In this week’s review, news about the ICC decision on deceased victim procedure, Gbagbo’s notice of appeal on detention rejection, the Stanisic and Simatovic retrial, the ICC Georgia investigation, Ntaganda agreed facts, Naser Oric’s acquittal and more
Gbagbo Trial Chamber establishes procedure for participation of ‘closely-related individuals’ of deceased victims
On 11 October, Trial Chamber I of the ICC issued a “Decision on the resumption of action applications” of deceased victims in the case of The Prosecutor v. Laurent Gbagbo and Charles Blé Goudé. Earlier this year, on 20 July, the Legal Representatives for Victims (LRV) had submitted a request for the resumption of action of deceased victims, which asked for the family members of six deceased victims to be allowed to participate in the trial and, more generally, for the Chamber to adopt a procedure for similar cases in the future.
In support of its request, the LRV referred to the repeated case law of the Court in which similar requests had been granted, citing inter alia the Bemba and Ntaganda cases. Gbagbo’s Defence had objected to the request mainly on the grounds that it came in at too late of a stage, as some of the victims had passed away before pre-trial confirmation, and that the possibility to present views and concerns is not a right to be inherited. It also contested that, if succession of participation were to be granted, it should be done in accordance with Ivorian civil law, and that no procedure on the matter should be adopted. The Chamber underscored the Court’s practice on the matter, in particular that relatives or closely connected individuals have been allowed to continue the action initiated by deceased victims in the past. The Chamber thus authorised the applications of the family members of the six victims listed in the LRV’s request, and established a detailed and time-framed procedure for future resumption of action applications.
According to the procedure, when a participating victim dies, the LRV is to inform the Victims Participation and Reparation Section (VPRS) which will amend the consolidated list of participated victims and file an updated version of it to the Chamber at least twice a year until the end of the proceedings. The VPRS will also be the one receiving applications for resumption of action and will be in charge of the transmitting them to the Chamber and the parties with necessary redactions allowed, and any specific objection should be filed within 14 days of the notification of the relevant application. The Chamber will assess the contested application in the case of any objection raised, and grant the resumption of action in the case of no objection. (ICC TC Decision).
ICC Appeals Chamber rejects Gbagbo’s notice of appeal on detention
In the case of The Prosecutor v. Laurent Gbagbo and Charles Ble Goudeongoing at the ICC, the Appeals Chamber has issued its decision on Mr Laurent Gbagbo’s notice of appeal against Trial Chamber I’s previous decision to continue Gbagbo’s detention. The Appeals Chamber dismissed Gbagbo’s appeal in limine, based on the fact that Gbagbo’s Notice of Appeal failed to set out the ground of appeal (per Regulation 64(5) of the Regulations of the Court) and further because Gbagbo’s Counsel appears to have relied on an outdated version of the Regulations of the Court. The Appeal Chamber subsequently concluded “In light of the strict timelines prescribed by regulation 64 of the Regulations of the Court for the efficient conduct of proceedings on interim release, the Appeals Chamber considers that to allow Mr Gbagbo to re-file his Notice of Appeal at this stage of the proceedings would unduly infringe on these timelines.” Judge Howard Morrison appended a dissenting opinion to this decision, wherein he stated that, while he agreed that the Notice of Appeal falls short of full compliance with Regulation 64, the broader interests of justice could have been better served by condoning the non-compliance with a strong caution to Mr Gbagbo and his Counsel – this being especially preferable given that the liberty of an individual is at stake. (ICC Decision, ICC Decision Dissenting Opinion)
Civilian status of missing Croatian contested in Stanisic and Simatovic retrial
In the trial of former Serbian commanders Jovica Stanisic and Franko Simatovic ongoing before the MICT, the defence team has rejected the claim put forward by the prosecution’s expert witness that persons rendered missing by the conflict were civilian, arguing instead that some were soldiers. The expert testified that most of the 929 people still missing following the war in Croatia disappeared following Serb attacks in 1991. The defence countered by pointing to three men listed in the expert report who had also been listed on a registry of Croatian war veterans compiled by the Croatian ministry of defence. Stanisic and Simatovic are charged as co-perpetrators in a joint criminal enterprise that allegedly committed four counts of crimes against humanity and one count of violations of the laws or customs of war in the former Yugoslavia between 1991 and 1995. Both were convicted by Trial Chamber I of the ICTY in 2013, but the Appeals Chamber subsequently quashed the conviction and ordered a retrial, which commenced on 13 June 2017. (Balkan Insight)
ICC staff member gives interview on Georgia investigation
The ICC staff member, Phakiso Mochochoko, Director of the Jurisdiction, Complementarity and Cooperation Division of the Office of the Prosecutor (OTP) at the International Criminal Court (ICC), gave an interview about the ICC’s investigation into the situation between Georgia and Russia which started in January 2016. In the interview, Mr. Mochochoko recalled that the mandate of the OTP is limited to “the 2008 war”. He explained that after having been authorized by the Chamber, the OTP started to analyze and review materials “received during the premier examination process”, a process finalized end of 2016. He also states that currently is the “process of identifying and contacting witnesses, and interviews” and that “investigations have now intensified” and will continue until the OTP has “collected enough evidence to satisfy ourselves that we meet the legal requirements, the legal standards” required.
Mr. Mochochoko further explains that once this investigation process is finalized, if it is satisfied that it has got enough evidence, the OTP will present evidence found to the judges and ask them “to issue arrest warrants against anybody that evidence points to be responsible for those crimes”. If judges, after assessment, agree that evidence passes the threshold, they will issue the arrest warrants requested. He then explained the process that will follow, stating that “the next stage then will be for that individual(s), or those individuals, to be arrested and brought to the ICC. Once they are before the ICC, the judicial process and the proceedings in court will start” with the evidence of the prosecutor, followed by the evidence of the defense and then by cross-examination and closing statements for both. The judges then go into deliberations of their own, to assess the evidence and make the decision on the guilt or otherwise of the person that we allege has committed crimes. Mr. Mochochoko also states that the ICC is investigating crimes that were allegedly committed by all sides to the armed conflict of 2008: Russia, Georgia and the Tskhinvali authorities.
He then mentions that the OTP identified no suspect so far explaining that the OTP starts “off by collecting the evidence” on the basis of which OTP “comes to the conclusion of who among the three sides, who individually, should bear the criminal responsibility for the crimes that were allegedly committed during that conflict”. Mr. Mochochoko explains that the Georgian side is cooperation with the investigation while the OTP has “not received any cooperation from either Russia or South Ossetia” even though the Office continues “to make every effort to try and persuade them to cooperate with us” in the interests of the victims, of justice, and in their own interest. With respect to the opening of an ICC office in Tbilisi in January 2017, he mentioned that it will fall under the Registrar and that its main function will be “to interact and facilitate communication in Georgia with the government, civil society, institutions, and to provide information about the Court”. (Civil.ge)
ICC Trial Chamber to take further submissions on agreed facts in Ntaganda case
On 22 June 2015, the Chamber received an agreement between the Prosecution and Defence in the Ntaganda case on the fact that “Rwanda provided weapons and ammunition to the UPC/FPLC beginning July 2002” (Agreed Fact). From June to September 2017, Mr. Ntaganda testified. On 31 August 2017, the Chamber asked the Defence to provide the position of the accused on the Agreed Fact and indicated that it would then “evaluate whether it would require further observations, including ‘whether it shall authorise the Prosecution to adduce additional evidence on this issue or any other issue flowing from the agreed facts”.
On 22 September 2017, Defence filed its submissions indicating that the Agreed Fact “does not accord with Mr. Ntaganda’s knowledge, who denies having any knowledge of this fact” explaining that the Defence misunderstood his observations related to this Agreed Fact. The submission further states that the Agreed Fact is of “little relevance to the matters” since the crimes charged are allegedly committed during a conflict of a non-international character and that no other agreed fact requires modification. On 28 September 2017, the Prosecution submitted that the Defence provided inconsistent information and unconvincing explanations.
It further stated that the Agreed Fact is relevant “not only to the nature of the armed conflict, but also to the common plan” and stated it will seek leave to adduce further evidence should the Chamber ‘vitiate’ the Agreed Fact. The Chamber rejected the Defence leave to reply to the Prosecution Submissions. However, it directed the Prosecution to file such request by 10 November 2017, and the Defence and the Legal representatives of victims to file any responses by 17 November 2017. (ICC TC Decision)
Naser Oric acquitted of war crimes before Sarajevo court
The former commander of Bosnian Muslim forces in Srebenica was accused of murdering three prisoners of war in 1992. Oric was tried with a former subordinate, and Sabahudin Muhic. Explaining its decision, the court said that the key prosecution witness gave contradictory evidence about each alleged murder. Oric was previously acquitted by the ICTY of war crimes of murder, cruel treatment, wanton destruction and plunder against Serbs in 1992 and 1993. (DW, Balkan Insight, SBS)
ICC issues statement responding to allegations concerning Ocampo and Libya
October 5th 2017, the International Criminal Court, and the Prosecutor, Fatou Bensouda published statements addressing allegations made in late September against former Prosecutor of the ICC, Luis Moreno Ocampo. The allegations are reportedly based on 40,000 documents, obtained by European Investigative Collaborations and other news outlets. The statement highlighted that there was no indication to the ICC that the documents were obtained by hacking, the Court having carried out checks on its own security. The ICC addressed financial concerns against Ocampo by stating that the United Nations Financial Disclosure Programme and the Secretary General’s Voluntary Public Disclosure Initiative are completed annually by Court staff. However, such systems were not in place during Ocampo’s tenure. Bensouda made clear that allegations implicating two of her own staff have been referred to the Independent Oversight Mechanism which is available to the ICC.
The object of which is to investigate any allegations with impartiality and respect for due process. Bensouda also stated that her Office has not initiated contact with, or collaborated with Ocampo, in relation to any of the cases or situations before the ICC. Bensouda went on further to say that she had expressed to Ocampo in ‘unequivocal terms’ that he should not engage in activity that could jeopardise the reputation of the Office. Media sources report that Ocampo had agreed to a multimillion dollar, 3-year contract with influential Libyan businessman, Hassan Tatanaki, and had notified him that he was being watched by war crimes investigators. This information was allegedly gained by Ocampo from sources at the ICC. It is also reported that Ocampo arranged for a senior press officer from the ICC to work for Tatanaki as well. Ocampo has denied allegation of receiving intelligence from the ICC, or having done anything to undermine the work of the Court. (ICC, Times).
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