In this week’s review, news about response to amici briefs on Jordan’s Art. 87(7) appeal, provisional release to Simatovic, Lebanon tribunal decision on Sabra Defence witness statements, Bemba’s Presidential bid, ICC Prosecutor submissions on Rohingya jurisdiction questions amici submissions, the ICC’s 20th anniversary and crime of aggression jurisdiction, a Spanish truth commission and more:
Jean-Pierre Bemba to vie for the presidency in late December DRC elections
Five weeks after the ICC Appeals Chamber overturned Jean-Pierre Bemba Gombo’s conviction for war crimes and crimes against humanity, the Movement for the Liberation of Congo (‘MLC’), a political party, has nominated Mr Bemba as a candidate in the presidential elections. The presidential elections in the DRC are scheduled for 23 December 2018. Mr Bemba previously served as the country’s vice-president. When the arrest warrant was issued by the ICC on 10 June 2008, Mr Bemba was the president and commander-in-chief of the MLC. He was convicted by ICC Trial Chamber III of crimes against humanity and war crimes committed by the MLC troop in the Central African Republic in the period of 26 October 2002 to 15 March 2003. The ICC Appeals Chamber acquitted him on all charges on 8 June 2018. Notwithstanding the acquittal, Mr. Bemba is in Belgium awaiting sentencing by the Trial Chamber in another case for his conviction for tampering with witnesses as an offence against administration of justice.(Bloomberg)
OTP & Jordan respond to amici submissions; League of Arab States and AU respond to Jordan Appeal
In the case against Sudanese president Omar Hassan Ahmad Al-Bashir before the International Criminal Court, the Prosecution and Jordan have responded to the amici curiae submissions filed with the Appeals Chamber. Although 17 requests to submit amicus curiae submissions were filed by Mexico and various international law academics, 11 amici filed observations with leave from the Appeals Chamber. While noting that the majority of the amici supported the reasoning of Pre-Trial Chamber II that Jordan was required to arrest and surrender Mr Al-Bashir, the Prosecution disputed the reasoning of two of the amici, who argued that the Chamber erred by finding that Jordan was required to comply with the arrest warrant, as Jordan was instead subject to a contrary international obligation to afford him immunity.
The Prosecution also observed that of the six amici that addressed the Pre-Trial Chamber’s referral of Jordan to the Assembly of States Parties and the Security Council, four of them supported the Chamber’s exercise of discretion, and the two others failed to raise specific errors by the Chamber. In its response, Jordan emphasised the legal uncertainties raised by the issues, noting the inconsistent decisions by various Pre-Trial Chambers with respect to the non-compliance of other states parties and the variety of theories reflected in the amici submissions. Separately, following an order inviting expressions of interest by international organisations as amici curiae by the Appeals Chamber, the League of Arab States and the African Union submitted observations on the legal questions presented in Jordan’s appeal. The League of Arab States emphasised the importance of immunities for heads of state and state delegations, and argued that Pre-Trial Chamber II’s decision should be set aside in its entirety.
It submitted that, while on Jordanian territory for the purpose of the Arab League Summit, Mr Al-Bashir acted on behalf of a member of the Council of the League and enjoyed immunity from arrest. Further, it argued that Sudan is clearly a non-party state and must be treated as such for purposes of the Rome Statute. In its submissions, the African Union also requested that the Appeals Chamber uphold Jordan’s appeal, and argued that Jordan lacked any duty to cooperate in Mr Al-Bashir’s arrest or surrender. It submitted that Security Council Resolution 1593 did not have the effect of removing Mr Al-Bashir’s immunities, and that states parties and non-state parties alike are obligated to respect his immunities under customary international law. (OTP Submissions, Kingdom of Jordan submissions, League of Arab States submissions, African Union submissions)
UN MICT grants Simatovic’s request for provisional release during the summer recess
In the case against Jovica Stanisic and Franko Simatovic before the International Residual Mechanism for Criminal Tribunals, the Trial Chamber granted Franko Simatovic’s request for provisional release during the summer judicial recess. In so doing, the Chamber noted Simatovic’s argument that he fully complied with the conditions imposed by the Chamber during prior periods of provisional release and that the release would enable him to continue medical procedures and spend time with his family, and further considered that he posed no danger to victims, witnesses or other persons. The Chamber requested that Simatovic be provisionally released into the custody of authorized officials for Serbia, and remain in Belgrade during the period of his provisional release, surrendering his passport and reporting every day to a local police station. The date on which Simatovic is to return to the Mechanism was redacted from the Chamber’s decision. (MICT TC Decision)
Lebanon Tribunal Trial Chamber states reasons for denying Sabra Defence request to enter witness statements into evidence
In the main case before the Special Tribunal for Lebanon, Prosecutor v Ayyash et al., the Trial Chamber issued reasons for its decision dismissing an application by the Defence for Assad Hassan Sabra seeking to receive 112 witness statements into evidence. The witness statements relate to Mr Khaled Taha, whom the Sabra Defence argues may have played a role in the disappearance of Mr Ahmed Abu Adass, and underlie an “aide-memoire” shown to Mr Michael Taylor, the Prosecution’s chief of investigations, who testified as a witness for the Trial Chamber in June 2018. Noting that the witness statements more appropriately belong in a defence case, the Trial Chamber observed that the Sabra Defence elected not to call a defence case and could not now use the chamber to “call one for them”. It further observed that the Sabra Defence has already made its point regarding the Prosecution’s alleged failure to investigate Mr Taha’s role in Mr Abu Adass’s disappearance and that the statements need not be in evidence for these points to be developed in the Defence’s final submissions. (STL TC Decision)
ICC celebrates the 20th anniversary of the Rome Statute
To mark the 20th anniversary of the adoption of the Rome Statute, state representatives, UN officials and other high-level guests gathered for a two-day event at the permanent premises of the ICC in the Hague. Speeches were made expressing support for the ICC and international criminal justice, as well as highlighting the way forward in the fight to end impunity. The president of Nigeria, H.E. Muhammadu Buhari spoke of the need to adhere to the Rome Statute: “I urge all States that have not yet done so to, as a matter of deliberate State policy, accede to the Rome Statute of the ICC so that it can become a universal treaty” while the president of the ICC, Judge Eboe-Osuji stressed the important role the ICC plays in situations “where national systems prove unable to give victims their day in court.” For this occasion, Human Rights Watch and Amnesty International produced a video together outlining the challenges that the ICC has to address, both from within and outside, in order to fulfil its mandate in the years to come.
These include the role of the ICC in ensuring the rights of victims are protected and the need to strengthen the mechanism for more effective representation of victims before the Court. They emphasised the critical role the member states play in the effective functioning of the ICC and how the lack of commitment and state cooperation together with financial constraints hamper investigations into crimes. They also criticised the lack of action and use of veto power by permanent Security Council members in the Syria case. They proposed that the European Union establish a dedicated special representative on international humanitarian law and international justice. In conclusion, Richard Dicker, Human Rights Watch’s international justice director, said: “Justice supporters will need to do all they can to see to it that the ICC will succeed on this difficult landscape and deliver victims their day in court.” (ICC Press Release, Human Rights Watch)
Prosecution responds to amicus briefs on Rohingya jurisdiction question
In its filing of 11 July, the ICC Office of the Prosecutor responded to observations by various interveners on the Prosecutor’s Request to the Pre-Trial Chamber. The Request asked the court to determine the court’s territorial jurisdiction in the case of deportations of civilians from a state that is not a party to the Rome Statute into a second state that is party to the Rome Statute. The question was prompted by the Prosecutor’s consideration of the alleged deportation of Rohingya people from Myanmar to Bangladesh. In the request of 9 April 2018, the Prosecutor argued that a ruling that the court has territorial jurisdiction in such cases would be consistent with the Rome Statute’s legal framework. The request said that the crime of deportation (as distinct from forcible transfer) requires enforced displacement across an international border and is therefore completed on the territory of the second state. The Prosecutor argued that such a ruling would accord with established principles of criminal justice, pursuant to which states commonly assert criminal jurisdiction over conduct occurring on the territories of multiple states. Two groups of victims and five amici curiae filed observations.
As they did not contradict the Prosecutor’s position on the central question, the Prosecutor’s Response served to clarify and elaborate upon the Request by reference to the observations. The Response nonetheless emphasised that the court need only confirm its jurisdiction in respect of one crime. It need not consider its jurisdiction in respect of the additional crimes raised by the interveners, nor would an affirmative ruling on the request limit the Prosecution to investigating only the crime of deportation. While engaging with the interveners’ observations on the legal nature of the crime of deportation, the Prosecutor asserted that these matters were superfluous to the jurisdictional basis in question and did not require determination by the Pre-Trial Chamber in answer to the Request. The Prosecutor stated that the Chamber should limit itself to those matters necessary to resolve the Request and that, provided the court confirmed jurisdiction in principle, the subsequent conduct of any preliminary examination, investigation, or prosecution would be exclusively matters for the OTP. (OTP Response, ICC OTP Request)
Spain to establish truth commission to probe Franco-era crimes
According to a statement by the Spanish Ministry of Justice, the newly elected socialist government has pledged, under a new “historical memory” law to establish a truth commission for crimes committed during the Spanish civil war between 1936 and 1939 and General Franco’s subsequent dictatorship, which ended in 1975. To date, no trials of potential perpetrators have been held nor have any investigations been conducted into crimes committed during this period. The planned measures are designed to bring justice to victims and the families of those who disappeared. The government has proposed some concrete measures, which also include conducting an official census of the victims and exhuming approximately 1,200 mass graves. Thus far, 120,000 victims have been exhumed from 2,591 unmarked graves, the majority of which are located in Andalusia, Aragon and Asturias. Organisations glorifying Franco’s dictatorship would also be banned and the criminal records of people who opposed the regime would be cleared. It is estimated that around 200,000 died in combat during the civil war, with the same figure calculated for victims of murder or executions. According to Amnesty International, only Cambodia has more mass graves than Spain. (The Guardian, Justice Info)
ICC to assume jurisdiction over ‘crime of aggression’
On 17 July, the International Criminal Court assumed jurisdiction over the crime of aggression, adding a fourth core crime to those dealt with by the Court. This will allow politicians and military leaders to be held individually responsible for invasions and other major attacks. When the Rome Statute was drafted, the crime of aggression was set out with the other three core crimes, but the states parties agreed to suspend the ICC’s jurisdiction until a common definition could be agreed upon. An agreement was reached at the Kampala Review Conference in 2010, it was not until December 2017 that the parties agreed to activate the ICC’s jurisdiction. So far, 35 states have ratified the amendment to the statute. Under the revised definition, a crime of aggression is “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations”. It includes “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State”. The new offence cannot be retroactively enforced. (Scottish Legal, Guardian)
ICC Pre-Trial Chamber make decision on victim outreach and participation in Palestine Preliminary Examination
On 13 July, The Pre-Trial Chamber I of the International Criminal Court ordered the Registry to establish a system of public information and outreach for the benefit of victims and affected communities in the situation in Palestine. The Chamber noted that victims would be provided with accurate information about the Court. Relating to its mandate, activities, and any possible progression of an investigation. Moreover, victims will be informed of any potential participation they may have to proceedings. The Chambers order included regular reports to the Chamber by the Registry as well as the creation of an informative page on the Court’s website directed at the victims in the situation in Palestine. (ICC PTC Decision)
MICT organises security and safety open day on gender strategy initiative
On 13 July 2018, the Residual Mechanism for International Criminal Tribunals (the MICT) organised and hosted a Security and Safety Services Open Day at the MICT’s premises in Arusha. The Open Day was held to launch the organisation’s Gender Strategy Initiative, which aims to demonstrate the MICT’s commitment to the implementation of the United Nations Department for Safety and Security (UNDSS) Gender Equality Strategy. It also aims to highlight the opportunities for women within the Security and Safety Section of the United Nations. The event marked the opening of a series of workshops, which will run from October to December 2018 at the MICT’s Arusha branch. Representatives from the MICT highlighted that it is currently staffed by 56% women. (UNMICT Press Release)
Bangladesh issues death sentences to 4 for Crimes Against Humanity
A domestic war crimes tribunal in Bangladesh has sentenced four people to death for crimes against humanity committed during the 1971 war in which it seceded from Pakistan. The defendants, Akmal Ali Talukder, Abdun Nur Talukder, Anis Miah, and Abdul Mosabbir Miah, were found guilty of genocide, murder, abduction and torture by the court, which was established to prosecute crimes committed by Pakistan’s military and local collaborators during the war. While only Mr Talukder attended the hearing in person, the court ordered the authorities to arrest the remaining defendants. (Anadolu Agency)
UNHRC defends report on human rights violations in Kashmir
The United Nations Human Rights Council has defended its first-ever human rights report on Kashmir after it was dismissed by Indian authorities as politically motivated. The report, issued in June 2018, accused Indian security forces of serious human rights violations, including the excessive use of force, and Zeid Ra’ad Al Hussein, the outgoing UN Human Rights Commissioner, called for an international commission of inquiry into the allegations. Although the Indian government suggested that the report relied on unverified sources of information, his office maintained that it was sourced from official Indian reports. (Times of India, The Wire)
Inter-American Commission launches monitoring and expert inquiry into serious human rights violations in Nicaragua
The Special Follow-up Mechanism for Nicaragua (MESENI) was deployed to Nicaragua on 24 June 2018 to follow up on the recommendations based on the Inter-American Commission of Human Rights (IACHR) report on serious human rights violations in the context of social protests in Nicaragua. The IACHR made its recommendations following a period of sustained violence that began during protests against social security reforms on 18 April 2018 across several cities in Nicaragua.
Following the IACHR report, the MESENI have been tasked with monitoring compliance with precautionary measures to be taken in favour of individual persons whose life or physical integrity is in serious danger, as well as monitoring the overall human rights situation in Nicaragua. In addition to this the Interdisciplinary Group of Independent Experts (GIEI) for Nicaragua arrived in Nicaragua on 1 July 2018, with the aim of contributing to and supporting the investigations into the violence that has occurred since 18 April 2018. The GIEI will also have the capacity to analyse the lines of investigation being taken into possible illicit acts and make recommendation as to differing levels of legal responsibility that may emerge through the investigations.
The GIEI guarantees its work to be done autonomously and independently. Since their visit from 17 to 21 May 2018 the IACHR has adopted nine resolutions to take precautionary measures to ensure the personal integrity of 64 individuals, including their families. In addition to this the IACHR has requested information on dozens of other applicants for precautionary measures. Those subject to precautionary measures are human rights defenders, journalists, student leaders, priests, and survivors of previous violence. The IACHR continues to receive and decide on further applications for further requests of precautionary measures to be taken. (OAS, OAS, OAS).