In this week’s review, news about the 17th ASP Session, ICC order on Bashir’s travel to Belarus, MICT decision on Seselj’s appeal request, link between Turinabo et al., and Ngirabatware, Oric acquitted, Mexican truth commission and more:
Law group calls for the creation of a criminal tribunal for Myanmar
The Public International Law and Policy Group (PILPG) has released a report calling for the urgent establishment of a criminal tribunal dealing with the situation in Myanmar, or in the alternative a referral to the International Criminal Court (ICC). The report was commissioned by the US State Department and was based on more than 1,000 interviews with Rohingya refugees who fled to Bangladesh. It concluded that were reasonable grounds to believe the Myanmar military committed crimes against humanity, genocide and war crimes against the minority group. Myanmar is not a party to the Rome Statute and, to date, there has not been a referral of the situation by the Security Council to the ICC. However, the ICC Pre-Trials Chamber recently held that the court may have jurisdiction over the crime of deportation as part of that crime occurred in Bangladesh, which is a party to the Rome Statute. More than 700,000 Rohingya Muslims have fled violence allegedly perpetrated by the Myanmar army. (Reuters, PILPG Report)
17th Session of Assembly of State Parties opens in The Hague, 5-12 December 2018
The 17th session of the Assembly of State Parties (ASP) opened in the Hague on 5 December and is due to last until 12 December. The ASP gathers representatives of the ICC state parties, states with an observer status or invited states, as well as selected international and regional organisations and civil society representatives. In combination with the 20th anniversary of the ICC Rome Statute, the participants will discuss the key developments and major challenges faced by the Court, including the Trust Fund for the Victims. State parties will also make decisions and resolutions about the court’s budget and state cooperation. On the opening day, H.E. O-Gon Kwon, President of the ASP, called for more concrete actions instead of “making aspirational, grandiose statements in international fora such as this one.”
Other ICC officials, including the newly elected President Judge Chile Eboe-Osuji, Prosecutor Fatou Bensouda and H.E. Mr Motoo Noguchi; the Board Chair of the Trust Fund for Victims, made their respective speeches and called for more unified and continued support of the ICC. President Eboe-Osuji emphasised the need for financial support in light of the fact that “at $1.7 trillion, the world’s annual military spending is roughly ten thousand times larger than the budget of the ICC.” Ms Bensouda provided an overview of the activities of the Office of the Prosecutor, including newly opened preliminary examinations. In accordance with Article 112 of the Rome Statute, the ASP meets annually in The Hague or at the UN Headquarters in New York. It is the court’s management oversight and legislative body and is composed of representatives of the state parties. It also adopts rules of procedure and evidence and the elements of crimes as well as deciding on budgetary issues and other administrative tasks. (ICC Press Release)
ICC Pre-Trial Chamber request to Belarus for cooperation in the arrest and surrender of Sudanese president Al-Bashir
On 28 November, the ICC Registrar received information regarding a possible visit of the Sudanese president, Omar Al-Bashir, to Belarus. In accordance with the Corrigendum of “Orders to the Registrar concerning actions to be taken in the case of information relating to travel of suspects”, Articles 89(1) and 91 of the Rome Statute, the ICC Pre-Trial Chamber requested the Belarus authorities to cooperate with the ICC in his arrest and surrender if the proposed visit happened. Further, the Chamber requested that Belarus inform the court of any information that may be required under Belarus law in order to execute the requests and inform the court of his surrender. The situation in Sudan was referred to the ICC on 31 March 2005. An arrest warrant for Mr Al-Bashir was issued on 4 March 2009 and was followed by a second warrant on 12 July 2010. Due to the alleged crimes committed in his capacity as de jure and de facto president of Sudan during the period of interest, he was charged with committing genocide by killing members of the Fur, Masalit and Zaghawa ethnic groups, five counts of crimes against humanity including extermination, and two counts of war crimes. Despite numerous requests for cooperation to state parties, Mr Al-Bashir remains at large. Belarus neither signed nor ratified the Rome Statute. (ICC Pre-Trial Chamber II Request)
UN MICT Appeals Chamber rejects Seselj’s request to appeal his Appeals Judgment
On 27 November, the Appeals Chamber of the the International Residual Mechanism for Criminal Tribunals (MICT) rendered its decision on the Request of Vojislav Seselj – a Serbian Radical Party leader who was convicted of the persecution of Croats in the Serbian village of Hrtkovci in 1992 – to be allowed to exercise the right to appeal and to have a deadline set for the Notice of Appeal. Mr Seselj was first charged with the persecution, deportation, and other inhumane acts (forcible transfer) as crimes against humanity in December 2007. On 31 March 2016, a majority of the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) acquitted him of all charges. But the Appeals Chamber ruled on 11 April 2018 that the Trial Chamber had erred in not holding Mr Seselj criminally responsible for a speech he gave on 6 May 1992 calling for the expulsion of the non-Serbian population, as well as for the subsequent violence and intimidation that led to their departure from the area. He was therefore convicted of the above crimes, as well as for committing persecution, based on a violation of the right to security, as a crime against humanity and sentenced to 10 years imprisonment. Mr Seselj sought leave to appeal this second instance verdict arguing that since the Appeals Chamber convicted him of crimes for the first time, he had to be allowed to exercise his fundamental right to appeal. He argued that a failure to grant this right would amount to the gravest possible violation of guaranteed and internationally recognised human and procedural rights. The Appeals Chamber held that not only was there established jurisprudence that the Appeals Chamber may enter new convictions when issuing its final judgement but neither the Statute nor the Rules provide a legal framework for this avenue of relief where a conviction is entered at the appellate stage. Furthermore, it was noted that the ICTY Appeals Chamber had previously stated that it was “satisfied that the existing appeal and review proceedings established under the Statute provide sufficient guarantees to persons convicted before this Tribunal that they have been tried fairly and in accordance with norms of due process”. As such, the Appeals Chamber ruled that since no argument had been made demonstrating deficiencies in the existing procedures for review of appeal judgments or errors in the Appeal Judgement itself, Mr Seselj’s Request to appeal was denied. (MICT Request to be Allowed to Exercise the Right to Appeal, Balkan Insight)
UN MICT Appeals Chamber orders submissions on the effect of the link between Turinabo contempt case and Ngirabatware review proceeding’s timing
On 17 June 2017, the MICT Appeals Chamber granted Mr Ngirabatware’s request for review of his convictions, in view of new evidence and scheduled the review hearing from 24 September 2018 until 28 September 2018. However, Mr Ngirabatware sought additional time on account of the disclosure of voluminous material by the Prosecution originating from the Turinabo et al. case. He suggested that the review hearing be adjourned either until the conclusion of the Turinabo et al. case or at least until the investigation had been completed and the material collected in that case was considered. The Appeals Chamber held that “while the amount of the disclosed material originating from the Turinabo et al. case and its direct relevance to the review proceedings justify granting Ngirabatware additional time to prepare, the indefinite adjournment of the review hearing, in view of ongoing auxiliary proceedings, would neither serve the interests of justice nor the efficient management of the case”. The Parties were therefore ordered to file written submissions as to whether there are grounds for reconsideration of the Review Decision by 16 November 2018. (MICT Order for Submissions)
ICC PTC approves the withdrawal of Yekatom counsel and appointment of new counsel
On 29 November, the Trial Chamber of the ICC, in the case of Alfred Yekatom, granted his request to be represented by counsel in Europe, namely, Mr Stéphane Bourgon, in proceedings before the court and terminated its previous appointment of the Office of the Public Counsel for the defence (the “OPCD”) to represent him. (ICC PTC II Decision on Withdrawal of Counsel)
Bosnian army commander acquitted on retrial
On 30 November, the Appeals Chamber of the Bosnian state court in Sarajevo acquitted former Bosnian army commander Naser Oric of the killing of three Serb prisoners of war and human rights violations in the Bratunac and Srebrenica areas of Bosnia during the war in 1992. The retrial was held after his original conviction was overturned in June 2018 along with fellow soldier Sabahudin Muhic, after the prosecutor complained of procedural violations. The International Criminal Tribunal for the Former Yugoslavia (ICTY) acquitted Mr Oric of war crimes against Serbs in 2008, but he was arrested again in June 2015 in Switzerland on a separate warrant issued by Serbia, which accused him of killing three Bosnian Serb prisoners of war early in the conflict. Mr Oric attempted to challenge the a further trial on the basis of a breach of the principle of non bis in idembut a single judge at the ICTY rejected the argument saying, “the murder charges in the Bosnian indictment fundamentally differ from the murder charges in the Hague indictment with respect to the alleged victims and the nature, time and location of the alleged crime.” (Reuters; Balkan Insight)
Mexico creates truth commission on missing students
Mexico has passed a decree to open a truth commission to investigate the disappearance of 43 students, who were kidnapped from the town of Iguala and killed in 2014, allegedly by the security forces. There have been no high-profile prosecutions as a result of the incident, which shocked Mexico and the international community. Forming a truth commission was a key election promise of Mexican president Andrés Manuel López Obrador who was sworn in on 1 December. (BBC)
UN Team to Commence Investigation of Yazidi Massacre and Other ISIS Atrocities in Iraq in Early 2019
A UN team known as UNITAD will begin investigating alleged war crimes and possible genocide committed by the Islamic State against Yazidi minorities early next year. The investigative team was authorised by a UN Security Council resolution in September 2017, which resolved to bring those responsible for atrocities against the Yazidi to justice. The investigative team has so far focused on administrative and technical work, but will begin gathering evidence on war crimes, crimes against humanity and genocide for use in trials of Islamic State militants in Iraqi courts. More than 200 mass graves containing 12,000 bodies have been found recently and UN rights investigators have documented extreme violence against girls and women. UNITAD will endeavour to secure the trust and cooperation of the Iraqi community to ensure investigations achieve their objective. (VOA News)
New Amnesty Report Condemns Iran for Killing of Thousands of Political Dissidents in 1998 Prison Massacres
Amnesty International has released a report calling for a UN investigation into the alleged execution of thousands of political dissidents in Iraqi prisons in 1988. The report draws attention to the ongoing suffering of families who do not know what happened to their loved ones, and the harassment faced by families who try to uncover the truth. The report states that many of those killed were part of the People’s Mojahedin Organisation of Iran (PMO), a group that opposed the government of the time, or were members of other leftist groups. It also alleges that those responsible for the killings continue to hold positions of power in Iran. Amnesty researcher Phillip Luther has called on Iran to allow professional exhumation of mass graves and DNA identification of the remains, stating that failure to ‘pursue truth and justice’ threatens the rule of law and respect for human rights in Iran. (Amnesty International)
Bosnian Court Finds Former Bosnian Serb Army Soldier Guilty of Wartime Rape, Sexual Slavery
Former Bosnian Serb Army Soldier Milan Todovic has been convicted of sexual slavery and sentenced to ten years in prison by a Bosnian court, for abuse inflicted on a Bosniak woman during the war. The Court found that from December 1992 to March 1993, Todovic confined the woman to a room, sexually and physically abused her, and denied her food, water and heating. Todovic has been ordered to pay the woman compensation of 13,100 Bosnian marks (about 6,670 euros). The verdict can be appealed. (Balkan Insight)
Photos: Jordi Bernabeu Farrús
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