In this week’s review, news about the close of the prosecution case the Ayyash et al case at the Special Tribunal for Lebanon, an ICC Preliminary Examination on the Philippines and Venezuela, the surrender of ICC suspect Al-Werfalli, Mladic submissions on mental capacity, the Pre-Trial Chamber’s request for more info on Afghanistan Situation, the African Union’s intention for an ICJ Advisory Opinion on head of state immunity, the legality of the Fujimori pardon at the IACHR, movement for an African Court on international crimes and more
ICC Prosecution opens Preliminary Examination into Philippines and Venezuela
The Chief Prosecutor of the International Criminal Court, Fatou Bensouda, announced on 8 February that she will be opening a preliminary examination into the situations in the Republic of Philippines (Philippines) and the Bolivarian Republic of Venezuela (Venezuela), both of which are States Parties to the Rome Statute. Regarding the Philippines, the examination will analyse crimes allegedly committed since July 2016 in the context of the government’s “war on drugs” campaign, focusing in particular on allegations of extra-judicial killings in the course of police anti-drug operations. The preliminary examination regarding Venezuela will focus on crimes allegedly committed in the context of demonstrations and political unrest since April 2017, particularly allegations that State security forces used excessive force to repress demonstrations and arrest and detain opposition members. Bensouda emphasised that a preliminary examination does not constitute an investigation, but rather involves assessing information alongside issues of jurisdiction, admissibility and the interests of justice to determine whether there is a reasonable basis to proceed with an investigation. (ICC Press Release; ICC Tweet)
Prosecution case completed in Ayyash et al., case at the Special Tribunal for Lebanon
On 7 February, the Prosecution at the Special Tribunal for Lebanon (STL) completed its presentation of evidence in the main case before the Tribunal, Prosecutor v. Ayyash et al. The proceedings relate to the 14 February 2005 attack in Beirut which injured 226 people and killed 22 others, including former Lebanese Prime Minister Rafik Hariri. Over the course of its case, the Prosecution has presented roughly 2,470 exhibits and evidence from more than 260 witnesses, in proceedings which are being held in absentia against four accused, who remain at large. The next phase of the case, which will occur at the end of February, will involve the Trial Chamber hearing submissions from the Defence under Rule 167, seeking a judgment of acquittal on the grounds that there is no evidence capable of supporting a conviction. (STL Press Release)
LNA Commander al-Werfalli announces his surrender to Libyan Army’s HQ to allow for investigations into ICC charges
General Mahmoud al-Werfalli, a senior military commander of the eastern Libyan Army announced in a video on 7 February that following the instructions from the General Commander of the Libyan National Army, Khalifa Haftar, he surrendered himself to the army’s military police to complete the ICC investigations. There has not yet been any official confirmation of his arrest. The reported surrender comes after the ICC Prosecutor, Ms. Fatou Bensouda requested the Libyan authorities in a memorandum issued in January 2018, to hand al-Werfalli to the ICC for investigation of the alleged summary executions. The ICC Pre-Trial Chamber I issued an arrest warrant against Mahmoud al-Werfalli on 15 August 2017 for committing murder as a war crime and alleged participation in the killings of detainees in Benghazi. Following the arrest warrant, General Khalifa Haftar informed the ICC of Mahmoud al-Wefalli’s arrest and investigation into alleged crimes by the military prosecutor. However, the ICC Prosecutor, in an official statement in September 2017, noted that there were contradictory reports that al-Werfalli was still at large following this alleged arrest. Subsequent to that, and based on new videos allegedly depicting al-Werfalli participating in the executions, further calls were made by the ICC Prosecutor for al-Werfalli’s arrest. (Middle East Monitor, Al Arabiya
Mladic Defence seeks conviction annulment due to alleged impaired mental faculties
Due to serious neurological health problems reported by the Defence, counsel for Ratko Mladic requested the MICT Appeals Chamber on 31 January 2018 to vacate the Trial Judgment and stay the appeal proceedings until Mr. Mladic’s health is stabilized. The Defence submitted, quoting the expert opinion of Mr. Mladic’s examining doctor, that over the course of the trial, including delivery of the Trial Judgment, Mr. Mladic’s cognitive disorder prevented him from fully following the proceedings. The ICTY Trial Chamber rendered its judgment against Ratko Mladic, the former Commander of the main staff of the Bosnian Serb Army (VRS), on 22 November 2017. It sentenced him to life imprisonment for his participation and contribution to the crime of genocide committed in Srebrenica in 1995, crimes against humanity and war crimes committed in Sarajevo and hostage-taking of UN personnel, but acquitted him of genocide in several other Bosnian Municipalities in 1992. (Balkan Insight; MICT – Defence Motion, redacted).
ICC Pre-Trial Chamber requests OTP submit further information in consideration of opening Afghanistan investigation
On 5 February, ICC Pre-Trial Chamber III requested for a second time that the Prosecution provide it with further information to assist with its consideration of whether to authorise the opening of an investigation in the situation concerning Afghanistan. The PTC’s request under Rule 50(4) asked the Prosecution to submit (1) “Any publicly available report from the United Nations Assistance Mission in Afghanistan…”, (2) “Any publicly available report from the Afghanistan Independent Human Rights Commission (“AIHRC”) on torture, …” (3) “The United Nations (“UN”) Secretary-General reports to the General Assembly on the topic: “The situation in Afghanistan and its implications for international peace and security”, from the years 2003, 2004, 2010, 2013, 2014, 2015, and 2017” (4) “Any publicly available report from the UN Secretary-General to the General Assembly on the topic “Children and armed conflict in Afghanistan” …” (5) “Further clarification and information … about the structure and organisation of the Islamic State operating in Afghanistan” and (6); and “Further clarification and information, to the extent possible, about the structure of the US forces for the time period after 2008; for the interrogation policies of the US forces for the time period after 2006; as well as for the conduct of the US forces for the time period after 2011.” The Chamber noted the lack of information on these topics during certain time periods within the temporal scope with which the Prosecution seeks an investigation. On 20 November 2017, the Prosecution submitted its request for the PTC to authorise an investigation for crimes “committed on the territory of Afghanistan from 1 May 2003 onwards, as well as crimes committed within the context of the situation in other States Parties from 1 July 2002 onwards.” The PTC requested that the information be submitted to the PTC in two batches; one on 9 and the other on 12 February. (ICC PTC Order)
The African Union to seek advisory opinion from ICJ on head of state immunity
At its Assembly of Heads of State and Government on 28 and 29 January 2018, the African Union agreed to seek an advisory opinion from the International Court of Justice on the legal obligations of States Parties to the International Criminal Court in respect of head of state immunities. Guidance will be sought on the relationship between Articles 27 (irrelevance of official capacity) and 98 (cooperation with respect to waiver of immunity and consent to surrender) of the Rome Statute and States Parties’ wider legal obligations. African ICC States Parties will also request the ICC Assembly of States Parties to convene a working group of experts to propose an interpretive clarification on the question. The issue has arisen in the context of the failure of several ICC States Parties to execute ICC arrest warrants against Sudanese president Omar al-Bashir, resulting in their referral by the Court to the ASP and UN Security Council for non-compliance with the Rome Statute. (Dabanga, Coalition for the ICC)
Inter-American Court of Human Rights addresses pardon of Fujimori for crimes against humanity; hears from victims
On 2 February, the Inter-American Court of Human Rights heard arguments on the legality of the pardoning of former Peruvian president Alberto Fujimori. The court was asked to find that the pardon contravened international law, including the court’s orders in the Barrios Altos and La Cantuta cases to prosecute and punish the perpetrators of the human rights violations there found. Fujimori was sentenced to 25 years’ imprisonment in 2009 for crimes against humanity but was pardoned due to health concerns by current Peruvian President Pedro Pablo Kuczynski in December 2017. (Tico Times, Reuters, TeleSur, Amnesty International)
Kenya expresses commitment to Malabo Protocol to merge African Court with Court to try international crimes
It was reported on 5 February that Kenya had committed to ratify the 2014 Malabo Protocol to merge the African Court of Justice and the African Court on Human and People’s Rights into a single court. When the Protocol comes into force, the new African Court of Justice and Human Rights will be vested with international criminal jurisdiction to prosecute: genocide, crimes against humanity, war crimes, unconstitutional change of government, piracy, terrorism, mercenarism, corruption, money laundering, trafficking of persons, trafficking of drugs, trafficking of hazardous wastes, illicit exploitation of national resources, and aggression. Its personal jurisdiction will include any legal person except States. Incumbent heads of states and senior officials of African Union States will enjoy functional immunity from prosecution. To date, 10 states have signed but no state has ratified the Protocol. (Standard, Malabo Protocol)
Switzerland donates to Kosovo Tribunal in The Hague
In January 2018, Switzerland granted USD 214,750 funding to the Kosovo Specialist Chambers and Specialist Prosecutor’s Office (KSC). The KSC is part of Kosovo’s judicial system but based in The Hague and staffed with international judges and prosecutors. The KSC has jurisdiction over alleged crimes against humanity and war crimes by members and affiliates of the Kosovo Liberation Army in Kosovo between 1998 and 2000 relating to a 2011 Council of Europe Parliamentary Assembly Report. (Swiss Info, KSC)
Human rights reports details violations by Saudi Arabia; calls for suspension of UN Human Rights Council membership
A report published by two British lawyers is calling for the removal of Saudi Arabia from the United Nations Human Rights Council. The campaign stems from violations of international law, namely the arbitrary arrest of over 60 political activists in Saudi Arabia. One of the lawyers leading the campaign described Saudi Arabia’s participation in the UN HR Council as ‘contradictory’. The report went on to accuse Saudi Arabia of breaches of the Arab Charter on Human Rights, the Convention Against Torture, and the Universal Declaration of Human Rights. The Report asked the Human Rights Council to condemn Saudi Arabia’s violation of fundamental rights, call for the immediate release of the prisoners, recommend that Saudi Arabia accede to the International Convention on Civil and Political Rights, and refer the matter of the political prisoners to the UN General Assembly. (Jurist, Independent).
President of Kosovo says law establishing Special Tribunal unjust but cannot be revoked
February 1, the president of Kosovo, Hashim Thaci, has stated that the law on the Specialist Chamber in The Hague, set up to prosecute former Kosovo Liberation Army crimes will not be revoked by a new MP initiative. Though Thaci has made it clear that he personally does not support the establishment of the Court, he acknowledged the creation of the Special Court could not be undone. However, this initiative is supported by Kosovo’s ruling coalition parties. (Balkin Insight)
US extradites war crimes suspect to Croatia for lying about crimes in immigration papers
War crimes suspect Slobodan Mutić has been brought to Sisak Prison in Zagreb, Croatia. He was convicted in the United States for having lied on his immigration papers. He stated on his papers that he had never been indicted, convicted or involved in genocide or murder on racial, ethnic or political grounds. Mutić is wanted for several alleged murders occurring in 1993, including the killing of his ex-girlfriend. Mutić arrived in the United States in 1999 as a refugee. However, it was later discovered by US authorities that Croatia had issued a warrant for his arrest. (TotalCroatiaNews)
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