In this week’s review, news about three ICC Appeals Chamber Judgments scheduled for 8 March (Bemba et al., Katanga and Al-Mahdi), Government of Comoros files second review application of ICC Prosecutor’s decision not to investigate, Ntaganda ends defence evidence, Uganda on its failure to arrest Bashir, Netherlands Parliament recognises Armenian genocide, and more
Nobel women call for ICC charges against Myanmar
On 27 February, three Nobel laureates denounced the actions of the government in Myanmar against the Rohingya and warned that Myanmar’s de facto leader Aung San Suu Kyi could face charges by the International Criminal Court (ICC). The three women, Tawakkol Karman of Yemen, Mairead Maguire of Northern Ireland and Shirin Ebadi of Iran, spoke out while visiting the refugee camps in southeastern Bangladesh’s Cox’s Bazar district. Nearly 700,000 Rohingya refugees have fled Myanmar during what have alleged to have been widespread rape and killings by security forces, and what the United Nations has described as “ethnic cleansing”. To date, the ICC has not launched an investigation into the situation in Myanmar. (World Politics Review, BD News 24, Radio Free Asia)
ICC Appeals Chamber to deliver Judgment on appeal for Bemba et al., contempt case
In the contempt case of The Prosecutor v. Jean-Pierre Bemba Gombo et al. at the International Criminal Court (ICC), the Appeals Chamber announced that, on 8 March 2018, it will be issuing judgments on appeals against the judgments and sentences rendered by the Trial Chamber. On 19 October 2016, Trial Chamber VII found all five accused guilty of committing offenses against the administration of justice in a separate case before the ICC: The Prosecutor v. Jean-Pierre Bemba Gombo (Main Case). Specifically, it held that the accused had committed various offences related to the testimonies of 14 defence witnesses in that case, including corruptly influencing those witnesses and presenting their false testimonies to the court. (ICC AC Order)
Judgment on appeal on Katanga reparation order scheduled for 8 March
In another case before the ICC, The Prosecutor v. Germain Katanga, the Appeals Chamber will deliver a judgment on 8 March 2018 on appeals against an order for reparations to victims issued by Trial Chamber II. In that order, the judges awarded 297 victims with symbolic compensation of USD 250 per victim, as well as collective reparations in the form of support for housing, income-generating activities, education aid, and psychological support. The order followed a judgment against Germain Katanga, finding him guilty of crimes against humanity and war crimes related to a 2003 attack by the Ngiti militia in the Democratic Republic of Congo. (ICC AC Order)
Scheduling order for judgment on appeal of Al Mahdi reparations order
The ICC Appeals Chamber will be holding a third hearing on 8 March 2018, in the case of The Prosecutor v. Ahmad Al Faqi Al Mahdi. In that case, the Appeals Chamber will issue a judgment on the Legal Representative of Victims’ appeal against a reparations order issued by Trial Chamber VIII in August 2017, concluding that Mr Al Mahdi is liable for EUR 2.7 million in individual and collective reparations for the community of Timbuktu. In September 2016, Mr Al Mahdi was found guilty of the war crime of intentionally directing attacks against historic monuments and religious buildings in Timbuktu in June and July 2012. (ICC AC Order)
Comoros files second review application after Prosecution’s decision not to open an investigation into attack on the Gaza Freedom Flotilla
On 23 February, the Union of Comoros filed the second application pursuant to Article 53(3)(a) of the Rome Statute before the ICC Pre-Trial Chamber I for judicial review of the two Decisions, taken by the OTP on 29 November 2017, not to proceed with investigating the 31 May 2010 Israeli raid on a humanitarian aid flotilla bound for Gaza Strip. On 31 May 2010, seven-passenger vessels under the territorial jurisdiction of Comoros, Greece and Cambodia were carrying humanitarian aid to the Gaza Strip when they were allegedly attacked by the Israeli Defence Forces (‘IDF’) in international waters. During the incident, nine passengers aboard the Comoros-registered vessel the MV Mavi Marmara were killed, dozens were wounded, and following the arrest by the IDF, some of the passengers were allegedly subjected to torture and inhuman treatment.
The Union of Comoros referred the situation to the ICC OTP on 14 May 2013, characterising the alleged IDF actions as war crimes and crimes against humanity. The OTP issued its First Decision on the crimes allegedly perpetrated by the IDF on 6 November 2014, finding a lack of reasonable grounds to proceed with the investigation, following which Comoros requested the Pre-Trial Chamber to judicially review the OTP’s decision. The Pre-Trial Chamber found the OTP erred in applying the correct legal standard in the determination of the gravity of the offences allegedly committed and in its determination on whether to proceed with the investigation, and ordered the OTP to reconsider its Decision. Subsequently, the Government of Comoros, joined by the victim applications submitted by the Legal Representatives of the Victims, presented the OTP with newly collected evidence demonstrating the gravity of the injuries incurred by the victims. On 29 November 2017, the OTP issued its Final Decision dismissing the requests and declining to open an investigation into the referred Situation.
The second application alleges that there were procedural flaws made by the OTP by not following the Chamber’s Decision and that an incorrect standard was applied in determining whether to open the investigation. The application also challenges the errors in the assessment of the scale, nature, impact as well as the manner of the commission of the alleged crimes and erroneous considerations of the potential perpetrators of the crimes. (ICC – Comoros Application, ICC – OTP Decision, ICC – PTC Decision)
Ntaganda provides notification of end of Defence evidence
The ICC Trial Chamber VI was notified on 23 February 2018 of the closure of the Defence’s presentation of evidence in the case of The Prosecutor v Bosco Ntaganda. Ntaganda is the former deputy chief of staff and commander of operations of the Patriotic Forces for the Liberation of Congo (FPLC). He has been on trial since September 2015 on 13 counts of war crimes and five counts of crimes against humanity committed in Ituri Province in the Democratic Republic of the Congo. It is alleged that Ntaganda is criminally responsible under various modes of liability, including direct participation, indirect co-perpetration and command responsibility. (Notice)
Uganda submits letter on failure to arrest Al-Bashir to ICC
A letter from the attorney general of Uganda was transmitted on 23 February 2018 to the ICC Pre-Trial Chamber in the case against Sudanese president Omar Al-Bashir. The letter, which was filed as a confidential annex, relates to the Pre-Trial Chamber’s invitation to Uganda to provide submissions regarding its failure to arrest Al-Bashir and surrender him to the Court while he was present in Uganda in November 2017. Arrest warrants were issued against Al-Bashir in 2009 and 2010 in relation to five counts of crimes against humanity, three counts of genocide and two counts of war crimes. Uganda is one of several State Parties previously referred by the Court to the Assembly of States Parties and the UN Security Council for failing to arrest and surrender Al-Bashir while he was present in their territories. (Transmission of letter, 2016 PTC Decision on Uganda)
Dutch Parliament takes decision that 1915 Armenian massacre was genocide
22 February 2018, all but three of the Netherlands 1lawmakersers voted to recognise the mass killing of Armenians in 1915 as a genocide. Turkey has condemned the decision by the Dutch. However, the Netherlands joins dozens of other countries who acknowledge the event as being a genocide. (Reuters, WashingtonPost).
UN Commission on Human Rights in South Sudan identifies 40 military officers suspected of war crimes and crimes against humanity
The UN Commission on Human Rights in South Sudan has have identified at least 41 South Sudanese senior military officers and government officials who may be responsible for war crimes and Crimes against Humanity. Its report takes an additional step in naming potential perpetrators to that of previous UN reports which only identified crimes, rather than perpetrators. The crimes stem from South Sudan’s civil war, which broke out in 2013. The war has seen South Sudan split largely along ethnic lines, and the conflict has involved, according to the UN report, “appalling instances of cruelty against civilians”. Commission member, Andrew Clapham described a “clear pattern of ethnic persecution”. In order to hold those responsible accountable, the establishment of a hybrid court is recommended to be set up by the South Sudanese government and the African Union. However, the creation of such a court has been stalled by failed peace deals. Elections are due to occur in South Sudan this year, though other states are calling for the warring sides to observe a ceasefire before the voting commences. (CapitalNews, TheGuardian, Reuters).
Argentinian army general convicted of crimes against humanity dies
Former Argentine army general Luciano Benjamín Menéndez, who was convicted of crimes against humanity for his role in Argentina’s Dirty War, died this week at the age of 90. Known as “the Hyena,” Mr Menéndez was sentenced 12 times to life in prison for kidnapping, murdering, and torturing hundreds of opponents and dissidents of Argentina’s military regime. It is estimated that, over the course of the Dirty War, the military killed approximately 30,000 people; Mr Menéndez held the position of military commander for ten Argentinian provinces between 1975 and 1979. (BBC News)
African Court on Human and People’s Rights 48th Session
The 48th Ordinary Session of the African Court on Human and Peoples’ Rights (AfCHPR) will run between 26 February and 23 March 2018. During that time the court will examine 15 applications on cases and disputes submitted to it concerning the interpretation and application of the African Charter on Human and Peoples’ Rights, the Protocol of the Court and other relevant human rights instruments. The AfCHPR meets four times per year in Ordinary Sessions but may hold additional Extraordinary Sessions. At present, 30 African states have ratified the Protocol of the Court. (African Court website, Peace FM Online, Modern Ghana)