In this week’s review, news about Bensouda’s address to the UNSC on Libya, the ICC’s invitation for Bangladesh to submit observations on jurisdiction for Rohingya crimes, Lebanon tribunal decisions on testimony and the Oneissi disqualification motion, ICC Prosecutor probe on crimes against humanity in DRC, the new Kosovo Tribunal Prosecutor and more:
Kosovo Tribunal appoints new Specialist Prosecutor
The Kosovo Specialist Chambers and Specialist Prosecutor’s Office (Kosovo Tribunal) has appointed Jack Smith, a US prosecutor, to the position of Specialist Prosecutor. Mr Smith has held numerous high ranking positions in the United States and in international organisations including as First Assistant United States Attorney and Acting United States Attorney for the Middle District of Tennessee, Chief of the Public Integrity Section of the US Department of Justice, Investigation Coordinator in the Office of the Prosecutor at the International Criminal Court and, most recently, Vice President and Head of Litigation for the Hospital Corporation of America. The position of Specialist Prosecutor was previously held by David Schwendiman, another US attorney, who stepped down on 31 March 2018 when his term as a US Foreign Service Officer expired. The appointment comes after a selection process organised by the European Union. The Kosovo Tribunal was established in The Hague, the Netherlands, in 2015 to prosecute crimes allegedly committed by members of the Kosovo Liberation Army during the war between 1998-1999 which resulted in the country’s secession from Serbia. No indictments have been issued by the court to date. (Kosovo Tribunal Website, Reuters, Balkan Insight)
ICC Prosecutor addresses UN Security Council on Libya Situation
On 9 May, ICC Prosecutor Fatou Bensouda addressed the UN Security Council on the Libya Situation. The Situation concerning Libya has been open before the ICC since UN Security Council Resolution 1970 adopted in February 2011 which gave the ICC jurisdiction over crimes committed in Libya under the Rome Statute from 2011 onwards. Bensouda expressed concern about the on-going conflict and instability in Libya which “create a fertile ground for violence, and regrettably, the commission of atrocities.” Bensouda noted that the OTP ” continues to be seized of the Libya situation and our investigations are ongoing” and highlighted “a focus on crimes relating to human trafficking and abuses against migrants.” In regards to further investigations into crimes in Libya, the Prosecutor stated that “we expect we will be in a position to apply for warrants of arrest against other suspects in the near future.”
As to those suspects who already have an arrest warrant issued against them by the ICC, Bensouda called on the national authorities to comply their obligation to arrest and surrender Mahmoud Mustafa Busayf Al-Werfalli and asked General Khalifa Haftar, Commander of the Libyan National Army, to cooperate with the national authorities; noting that since his indictment before the ICC there is evidence that he has committed further crimes, including further executions. Bensouda noted that Al-Tuhamy Mohamed Khaled still remains at large and that cooperation by states is required to gather information that will assist in his arrest and surrender. As for Saif Al-Islam Gaddafi, Besounda acknowledged reports about the state of his custody but stated that the position of the OTP is that the “ICC warrant of arrest against him remains outstanding” and Libya continues to be under an obligation to cooperate with his arrest and surrender. (ICC-CPI)
ICC invites Bangladesh to submit observations on jurisdiction question over Rohingya situation
Following the Prosecution’s Request for a Ruling on Jurisdiction over the alleged mass deportation of the Rohingya people from Myanmar to Bangladesh submitted on 9 April 2018, the ICC Pre-Trial Chamber invited Bangladesh to submit, by 11 June 2018, its observations pursuant to Rule 103(1) of the ICC Rules of Procedure and Evidence. To assist the Court in ruling on the issues raised in the Prosecutor’s Request, and as a state particularly affected by the alleged mass deportations, the Pre-Trial Chamber sought observations on three separate questions. These concern the implications of the presence of Rohingya people from Myanmar on the situation in Bangladesh; territorial jurisdiction of the ICC over the alleged acts of deportations as stated in the Request and lastly, observations on any other matter stemming from the Request.
Unlike Myanmar, Bangladesh is a state party to the Rome Statute, hence the Rules do not require observations from Myanmar.The Prosecutor’s Request of 9 April 2018 came as a response to the evidence collected by numerous UN agencies, renowned NGOs and individual communications to the ICC. The evidence indicates that the alleged continuous acts perpetrated by the Myanmar’s authorities against the Rohingya people in several provinces in Myanmar could constitute crimes against humanity. Even though the Request notes the mass atrocities all across Myanmar, the Request is limited to the issue of deportation of over 670, 000 ethnic Rohingya from Myanmar to Bangladesh. This issue gives rise to Article 12(2)(a) of the ICC Rome Statute, and hence the ICC’s territorial jurisdiction. (ICC Pre-Trial Chamber Decision)
The Gambia to domesticate the international crimes recognised by the ICC
Mariam Khan-Senghore, the permanent secretary of the office of the vice president of The Gambia made a statement on 2 May pledging The Gambia’s readiness to embrace the principle of complementarity flowing from the ICC’s Rome Statute by incorporating crimes under the jurisdiction of the ICC into its domestic criminal system. This would ultimately enable The Gambia to prosecute the crimes in the Rome Statute on a domestic level. This could be used to try perpetrators of the human rights violations committed during the regime of former president Yahya Jammeh from July 1994 to January 2017, which included extrajudicial killings, enforced disappearance, rape and torture. Domesticating the crimes is also an integral part of The Gambia’s transitional justice programme and the establishment of The Gambia’s Truth, Reconciliation and Reparations Commission. The Gambia continues to be a State party to the ICC having withdrawn its previous notice of withdrawal from the ICC made in October 2016. (The Point)
ICC Prosecutor in DRC to probe alleged crimes against humanity
The ICC Prosecutor Fatou Bensouda concluded her visit to the Democratic Republic of the Congo on 4 May which followed international calls for the investigations into reported violent clashes between the Congolese government forces and the opposition to President Joseph Kabila. Since at least December 2016, when Joseph Kabila’s term of office was due to expire “episodes of violence” against protesters and the opposition, mostly represented by the Catholic Church, in Kinshasa, Beni and Kasai provinces have been reported. This prompted the European Union and civil society representatives, such as citizen movement Debout to request the ICC to investigate the alleged crimes. Bensouda stressed that the acts observed could allegedly constitute crimes under the jurisdiction of the ICC and called upon the national authorities to conduct investigations into the alleged abuses. (ICC Prosecutor Statement, Africa News, ABS CBN News)
Lebanon tribunal decision on Sabra motion ordering former Prosecution Investigator to testify
The Trial Chamber of the Special Tribunal for Lebanon has issued an order in the case of the Prosecution v Assad Hassan Sabra ordering that a former Prosecution Investigator testify. The Chamber partly granted the application made by Mr Sabra’s counsel on 5 March 2018, after the close of the prosecution case and after evidence was called by co-accused Hussein Hassan Oneissi. The Chamber first held that counsel for Mr Sabra could and should have called the witnesses as part of their case and had not explained why this had not been possible. The Chamber rejected the application to call three of the witnesses but still ordered that one of the witnesses be called under the Chamber’s own discretion to call witnesses stipulated in Rule 165 in the Special Tribunal’s Rules of Procedure and Evidence. The single witness, Mr Michael Taylor, was Chief of Investigations at the Office of the Prosecutor and was considered to have sufficient knowledge of the investigation to render the other witnesses unnecessary. Mr Sabra is one of four co-accused on trial for alleged conspiracy to commit a terrorist act and other related charges, relating to the attack in Beirut on 14 February 2005. The trial has been running since 2014. (STL Trial Chamber Decision)
Lebanon tribunal panel dismisses Oneissi motion to disqualify Trial Chamber
On 4 May, the Special Tribunal for Lebanon dismissed a motion filed in the Ayyash et al. case on behalf of Hussein Hassan Oneissi requesting the disqualification and withdrawal of the Trial Chamber Judges. The decision was taken by a Panel designated to deal with the matter pursuant to Rule 25 of the STL Rules. In the motion, the Oneissi Defence had submitted that the Trial Chamber had shown both actual bias and a reasonable apprehension of bias in its conduct towards the Defence, citing as examples the Trial Chamber’s scheduling orders and its treatment of a request to reclassify its updated witness list. The Panel found the motion to be unfounded, the Defence having failed to demonstrate that the Trial Chamber’s unfavourable decisions were attributable to a pre-disposition against Oneissi and not genuinely related to the application of law. (STL Press release, Decision)
Prosecution responds to medical report on Gbagbo’s health and request for interim release
On April 30 the Office of the Prosecutor for the ICC made two separate filings regarding concerns for Laurent Gbagbo’s health. The have come following a medical report submitted on April 4 2018, and the subsequent Trial Chamber decision which rejected Mr. Gbagbo’s request for interim release. One of such filings on Mr. Gbagbo’s request for interim release, stated that the Defence has been unable to demonstrate there being a change in Mr. Gbagbo’s health that would warrant his release from detention during his trial. It was noted that Mr. Gbagbo’s health is in stable condition and that Gbagbo’s detention is necessary to ensure his appearance at trial. The other filing pertained to the Prosecutions observations on a medical report regarding Mr. Gbagbo’s health. Here the OTP further stated that Mr. Gbagbo is in a stable condition, and is monitored by specialists. (ICC OTP Filing on Gbagbo health, ICC OTP Filing on Gbagbo interim release).
Photo: Kosovo Specialist Chambers/https://www.scp-ks.org/en
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