In this week’s review, news about the ICC decision to investigate Burundi crimes, the second decision on a reduction to Lubanga’s sentence, Brammertz on Croatia non-compliance and a visit to Sarajevo, the Bemba appeal and contextual elements of crimes against humanity, the ICC cooperation with UNESCO on cultural heritage and more:
ICC Judges authorize opening investigation in Burundi
On 9 November 2017, ICC Pre-trial Chamber III issued the public redacted version of its decision granting authorization to the ICC Prosecutor to open an investigation into the situation in Burundi. The Chamber found that there was reasonable basis to proceed with an investigation in relation to crimes against humanity (including murder, imprisonment, torture, rape, enforced disappearance and persecution) allegedly committed in Burundi, and by Burundian nationals outside the country, since 26 April 2015 until 26 October 2017. It also noted that the Prosecutor is authorized to extend her investigation to crimes which were committed before or after those dates if certain legal requirements are met. The crimes in question were allegedly committed by State agents and other groups implementing state policies, including members of the young wing of the ruling party known as the “Imbonerakure”.
The decision was first issued under seal on 25 October 2017, two days before Burundi’s official withdrawal from the Rome Statute came into effect. Accordingly, the Court retains its jurisdiction even after the withdrawal as long as the investigation relates to crimes allegedly committed during the time Burundi was a member of the Rome Statute. The level of confidentiality of the authorization proceedings (under seal, ex-parte) was explained to be aimed at attenuating risks to life and well-being of victims and potential witnesses. Lastly, the Chamber addressed the issue of complementarity, noting that the Burundian authorities have remained inactive in relation to potential cases, even despite the establishment of three commissions of inquiry, thus creating no conflict of jurisdiction between the Court and Burundi. (ICC Press Release, ICC PTC Decision)
ICC Appeals Chamber decides no change in circumstances to warrant Lubanga sentence reduction
On 3 November 2017, the Appeals Chamber of the ICC issued its second decision on the review concerning the reduction of sentence of Thomas Lubanga Dyilo. The decision was issued by a three-judges panel appointed to conduct the review concerning the reduction of the sentence, as provided by rule 224(1) of the Court’s Rules of Procedure and Evidence. The process of reviewing the sentence of a convicted person falls within the purview of Article 110(3) of the Rome Statute, according to which “when a person has served two-thirds of the sentence, […] the Court shall review the sentence to determine whether it should be reviewed”. In its decision, the panel rejected the request by the Legal Representatives of Victims to postpone the review of Lubanga’s sentence by 6 months, and refused to reduce Lubanga’s sentence. On 14 March 2012, Lubanga was convicted of the war crimes of conscripting and enlisting children under the age of 15 to actively participate in hostilities, crimes for which he was sentenced to 14 years of imprisonment in July 2012. Following its appointment in June 2015, the three-judges panel conducted a first sentence review decision in September 2015, in which it determined that it was not appropriate to reduce Lubanga’s sentence, and announced another review after two years. In making its determination for the second review, the panel assessed each of the factors listed under Art. 110(4) of the Statute and rule 223 of the Rules, together with the submissions of the parties, to determine whether there had been any change in circumstances since the first sentence review and, if so, whether that change was actually significant. The panel determined that there was no significant change in circumstances since the first review that would merit a reduction in Lubanga’s sentence, and that in light of his sentence expiring on 15 March 2020, there is no need to schedule a further review of the sentence. That is, however, without prejudice to the Lubanga’s right to apply for a new review in case of significant changes in circumstances. (ICC AC Decision)
ICTY / MICT Prosecutor to report Croatia to UN Security Council over non-cooperation
On Tuesday, in an interview with a Croatian newspaper, ICTY Prosecutor Serge Brammertz said that Croatian authorities are obstructing cooperation between the Croatian judiciary and their counterparts in Bosnia and Herzegovina on war crime cases. In the interview, the Prosecutor explained that such uncooperative behavior is preventing suspects from being tried for war crimes, adding that he will tell the UN Security Council that the ICTY Prosecution is “very dissatisfied” with the situation, a feeling that he already shared with Croatian Justice Minister last week. “I told the minister that I was very surprised that in one EU member state, the executive can drastically interfere with its own judiciary by preventing the fulfilment of certain requests for assistance from Bosnia and Herzegovina,” Brammertz told the newspaper. In June 2015, the Croatian government gave Croatian institutions the power to reject cooperation with Bosnia and Herzegovina over certain indictments if deemed politically motivated. “Sometimes it is difficult to understand why there are so many problems and delays as both countries have a similar legal basis and use the same language. Definitely, I can say that regarding the quality of cooperation between prosecutors in Croatia, Bosnia and Herzegovina and Serbia, there is room for improvement,” said Brammertz in the interview. (BalkanInsight)
Appeals Chamber asks parties for submissions on 7 questions on contextual elements in Bemba appeal
On 30 October 2017, the Appeals Chamber in the Bemba case ordered the parties to submit answers in relation to the contextual aspects of the organizational policy. After his conviction by Trial Chamber III on 21 March 2016, Mr. Bemba filed his Appeal Brief on 19 September 2016 where he argued that the “organizational policy to commit an attack directed against the civilian population” was not established. The Appeals Chamber approved to receive further submissions on the contextual aspects of the organizational policy but these were not filed. Hence, the Appeals Chamber orders submissions answering the 7 following questions: “i) How should a “policy” be understood: can it be inferred from the manner in which the crimes were committed or does it require something more?;(ii) Whether a policy to attack the civilian population was adequately described in the present case; (iii) What was the organizational policy in the present case?; (iv) Whether the factors relied upon by the Trial Chamber cumulatively provided a sufficient basis for its finding that there was an organizational policy in this case; (v) Whether, on the basis of the evidence accepted as credible in this case, it was erroneous for the Trial Chamber to have concluded that there was an attack directed against a civilian population, i.e. a course of conduct involving the multiple commission of criminal acts against a civilian population; (vi) Whether, on the basis of the evidence accepted as credible in this case, it was erroneous for the Trial Chamber to have concluded that the attack was widespread; and (vii) Whether, in respect of questions v and vi, it was erroneous for the Trial Chamber to have reached its conclusions on the evidence before it”. Filings shall intervene by 13 November 2017 for Defence, 27 November 2017 for the Prosecutor’s response, 11 December 2017 for potential victims’ observations. (AC Decision, Bemba’s Appeal Brief)
ICC and UNESCO formalize intent to cooperate in protection of cultural heritage
ICC Prosecutor Fatou Bensouda and UNESCO Director-General Irina Bokova have signed a Letter of Intent to formalize and enhance collaboration in the field of protecting cultural heritage from attack in times of conflict. On the occasion of the Letter signing, Prosecutor Bensouda remarked that “an effective strategy to address the destruction of cultural heritage requires a multi-faceted and collaborative approach. UNESCO is a natural partner for my Office and, the ICC more broadly, in confronting the scourge of attacks against cultural heritage within the Rome Statute framework.” The enhanced collaboration between the ICC and UNESCO stands amongst other significant events related to cultural property, including the ICC’s ruling and subsequent reparations order in the Al Mahdi case regarding the destruction of shrines and mausoleums in Mali, and UN Security Council Resolution 2347 of 2017, which condemned the unlawful destruction of cultural heritage. (UNESCO Press Release)
MICT / ICTY President Brammertz to conduct visit to Sarajevo
Serge Brammertz, MICT and ICTY Prosecutor, will conduct visit in Sarajevo from 6 to 8 November to prepare for his biannual reports to the UN Security Council, due in December 2017. Mr. Brammertz will meet with the “members of the Presidency of Bosnia and Herzegovina, Acting Chief Prosecutor Gordana Tadić”, the representatives of victims’ organizations and members of the diplomatic community. (MICT website)
Prosecutors in the Netherlands ask for life sentence in Ethiopian war crimes trial
The Public Prosecutor in the Netherlands has asked for a life imprisonment sentence in a case against a Dutch national charged with committing war crimes including torture and murder as part of the Derg regime in Ethiopia in the 1970s. The accused denies the charges. He has previously been convicted of war crimes and sentenced to life imprisonment in Ethiopia in abstentia; as the Ethiopian verdict cannot be implemented in the Netherlands, the Dutch authorities are pursuing this new prosecution. (Netherlands Times)
Human rights group in Germany files complaint for Syrian refugees on war crimes and crimes against humanity
13 Syrian men and women have filed criminal complaints against 17 persons who they consider the most responsible for war crimes and crimes against humanity alleged to have been committed by Syrian President Bashar al-Assad’s regime. Non-profit legal organization the European Center for Constitutional and Human Rights has led the case in cooperation with Syrian lawyers, and the filing has been made under the principle of universal jurisdiction. The accused include officials of Syria’s National Security Bureau, Air Force Intelligence Directorate, the Ministry of Defence, and the Military Police. (The Local DE)
Creative Commons Attribution