In this week’s review, news about the ICC’s new preliminary examination into the deportation of Rohingya Muslims, Re-sentencing in the Bemba et al., case, the start of Ongwen’s defence case, the ICC’s decision on issues of DRC elections and Bemba, the new Kosovo Tribunal Prosecutor sworn in and more:
Lawyers say Ongwen “did not possess a mind of his own save for the survival instinct”
On Tuesday 18 September, the Defence team for ICC accused, Dominic Ongwen, began making its case for Ongwen’s acquittal before Trial Chamber IX with an opening statement. The Defence team’s opening statement argued that Ongwen is a victim who was abducted by the Lord’s Resistance Army as a child and forced to act as a child soldier. Combating allegations that he evolved from a child soldier to commander as an adult with responsibility over criminal acts, Ongwen’s lead counsel, Krispus Ayena, told the Court that Ongwen “ did not possess a mind of his own save for the survival instinct.” The trial against Ongwen began on 6 December 2016. The Prosecution completed its case with the presentation of evidence for 70 counts of crimes against humanity including murder and attempted murder, torture, sexual slavery, rape, enslavement, forced marriage as an inhumane act, persecution, and other inhumane acts; and war crimes including attack against the civilian population, murder and attempted murder, rape, sexual slavery, torture, cruel treatment, outrages upon personal dignity, destruction of property, pillaging, the conscription and use of child soldiers. Following defence opening statement, the defence will begin its presentation of evidence on 27 September 2018. (New Vision, Aljazeera, Montreal Gazette, Daily Nation)
ICC Prosecutor opens preliminary examination into alleged deportation of Rohingyas from Myanmar to Bangladesh
Following the finding by the ICC Pre-Trial Chamber that the court may exercise jurisdiction over the alleged deportation of Rohingyas from Myanmar to Bangladesh, ICC Prosecutor Fatou Bensouda has opened a preliminary examination into the situation pursuant to Article 53(1) of the Rome Statute. During the preliminary examination process, the Prosecution will examine all available information to ascertain if sufficient grounds exist to launch a full-fledged investigation. Article 53(1) requires that in deciding whether to launch a preliminary examination, the Prosecution must ascertain that principles of jurisdiction, admissibility and the interests of justice are met. In her statement, the ICC Prosecutor referred to the numerous communications and reports received from 2017 which will form part of the basis in factual and legal considerations. While the central question before the ICC Pre-Trial Chamber was the deportation of Rohingya from Myanmar to Bangladesh, Ms Bensouda stated that the court’s jurisdiction also extends to other potential crimes, including alleged coercive measures which may constitute crimes against humanity which fueled the subsequent forced displacement to Bangladesh. On 6 September 2018, the Pre-Trial Chamber found by a majority that the court has jurisdiction over the deportation of Rohingyas from Myanmar to Bangladesh. The ruling came after the ICC Prosecutor filed a request pursuant to Article 19(3) of the Statute asking the Chamber to determine whether cross-border deportation from a non-member state to a member state fell under ICC jurisdiction. The Chamber invited submissions from amici curiae, and the relevant parties expressed their respective submissions. However, the government of Myanmar has criticised the decision and refused to officially respond. (ICC, Press Release)
Trial Chamber rejects Bemba defence request to weigh in on his poll ban
The ICC Trial Chamber ruled on 14 September on the request made by the Bemba Defence concerning the decision of the DRC’s Constitutional Court delivered on 3 September 2018 which barred him from holding political office and thus running for president. The Trial Chamber rejected part of the Defence’s request, deferred part of its decision and allowed part of the request. The Defence argued that the decision of the DRC’s Constitutional Court finding Mr Bemba ineligible for the office of president due to his conviction by the ICC for interference with witnesses and corruption prior to the delivery of the sentencing verdict violated a number of legal principles. It submitted that punishing Mr Bemba for the crime of corruption in domestic proceedings while the Appeals Chamber upheld his conviction for the very same crime in the proceedings before the ICC breached the ne bis in idem principle. The Chamber rejected this argument, stating that the provisions in the ICC Rules of Procedure and Evidence governing this apply solely to the proceedings before the ICC as opposed to subsequent domestic prosecution. The Chamber further agreed with the Prosecution that “it is for the competent domestic authorities to regulate their own electoral proceedings.” However, it accepted the Defence’s request to permit the submission of certain materials relating to the decision by the DRC court. It deferred the Request with respect to whether, if at all, it would take the DRC Decision into account in the context of re-sentencing Mr Bemba. The Trial Chamber subequently sentenced Mr Bemba to a year in prison in its re-sentencing judgment issued on 17 September 2018 and a fine of EUR 300,000 to be paid within three months from the date of the re-sentencing judgment. The prison sentence was considered to be fulfilled by time already served by Mr Bemba. (ICC Trial Chamber Decision)
ICC Trial Chamber VII delivers its re-sentencing decision in the Bemba et al. case
On 17 September 2018, the Trial Chamber VII (the Chamber) of the International Criminal Court delivered its decision re-sentencing former Congolese vice-president Jean-Pierre Bemba Gombo for offences against the administration of justice. Mr Bemba was sentenced to one-year imprisonment and a fine of EUR 300,000. Two co-accused were also re-sentenced: Aimé Kilolo Musamba and Jean-Jacques Mangenda Kabongo. They were sentenced each to a total of 11 months imprisonment. Mr Kilolo was further fined EUR 30,000. The Chamber ordered the deduction from the sentences of the time they had each spent in detention. The Chamber, therefore, considered the sentences of imprisonment as served. The fines were ordered to be paid to the Court within 3 months of the date of sentencing and are to be transferred to the Trust Fund for Victims. On 19 October 2016, Mr Bemba and four co-accused were found guilty of offences against the administration of justice related to intentionally corruptly influencing witnesses and soliciting, inducing or assisting the false testimonies of 14 defence witnesses in the main case against Mr Bemba at the ICC. Mr Bemba was convicted in the main case, but these convictions were later overturned by the Appeal Chamber. In the case relating to the administration of justice, Mr Bemba was originally sentenced on 22 March 2017 to the one-year imprisonment and a fine of EUR 300,000. The court ordered that Mr Bemba’s sentence be served concurrently with that of the main case and did not declare his time spent in custody as time already served on that sentence. After a successful appeal, the Appeal Chamber ordered that Mr Bemba, Mr Kilolo and Mr Mangenda be re-sentenced, noting that Mr Bemba’s appeal against conviction and sentence for the main case was still pending. (ICC press release, Decision, Summary, France 24)
OHCHR Commission in South Sudan calls for the establishment of a hybrid court
On 17 September 2018, the Commission for Human Rights in South Sudan (the Commission) called on the South Sudanese government to establish a hybrid court to investigate and prosecute alleged crimes during the country’s civil war. The call comes following the signing of the Revitalized Agreement on the Resolution of the Conflict in the Republic of South Sudan on 12 September 2018, which provided for the creation of a hybrid court of South Sudan to “try individuals bearing responsibility for violations of international law and/or applicable South Sudanese law, committed from 15 December 2013 through to the end of the transitional period.” The Commission urged the African Union and the Government and South Sudan to set a time-frame for the establishment of the court and highlighted the importance of accountability and justice in the peace process. Some of the alleged acts which may amount to crimes committed during the period of the civil war include ethnic cleansing, sexual violence and the use of child soldiers. (OCHCHR, Al Jazeera, Revitalised Agreement)
New Kosovo Tribunal Prosecutor signs solemn declaration of office
On 11 September 2018, newly appointed Specialist Prosecutor, Jack Smith signed a declaration that he would exercise his role independently, impartially and conscientiously. Smith has succeeded former Specialist Prosecutor David Schwendlman, who stepped down in March 2018. Smith was selected after a selection process organised by the European Union, and was appointed by the European Union Rule of Law Mission is Kosovo mission head, Alexandra Papadopoulou. Smith is a US prosecutor with experience in political investigations and international criminal investigations. (SCPKS).
Victims of anti-drug campaign in the Philippines file further complaint at ICC against Duterte
On 28 August 2018, it was reported that a complaint had been filed with the International Criminal Court against Rodrigo Duterte, the president of the Philippines, for crimes against humanity. The complaint was filed by the families of eight alleged victims of the government’s ‘war on drugs’. A lawyer representing the group reportedly said that Duterte was personally liable for ordering state police to undertake mass killings. A similar communication was filed with the ICC in April 2017. The ICC Prosecutor started a preliminary examination into the situation in February 2018. (Voice of America, PhilStar, Reuters)
Sri Lanka to appeal to UNGA and UNHRC for ‘concessions’ on war crimes against troops
It has been reported that Sri Lanka will ask the United Nations General Assembly to drop demands for state accountability over alleged war crimes committed by Sri Lankan armed forces during the civil war between the government and Tamil separatists. According to government figures around 100,000 people were killed and 20,000 remain missing as a result of the war. In a 2015 resolution, the UN Human Rights Council demanded that Sri Lanka establish an independent war crimes investigation. It has until March 2019 to do so. The 73rdsession of the UN General Assembly meets from 18 September to 5 October 2018 in New York. (New Indian Express, Channel News Asia
Aung San Suu Kyi admits mistakes made in the handling of Rohingya crisis
Myanmar’s State Counsellor, Aung San Suu Kyi, speaking at the World Economic Forum, has stated that the situation in Rakhine State that led to the forced displacement of more than 700,000 Rohingya Muslims ‘could have been handled better’. Additionally, when Suu Kyi was questioned on the jailing of two Reuters journalists she noted that they had been jailed for breaches of the Official Secrets Act, and not to suppress freedom of speech. An independent United Nations investigation has called for leaders of Myanmar’s military to be investigated and prosecuted for potential crimes against humanity. (CNN).
Photo: Defence Counsel for Dominic Ongwen Krispus Ayena Odongo confers with Assistant to Counsel Thomas Obhof. (ICC-CPI/Flickr)
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