In this week’s review, news about the ICC hearings on the Jordan / Bashir Art 87(7) appeal, Bemba’s request concerning his Presidential bid after acquittal, the Association of Defence Counsel practicing before the International Courts and Tribunals (ADC-ICT) requests amicus submissions in Nzuwonemeye case, closing arguments in the Ayyash et al STL case, the Trump administration’s position on the ICC and more:
France arrests Liberian suspect accused of crimes against humanity
French authorities have arrested a man identified as Kunti K. for allegedly committing crimes against humanity, including torture, murder, slavery, and cannibalism. Kunti K. is suspect of being a former commander in the United Liberation Movement of Liberia for Democracy during the Liberian civil war from 1993-1997. Paris prosecutors opened an initial investigation into Kunti K. after victims’ rights group Civitas Maxima filed a criminal complained on 23 July 2018. (France24)
Hearings in Jordan/Al-Bashir Appeal case at ICC
Following an appeal filed by the Kingdom of Jordan in January 2018 and numerous subsequent amici curiae submissions, the ICC Appeals Chamber commenced the hearing on the question of Jordan’s supposed failure to arrest Omar Al-Bashir and head of state immunity. The Appeals Chamber is scheduled to hear the parties’ submissions as well as submissions of amici curiae between 11 and 14 September 2018. Thus far, the Prosecution, the legal representatives for Jordan, professors of international law and representatives from the African Union have addressed the Chamber on some of the questions which the Chamber directed the parties to focus on in its 27 August 2018 order. More broadly, the questions pertain to applicable law and its interpretation on the question of head of state immunity, the power of the UN Security Council within the remits of the UN Charter to waive, displace or override the immunity of a head of state and the relationship between the applicable provisions in the Rome Statute and the 1953 Convention on the Privileges and Immunities of the Arab League.
The representatives for Jordan rejected the finding of the Pre-Trial Chamber and refuted its obligation to arrest Omar Al-Bashir due to his function as the Sudanese head of state. While Jordan pledged its support in the fight against impunity for the commission of serious crimes, it stressed the importance of respecting the fundamental rules and principles of international law. The Pre-Trial Chamber found in its Decision of 17 December 2017 that Jordan violated its obligation under the Rome Statute to arrest and surrender Omar Al-Bashir during his visit in Jordan in March 2017. In December 2017, the ICC also referred Jordan to the UN Security Council. Jordan challenged both decisions in its Appeal. (ICC Press Release, France24)
Bemba’s Defence seeks to overturn DRC decision preventing him running for president in submission to ICC Trial Chamber
The Defence for Jean Pierre Bemba in the Bemba et al case filed a request before the ICC Trial Chamber in response to the decision of the Constitutional Court of the DRC of 3 September 2018. In its decision, the Constitutional Court found Mr Bemba ineligible to run for the office of the President in the upcoming elections in the DRC due to his conviction pursuant to Article 70 in his contempt case at the ICC. The Independent National Electoral Commission of the DRC declared in August 2018 that persons convicted for corruption cannot stand for elections. This finding came a bit over a month after Mr Bemba announced his candidacy to run in the December 2018 presidential elections. The Defence submitted that the Decision is premature and in breach of the nulla poena sine lege principle, since the proceedings in the case have not yet concluded and the sentencing judgment is expected on 17 September 2018.
The Defence further argued that the penalty against Mr Bemba violates the principle of ne bis in idem, as safeguarded by Rule 168 of the ICC Rules of Procedure and Evidence. The Defence simultaneously requested that the Constitutional Court’s decision, as well as the media coverage of the decision, be admitted into evidence since the subject matter is directly relevant to the ongoing proceedings before the Trial Chamber. According to its submissions, the DRC court acted ultra viresin that the sole authority who has jurisdiction to decide on the parameters of the case is the ICC. This is especially true in light of the fact that pending the sentencing decision, the conviction is not enforceable. The Defence also challenged the failure of the Constitutional Court to seek views from the ICC before proceeding with its determination. In concluding, the Bemba Defence requested on an urgent basis that the Trial Chamber find that, in light of the legal principles put forward, the DRC authorities lack jurisdiction in imposing a sentence on Mr Bemba and, in the alternative, to take such finding into consideration in assessing the total level of punishment. (ICC, Defence Urgent Request)
ADC-ICT Files Request to Appear as Amicus Curiae in Nzuwonemeye Case at the MICT
On 10 September 2018, the Association of Defence Counsel practicing before the International Courts and Tribunals (ADC-ICT) filed a request to appear as amicus curiaein the case of Francois-Xavier Nzuwonemeye, heard before the Mechanism for the International Criminal Tribunals (MICT). Mr Nzuwonemeye was acquitted of various crimes relating to the 1994 Rwandan genocide. Since his acquittal, Mr Nzuwonemeye has been forced to remain in Arusha, Tanzania as he has not been granted permission either to return to Rwanda or to join his family in France. The brief makes submissions urging the MICT to act to ensure Mr Nzuwonemeye’s rights are respected. Mr Nzuwonemeye was initially convicted by Trial Chamber II of the International Criminal Tribunal for Rwanda on charges of murder as a crime against humanity and as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II on the basis of ordering and aiding and abetting the killing of the Prime Minister and as a superior in relation to the killing of the Belgian peacekeepers. This conviction was overturned on appeal on 11 February 2014. (ADC)
Oral closing arguments start in Ayyash et al case before the Lebanon Tribunal
On 11 September 2018, the Prosecution commenced its closing argument in the case of the Prosecutor v Salim Jamil Ayyash, Hassan Habib Merhi, Hussein Hassan Oneissi and Assad Hassan Sabra at the Special Tribunal for Lebanon (STL). The Prosecutor and the Legal Representatives of Victims filed their final briefs on 16 July 2018, and the Defence teams on 13 August 2018. The Prosecution’s arguments will be followed by those of the Legal Representative for the Victims. The oral closing arguments are expected to continue until 21 September 2018. The accused in this matter, Salim Jamil Ayyash, Hassan Habib Merhi, Hussein Hassan Oneissi and Assad Hassan Sabra, have been charged with conspiracy to commit a terrorist act and other offences arising from the bombing in Beirut on 14 February 2005 which killed former Lebanese prime minister Rafik Harari and 21 others. They are all being tried in absentia. The trial opened on 16 January 2014`and the Prosecution concluded the presentation of its evidence on 7 February 2018. (Naharnet, STL)
US National Security Adviser to Trump Administration statement on position towards the ICC; and Responses
In a speech on 10 September 2018 to the Federalist Society, US National Security Advisor John Bolton threatened that the US would impose sanctions on the ICC as a response to the ICC Prosecutor’s intention to apply to the Pre-Trial Chamber to open an investigation into alleged crimes in Afghanistan, including those allegedly committed by US nationals. Mr Bolton said if any investigations go ahead on alleged US war crimes, or against US allies, the Trump administration will consider banning judges and prosecutors from entering the country, put sanctions on any funds they have in the US financial system, and prosecute them in US courts. Mr Bolton also indicated that the US may pursue more bilateral agreements with other states, requiring those states not to cooperate with the ICC by surrendering US nationals to the court. The US has already entered into over 100 such agreements. He described the court as “illegitimate” and said the ICC was “already dead to us”. Mr Bolton was previously the US ambassador to the United Nations during the George W Bush government and fought against the ICC in the 2000s.
Responses to the statement included the following. The ICC issued a statement in response to threats from US National Security Advisor John Bolton, pledging to “continue to do its work undeterred, in accordance with… the overarching idea of the rule of law.” It indicated that “the ICC, as a judicial institution, acts strictly within the legal framework of the Rome Statute and is committed to the independent and impartial exercise of its mandate.” In addition, the President of the Assembly of States Parties, O-Gon Kwon, also issued a statement, highlighting the rules of complementarity underpinning the ICC’s jurisdiction, and re-affirming commitment to the principles and values enshrined in the Rome Statute. He stated that the ICC is “an independent and impartial judicial institution crucial for ensuring accountability for the gravest crimes under international law.” He said that “the Court is encouraged by the strong support and cooperation, not only of the 123 States Parties to the Rome Statute, but also by the support it has received from other States and international organizations and civil society in carrying out its mandate.” Former US ambassador David Scheffer, a leading expert on the United States and International Criminal Court, has also criticised Mr Bolton’s speech. He claimed that the speech would set a double standard which would result in authoritarian regimes resisting “accountability for atrocity crimes and ignore international efforts to advance the rule of law.” He stated that “the Court stands for the rule of law on atrocity crimes, and that will not change.” Also, UN MICT President Judge Theodor Meron issued a statement in support of the ICC which stated that “Our ability to ensure accountability for these crimes—which are amongst the most heinous crimes imaginable—depends upon the availability of national and international judicial mechanisms that adhere to the fundamental precepts of the rule of law, including by ensuring fundamental fairness and an impartial and independent judiciary, free from political interference. The International Criminal Court, which forms an integral part of the Rome system, is a critical exemplar of such a mechanism.” (ICC, Just Security, BBC, Al Jazeera, Reuters)
Lebanon Tribunal decides on victims’ participation in Ayyash et al closing argument; presents questions for all parties
On 6 September 2018, the Trial Chamber of the Special Tribunal for Lebanon granted the request of victims participating in the Ayyash et al case to be present in the courtroom during the closing arguments. After examining the briefs, the Trial Chamber directed the Parties and the Legal Representatives of Victims to address a series of questions in their oral closing arguments, to be heard between 11 and 21 September 2018. The questions spanned a variety of legal and evidentiary matters. (Decision allowing participating victims to attend proceedings, Questions for parties and legal representatives of victims)
Rwandan authorities arrest five on UN MICT warrants
On 3 September 2018, Rwandan authorities executed arrest warrants issued by the International Residual Mechanism for Criminal Tribunals (MICT), taking into custody, Marie Rose Fatuma, Dick Prudence Munyeshuli, Jean de Dieu Ndagijimana, Anselme Nzabonimpa, and Maximilien Turinabo. The accused are to be transferred to the seat of the MICT in Arusha, Tanzania. The five accused are allegedly responsible for contempt of court, incitement to commit contempt and knowing violation of court orders, interfering with the administration of justice at the MICT and the International Criminal Tribunal of Rwanda (ICTR). The alleged aim of the accused was to secure the reversal of the ICTR’s 30-year conviction of Augustin Ngirabatware. MICT Chief Prosecutor, Serge Brammertz expressed gratitude to Rwandan authorities for their prompt execution of the arrest warrants. (MICT)
UN Commission of Inquiry raises possible crimes against humanity in Burundi
The UN Commission of Inquiry on Burundi has accused the government of Burundi and members of its allied youth league with crimes against humanity. The Commission produced a report detailing summary executions, arbitrary arrests, forced disappearances, torture, and sexual violence. The report detailed how the governments youth league, the Imbonerakure have been used as a force for political repression, and act with a degree of impunity. Commission President Doudou Diene warned of increased human rights violations during the upcoming election, and said it was important for the international community to stay vigilant. The report also noted that while stopping human rights abuses is a short-term imperative, it is important to consider measures that would prevent such violations from occurring. Burundi has been in turmoil since President Pierre Nkurunzuza won a third term in 2015. The government is yet to respond to the report. (VOANews, OHCHR)
Commemoration of the Rome Statute’s 20th anniversary in Kinshasa, Democratic Republic of the Congo
On 5 September 2018, a conference was held in Kinshasa, the Democratic Republic of the Congo (DRC) to honour the 20th anniversary of the signing of the Rome Statute. The conference was organised jointly by the International Criminal Court (ICC) and Ministry of Foreign Affairs of the DRC. Representatives included ICC Judge Antoine Mindua Kesia-Mbe, the DRC’s Deputy Minister of Foreign Affairs Agée Matembo Toto, the personal representative of the Deputy Prime Minister and Minister of Foreign Affairs and Regional Integration Léonard She Okitundu, the ICC focal point in the DRC Professor Luzolo Bambi Lessa, other officials from the Ministry of Foreign Affairs, Congolese senior magistrates, bar association presidents, members of the diplomatic corps, university professors and civil society representatives. In speeches delivered at the conference, Mr Toto confirmed the DRC’s support for the ICC and commitment to peace-building in the region, while Judge Kesia-Mbe called on other states who had not yet ratified the Rome Statute to do so. (ICC Press Release)
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