as well as its decision to refer Jordan’s non-compliance to the Assembly of States Parties and the UN Security Council. However, the Chamber denied leave to appeal on a fourth ground asserted by Jordan relating to the validity of the Chamber’s assessment of whether the 1953 Convention on the Privileges and Immunities of the Arab League also gave President Al-Bashir immunity from arrest. (ICC PTC Decision)
ICC Trial Chamber orders restrictions on Ntaganda’s communications to be lifted immediately
In the case of The Prosecutor v. Bosco Ntaganda at the International Criminal Court, Trial Chamber VI ordered that all restrictions be lifted on the telephone communications and visitation rights of Mr Bosco Ntaganda, effective immediately. Mr Ntaganda’s communications had previously been restricted in August 2015 following allegations that he had engaged in witness interference and coaching, and, since then, the restrictions have been periodically renewed or relaxed upon the Chamber’s review. In December 2017, the Defence argued that, because the evidentiary phase of the case was closing, the restrictions were no longer necessary. In its decision, the Trial Chamber emphasised the gravity of Mr Ntaganda’s earlier conduct, which included disclosing the identity of Prosecution witnesses and engaging in witness interference, but found that the circumstances of the case had fundamentally changed, with few witnesses, if any, remaining to testify, and the restrictions no longer being proportionate to Mr Ntaganda’s right to private and family life. (ICC TC Decision)
Prosecutor of Kosovo Tribunal to step down
The Chief Prosecutor of the Kosovo Specialist Chambers, David Schwendiman, announced that he would be stepping down from his position on 31 March, as his three-year term as a foreign service official for the United States cannot be renewed. The Kosovo Specialist Chambers, which is examining allegations of war crimes against ethnic Serbs in Kosovo in the 1990s, was established as part of the legal system of Kosovo, but is located in The Hague and employs international staff. It has not yet issued any indictments, and it is being reported that Mr Schwendiman’s departure may delay efforts to indict the tribunal’s first suspects. (Reuters)
Cambodia Tribunal issues decision on International Co-Prosecutor’s appeal of decision on request for investigation into sexual violence
On 13 February, the Pre-Trial Chamber (PTC) of the Extraordinary Chambers in the Courts of Cambodia issued its decision in Case 004 confirming the decision of the International Co-Investigating Judge (ICIJ) relating to a request by the International Co-Prosecutor (ICP) to investigate allegations of sexual violence in Prison No. 8 and in Bakan District. The ICP made submissions in respect of the allegations in 2009 and 2014, respectively, however, they did not form the subject of charges. In appealing the denial, the ICP submitted that the ICIJ was obligated to make a decision in respect of each of the facts of which he is seised. Accordingly, the ICP argued that the ICIJ had violated his obligation to investigate, erred in law and denied the ICP’s right to be heard.
The PTC found that the ICIJ’s approach did not evince any legal error that would invalidate the denial. It confirmed that only facts that have been previously charged can be considered for indictment, and recalled that the ICIJ remained seised of all facts and could modify the charges up until the closing order. The PTC found that the ICIJ had erred in requiring exceptional circumstances be demonstrated for requests to be granted at that stage, but found that the absence of charging itself reflected the absence of clear and consistent evidence. Having considered the question, the PTC could not identify any failure to investigate by the ICIJ. (Decision)
Special Tribunal for Lebanon (STL) defence calls for acquittal alleging lack of evidence
On 20 February, two weeks after the Prosecution at the STL officially closed its case in the Ayyash et al trial, the Defence for Hussein Hassan Oneissi presented its submission for acquittal, arguing the Prosecution did not present sufficient evidence in support of the charges brought against him. From the four accused, the Oneissi Defence is the only team to present the submissions for acquittal. Rule 167 of the STL Rules of Procedure and Evidence permits the Trial Chamber to enter a judgment of acquittal on any count if there is no evidence capable of supporting a conviction on that count. Mr Oneissi is charged with being an accomplice and co-conspirator to a terrorist act to assassinate the former prime minister of Lebanon, Rafiq Hariri, on 14 February 2005 by selecting a suitable individual to make a false claim of responsibility and involvement in his subsequent disappearance, and his alleged role in preparations for the dissemination of the false claim of responsibility for the attack. The trial in Ayyash et al case commenced on 16 January 2014 and the Defence teams are yet to present their Defence cases. All four accused remain at large and the trial has progressed in their absence. (Naharnet, STL website)
Ex-Peruvian President Fujimori ordered to stand trial again
Former President of Peru, Alberto Fujimori, has been ordered to stand trial for the alleged killing of six farmers in 1992 while he was in office. Mr Fujimori was serving a 25-year term of imprisonment for human rights abuses and corruption also committed while in office, but was pardoned and released in December 2017 by the Peruvian Government on health grounds. The government has stated that the pardon does not apply to the new proceedings. (BBC)
Kenyan Appeal Court orders Al-Bashir’s arrest next time he visits
On 16 February, the Kenyan Court of Appeal ordered that Sudanese President Omar Al-Bashir be arrested by Kenyan authorities when he next enters the country. The court also criticised authorities for failing to arrest Mr Al-Bashir when he visited Kenya in 2010. The International Criminal Court (ICC) issued warrants for his arrest in 2009 and 2010 following charges of war crimes, crimes against humanity and genocide, allegedly committed between 2003 and 2008 in Darfur. However, Mr Al-Bashir has remained at large despite entering multiple countries that are party to the Rome Statute. (Standard Media, Dabang Sudan, Nation)
Amnesty International alleges Syrian Government campaign in Eastern Ghouta amounts to war crimes
Amnesty International released a statement on 20 February 2018 alleging the bombing campaign launched by the Syrian Government with the backing of Russia in Eastern Ghouta in the Damascus countryside, constitutes war crimes. Amnesty International denounced the deliberate protracted bombing which within one month left hundreds dead and injured civilians and a called for an immediate response by the UN Security Council. Eastern Ghouta has been under siege for the past six years, following initially peaceful protests against the Syrian government which began on 25 March 2011. Amnesty International has previously documented unlawful killings including the alleged use of cluster munitions, which constitutes a violation of the international humanitarian law. The Commission of Inquiry on Syria previously concluded in its 2014 report that the unlawful killings in Eastern Ghouta constitute war crimes. (Amnesty International)
Passing of Judge Mohamed Shahabuddeen
On 17 February, Judge Mohamed Shahabuddeen passed away. Judge Shahabuddeen, of Guyana, served on the bench of the International Court of Justice from 1988 to 1997 and as a judge of the International Criminal Tribunal for the former Yugoslavia from 1997 to 2009. He was elected for a nine year term as a judge of the ICC in January 2009 but resigned shortly afterwards in February 2009. (ICC)
Head of Special Tribunal for Lebanon Defence Office to leave
François Roux, Head of the Defence of Office for the Special Tribunal for Lebanon (STL) is leaving the Tribunal. Mr. Roux is leaving the Tribunal as of 1 March 2018, having worked at the STL for 9 years. Mr. Roux has not been reappointed to the role as he has passed the STL’s retirement age of 65. The Defence Office at the STL was the first of its kind in international criminal tribunal. It is a Defence Office of equal standing to the other organs of the Court. Mr. Roux has been praised for his efforts by senior officials at the STL. The Secretary-General of the UN, in consultation with the President of the STL must now appoint a new Head of the Defence Team. (STL)
Moroccan official rules out signing on to the Rome Statute
Mustafa Al-Ramid, Morocco’s Minister of State for Human Rights has ruled out the possibility that the government would approve its membership to International Criminal Court (ICC) at the moment. The Minister had not ruled out the possibility of Morocco later joining the ICC, but stated that “We could do this when circumstances change and when we do not have a national problem.” It was reported that the continuing dispute over the Western Sahara influenced the government’s decision and the Minister’s statement. The statement was made despite calls from human rights groups and activists in Morocco for the government to ratify the Rome Statute. (MEMO)
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