Archive for category Balkans
U.K. threatens Sri Lanka with international inquiry: The U.K. Secretary of State for Foreign and Commonwealth Affairs, William Hague, warned Sri Lanka that if it did not investigate allegations of sexual violence committed by government forces during its 26-year civil war it would be subject to an international inquiry. Hague warned the country that it had until the Human Rights Council met in March to conduct an independent and credible investigation. Sri Lanka is one country that has not yet signed the U.K.’s declaration to end sexual violence during conflict. (Sunday Times).
Bosnian Serbs arrested for CAH: The Bosnian prosecution office has charged nine suspects with crimes against humanity related to the country’s 1992-1995 civil war. The nine Bosnian Serb policeman allegedly “expelled, deported, illegally imprisoned, tortured, or killed non-Serbian civilians . . . in a systematic campaign against the Muslim and Croatian populations.” Nearly 100,000 died and millions were replaced as a result of the civil war. (Radio Free Europe Radio Liberty).
Bemba restrictions lifted at ICC: An ICC judge has ordered the immediate lifting of detention restrictions placed on Jean-Pierre Bemba and his recently imprisoned lead defense counsel, Aime Kilolo-Musamba. During detention, the two had been restricted to 30 minute phone calls, one hour monitored visits with family, and an initial 72 hour of no contact. Bemba argued the restrictions violated his right to counsel and Kilolo said it prevented him from presenting an adequate defense. Kilolo was arrested in November on allegations of witness interference and forged evidence. (Bemba Trial).
ICC investigations flawed, says Kenyan lawyers: Lawyers met in Nairobi on Tuesday, 3 December 2013, to protest ICC Chief Prosecutor Fatou Bensouda’s handling of investigations into Kenya. The lawyers claimed Bensouda and her predecessor forged evidence and relied on unreliable witnesses. One lawyer was quoted as saying: “It appears as though the court was determined to confirm the charges and the prosecution was convinced that there were substantial grounds to proceed with the case even though the investigations were questionable.” The ICC is currently trying Kenyan Deputy President William Ruto and the case against the country’s sitting President will commence in February 2014. (All Africa).
Cooperation between ICTY and Serbia positive: It is expected the chief prosecutor of the ICTY, Serge Brammertz, will report positively to the U.N. Security Council on Serbia’s cooperation with the tribunal on Thursday, 5 December 2013. Brammertz met with officials in Serbia last month “to discuss transfer of documents and access to government archives and witnesses.” It appears the transition of matters between the ICTY and Serbia has gone smoothly and efficiently. Brammertz presents his findings twice a year to the Security Council. (In Serbia).
Bosnian war criminals to be released: A local court that issued judgements in over 100 cases since its establishment in 2005 to aid the ICTY is expected to release hundreds of Bosnian war criminals. In July 2013, the European Court of Human Rights ruled the local court erred in convicting and punishing accused under a 2003 criminal code. The ECHR concluded the court should have been applying a less stringent 1976 statute that was in force at the time the crimes were committed. The local court will now need to schedule retrials. (The Malay Mail).
Indonesia offers support to Cambodia and Thailand after ICJ verdict: Indonesia has pledged to aid Cambodia and Thailand as the two countries carry out the ICJ’s recent decision concerning the ownership of a Hindu temple. Indonesia stated it was “ready to assist in whatever means if both countries ask for its support in implementing the ICJ order.” In November 2013, the ICJ granted Cambodia ownership of the temple located near the Cambodian-Thai border. (Phnom Penh Post).
Sierra Leone Residual Court elects Kenya’s Wiki as President: Kenya’s Phillip Waki was elected President of the Residual Special Court for Sierra Leone on 3 December 2013. Waki previously served as an alternate appeals judge at the SCSL and sat on the Kenyan Court of Appeals and High Court. Justice Jon Kamanda of Sierra Leone was elected as Vice President. (The Star).
Bensouda says ICC judicial institution only: The ICC will remain free from political interference, says ICC prosecutor Fatou Bensouda. Speaking at the ICC Assembly of States Parties last week, Bensouda said the court is an independent party and will implement amendments to the rules of procedure and evidence passed by the ASP. The ASP decided last week to amend the rules to permit Kenyan President Uhuru Kenyatta and Deputy President William Ruto to be represented by their attorneys during proceedings in The Hague. (All Africa).
New Sierra Leone Residual Court: The legacy of the Special Court of Sierra Leone was handed over to the government on Monday, 2 December 2013. The government will begin operating the Residual Court and continue matters of the SCSL, such as the case against former Armed Forces Revolutionary Council leader Johnny Paul Koroma. Nearly three million dollars has been made to the Residual Court by countries including the Netherlands and America. Former Prosecutor and now American Ambassador at Large for War Crimes Stephen Rapp said the new Court was “an important component in the justice system.” (Awoko).
HRW report focuses on Habre: On Tuesday, 3 December 2013, Human Rights Watch released a report charging the former dictator of Chad, Hissene Habre, with “systematic abuses.” It is reported the former dictator “directed and controlled political police, who tortured and killed those who opposed him or those who simply belonged to the wrong ethnic group.” Habre is being tried by a special court in Senegal for crimes against humanity and war crimes related to his 1982-1990 rule. (UPI).
ICTY 20th anniversary: ICC President Theordor Meron spoke at a conference in Bosnia last week celebrating the 20th anniversary of the ICTY. Meron faced protestors and victims of the early 1990s Bosnian War who displayed signs reading “R.I.P Justice.” Many protesters voiced disappointment in the court’s recent decisions to acquit of all charges senior leaders of the Yugoslav and Serbian army. Despite the opposition, Meron defended the tribunal and stated its work had “exceeded expectations.” (Institute for War & Peace Reporting).
Congolese soldier to remain at ICC; single judge rules: On 18 November 2013, an ICC judge denied release from court custody a Congolese military leader accused of crimes against humanity and war crimes. Bosco Ntaganda argued his voluntary surrender for two arrest warrants and his lack of travel documents showed his commitment to remain in The Hague and cooperate fully with the ICC. The Single Judge rejected these arguments and found Ntaganda’s “prior ability to escape for such a lengthy period of time, until the moment of his choosing, enhances his motivation to flee when the circumstances allow.” Ntaganda faces charges for enlisting child soldiers and committing crimes of rape, murder and slavery during the 2002-2003 Congolese conflict. (All Africa).
ECCC Chamber rules second trial for Khmer Rouge leaders “imperative”: On Monday, 25 November 2013, the ECCC’s Supreme Court Chamber held it was “imperative” to commence as soon as possible the next trial against Khmer Rouge senior leaders Nuon Chea and Khieu Samphan. The Chamber found that any delay in trying the two leaders may violate the right to a speedy trial and create issues for continued pre-trial detention. The Chamber noted concerns of “financial malaise” by the ECCC was “irrelevant and inappropriate.” The two senior leaders face charges of genocide in the next trial. (The Cambodian Daily).
Painful visit to Bosnian mass grave for ICTY President: ICTY President Theodor Meron visited a mass grave in Bosnia this Monday, 25 November 2013, where the remains of at least 430 unidentified Bosniak and Croat victims have recently been excavated. Many of the victims were killed in concentration camps and home searches by Serbs during the early 1990s war. Meron, a Holocaust survivor, said it was “very difficult to speak at [a] place where one stands face to face with the horror a man can do to another man.” (Springfield News-Sun).
Bensouda requests additional funds for ICC operations: ICC Prosecutor Fatou Bensouda has asked the ICC Assembly of States Parties to approve an additional Sh2.3 billion for next year’s operations. Bensouda said the increased funding was necessary to “carry out deeper investigations to meet the required threshold of proof.” Tiina Intelman, President of the ICC Assembly of States Parties, said an increase in the Court’s budget for operations is a process that requires either an amendment to the Rome Statute, which takes time, or a change to the rules, which has a more immediate effect. (All Africa).
Trinidad’s Henderson appointed ICC judge: The Assembly of States Parties elected Geoffrey Andrew Henderson of Trinidad and Tobago to the ICC. Henderson, a graduate of the University of West Indies Law Faculty and the Sir Hugh Wooding Law School, takes the seat of recently named Trinidad President Sir Anthony Carmona. Henderson’s term will end on 10 March 2021. (Carib Journal).
Bemba Case faces arrests, allegations of witness tampering: The has announced that four high level Congolese people have been arrested for alleged witness tampering in the war crimes trial of former Congolese vice president Jean-Pierre Bemba. It is alleged that the suspects were part of a corruption network formed to influence and bribe witnesses. (For additional information, please click here.) (UN News, Google News).
ICC confirms Senussi trial to continue in Libya: The ICC has rejected an appeal by Senussi to have his domestic trial in Libya suspended. The ICC has stated that the continuation of a domestic trial in Tripoli will not interfere with the case the ICC has against Senussi. (Saudi Gazette).
Kenyan Government indicates plans to investigate additional PEV cases: The Kenyan government is in the process of establishing a team of special investigators to deal with Post Election Violence. 5,000 pending PEV cases have already been referred to the police for fresh investigations. (All Africa).
HRW reports ongoing war crimes in CAR: HRW has reported that violence in CAR is still bubbling to the surface. General Hamat claims to be fighting a defensive war against a rebel group known as the anti-balaka. According to HRW the general is wreaking havoc in many villages and it is not clear if there is a legitimate rebel force amassing or if those who are fighting back are just frightened locals. (HRW).
Alleged Croatian war criminal wins extradition appeal, remains in Australia: Serb military commander, Dragan Vasiljkovic, will be allowed to stay in Australia and avoid extradition to Croatia for questioning in connection with war crimes. Mr. Vasiljkovic has been found to have committed crimes of torture and rape and has admitted to commanding a deadly assault on the Village of Glina in Croatia. (The Australian).
Seselj verdict delayed at ICTY: On 17 September 2013, it was reported the ICTY’s expected 30 October 2013, judgment against former Serbian leader Vojislav Seselj has been delayed. The news comes less than one month after the removal of Judge Frederik Harhoff for authoring a letter criticizing the Tribunal’s prior acquittal of senior Serbian officials. Seselj is charged with aiding and abetting the commission of war crimes and crimes against humanity during the early 1990s Bosnian War. (Washington Post).
First prosecution witness testifies at ICC Ruto trial: The first of 22 scheduled prosecution witnesses began testifying this week in the ICC case against Kenyan Deputy President William Ruto and radio journalist Joshua arap Sang. The protected witness, designated Witness 536, described the day she was locked in a burning church by armed members of Ruto’s political party after the disputed 2007 Presidential election. It is estimated that 36 people were burned “beyond recognition” in the church fire. (BBC News Africa).
New ICJ Nicaragua v. Columbia case: Nicaragua has filed a new action against Columbia in the ICJ seeking sovereignty of the San Andres archipelago. In November 2012, the ICJ awarded Nicaragua the territorial waters surrounding the archipelago, however, the Court granted Columbia continued control over the islands. Nicaragua recently announced its plans to drill for oil in the Caribbean and the San Andres islands are potentially rich in natural resources. (BBC News Latin America & Caribbean).
ECCC secures loan to pay striking staff: The ECCC has obtained a loan from the U.N. to pay its national staff and end the second strike over unpaid wages this year. The U.N. stressed it was the Cambodian government’s sole responsibility to cover national salaries and expects the country to pay back the loan. The ECCC is currently trying two senior leaders of the Khmer Rouge, Nuon Chea and Khieu Samphan, for crimes against humanity. Closing statements are expected to begin mid-October. (Google News).
Mollah verdict triggers strikes in Bangladesh: Protests erupted in Bangladesh yesterday, 17 September 2013, after the Supreme Court found senior leader of the Jamaat-e-Islami, Abdul Quader Mollah, guilty of crimes against humanity. The Supreme Court sentenced Mollah to death for ordering the killing of a Pakistani family during the 1971 independence war. Supporters of Mollah, convinced the ruling was “politically motivated” and prejudiced, called for a 48-hour nationwide strike. Many injuries have been reported as protestors threw homemade bombs in the streets and police fired tear gas into the crowds. (The Kansas City Star).
Rwandan extradition hearing on U.K.’s agenda: A hearing to decide whether the U.K. may legally extradite five men to Kigali has been scheduled in London for 28 October 2013. The five men are suspected of committing serious violations of international law during the 1994 Rwandan Genocide. Past attempts to extradite the men were unsuccessful following a number of ICTR decisions questioning the credibility of Rwanda’s judicial system. However, after several reforms and the introduction of a special chamber, the country’s ability to try cases of genocide and crimes against humanity has been recognized by the ICTR and the European Court of Human Rights.
ICTY judge seeks clarification of removal: ICTY Judge Frederik Harhoff has requested review of the 28 August 2013, decision removing him from the trial of Vojislav Seslj after a private letter of his criticizing the Tribunal was leaked. Specifically, Harhoff aims to find out whether the appellate chamber considered a memo he wrote to the judges explaining his reasons for the letter. “Haroff claims that by the law and the existing rules, he had the right to express his opinion about the case before the panel of judges.” The Prosecution has also filed a motion arguing the judges erred in removing Harhoff.
Guatemalans file with international court over mining law: The Western Peoples’ Council, a body serving Guatemala’s indigenous communities, filed a complaint with the Inter-American Commission on Human Rights this week contesting Guatemala’s interpretation of the 1997 Mining Law. In March 2013, Guatemala’s Constitutional Court found that the Mining Law did not require the government to inform or consult with indigenous peoples before taking legislative mining action that impacted their rights and lands. The Western Peoples’ Council argued the ruling violated numerous international and national laws and was in contradiction to the Court’s 2011 decision finding “consultation [was] a constitutional right.”
U.K. says Security Council unlikely to reach agreement on Syrian crises: U.K. Foreign Secretary William Hague announced the U.N. would continue discussing the appropriate response to chemical weapons use in Syria. Hague, however, expressed doubt in the Security Council’s ability to pass a resolution given Russia and China’s known opposition. The Foreign Secretary urged the international community to take the legal and proportionate action necessary to prevent any more war crimes in Syria if the U.N. discussions end with no agreement.
Karadzic moves ICTY for in person interviews: After being denied by the ICTY Registry on 21 August 2013, former Bosnian Serb leader Radovan Karadzic filed a motion with the Tribunal requesting permission to be personally interviewed by a German journalist. Karadzic argued the Registry’s refusal violated his freedom of expression and was disproportionate to the rights afforded other parties who are permitted to engage in direct contact with journalists. Karadzic has provided written interviews to numerous media outlets in the past, however, this particular German magazine has refused to publish the former leaders non face-to-face responses.
Venezuela’s defeated Capriles to bring action at IACHR: Venezuelan politician Henrique Capriles intends to submit a motion to the Inter-American Commission on Human Rights challenging his 1.49 percent defeat in the 14 April 2012, presidential election against Nicolás Maduro. The Commission has the authority over state parties to review challenges, provide recommendations, and refer appropriate matters to the Inter-American Court of Human Rights. Of note, the Venezuelan government withdrew from the Commission last year, effective 10 September 2013, because it viewed the Commission and the Court as merely a servant of the United States.
Witnesses in ICC’s Ruto case threatened: It has been reported that five prosecution witnesses in the ICC case against Kenyan Deputy President William Ruto and radio journalists Joshua arap Sang have been relocated outside the country as a matter of safety. Seven other witnesses are currently being protected in Kenya unless the situation worsens. The witnesses claimed to have “received threatening phone calls and text messages warning them about their participation in the trial.” The ICC declined to comment.
Lawyers demand ICC trial of Gadhafi’s former “spy chief”: Defense counsel for Abdullah Senussi requested this week that local proceedings be postponed and Libya’s former military intelligence chief be surrendered to the ICC. Senussi’s lawyers argued the persistent political pressure from the militia, the threats and assassination of judges, and the latest practice of “revenge death sentences” would prevent Libya from conducting a fair trial. An arrest warrant for Senussi was issued by the Court in 2011 for crimes against humanity allegedly committed during Libya’s civil war. Libya is not currently a state party to the Rome Statute and has repeatedly objected to the ICC’s jurisdiction.
ICC issues Ruto trial schedule and manner of procedure: On 9 August 2013, ICC Trial Chamber V issued a general directive on scheduling and procedure in the case against Kenya’s current Deputy President William Ruto and radio presenter Joshua Arap Sang. The directive, inter alia, reduced the time limit on the prosecution’s case, ordered an updated prosecution witness list, and gave instructions on how to seek site visits or request protective measures. The trial is expected to begin on September 10.
ICTY precedent may jeopardize prosecution of senior officials: The ICTY’s recent acquittals of Momičlo Perišić, Jovica Stanišić, and Frank Simatović has worried many in the international community that a new legal precedent has been established allowing senior officials impunity for past human rights violations. The three Serbian commanders were charged by the Tribunal for aiding and abetting war crimes during the 1990s Bosnian War. However, the judges found in each case that the prosecution failed to provide evidence showing the accused “specifically directed” subordinates to commit crimes. International law experts fear the Tribunal’s interpretation of the requisite mental state for aiding and abetting could make it extremely difficult to hold senior officials responsible. This could include former Liberian president Charles Taylor who was convicted and sentenced last year to 50 years imprisonment. Taylor’s appeal is pending in the ICTY’s sister tribunal.
Investigations into Syria chemical use delayed: The U.N. team specifically tasked with investigating chemical weapons use in Syria has been delayed in entering the country. Deputy spokesman for the U.N., Eduardo del Buey, announced on 13 August 2013, that “details [were] being worked out” before the Syrian government would allow the team to visit five sites allegedly attacked with chemical weapons. According to del Buey, the U.N. team conducted final preparations for the Syrian investigation this past weekend.
Krstic cleared of ICTY contempt charge: On Thursday, 18 July 2013, the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) acquitted Radislav Krstic of contempt of court. Krstic, who was subpoenaed as a key witness in the case of Prosecutor v. Radovan Karadzic and expected to testify in January 2013, refused to testify on account of his poor mental health. He was charged with contempt of court and tried this past May. On Thursday a majority of the ICTY Trial Chamber deemed Post Traumatic Stress Syndrome, which Krtic asserted as a defense, to be adequate grounds for refusing to testify. Krstic himself was convicted and sentenced in 2004 for aiding and abetting the Srebrenica Massacre. He is serving 35 years in prison.
Kenya Prosecution Case loses additional witnesses: Last week, two prosecution witnesses withdrew from the case against Uhuru Kenyatta at the International Criminal Court. Chief Prosecutor Fatou Bensouda and the Prosecution team released a document last week explaining that two witnesses would no longer be able to testify because of serious security concerns. The loss of the two witnesses highlights ongoing difficulties encountered by the Prosecution team, to craft its case against the Kenyan President-elect. Kenyatta was charged with crimes against humanity, for his involvement in the 2007 post-election violence that killed approximately 1,000 and displaced hundreds of thousands. He is scheduled for trial 12 November 2013.
ICC rejects Libya request to delay Gaddafi transfer: On 18 July 2013 the Appeals Chamber at the International Criminal Court rejected an application by Libyan authorities to suspend the transfer of Saif al-Islam Gaddafi to the ICC for trial for crimes against humanity. The decision came after a request in June of this year, when Libya applied for a delay of Gaddafi’s transfer until his ongoing appeal against the Pre-Trial Chamber’s admissibility decision was issued. Judges had denied Libya’s admissibility challenge, saying a trial at the ICC would not impose an unjust domestic outcome. The ICC on Thursday reminded Libya of its obligation to turn Gaddafi over for international prosecution. (For additional information on this topic, please click here)
Court/Tribunal: International Criminal Tribunal for the former Yugoslavia
Decision Title: Judgment
Chamber: Appeals Chamber
Case Name: The Prosecutor v. Radovan Karadzic
Date: 11 July 2013
Decision Background: The Tribunal accused Radovan Karadzic of having participated in a Joint Criminal Enterprise (JCE) during the Bosnian War with high-ranking Bosnian Serb officials, the object of which was to permanently remove Bosnian Muslims and Bosnian Croats from certain municipalities in Bosnia. The charges accused Karadzic of having committed genocidal acts against Bosnian Muslims and Croats, incident to the JCE.
During the Trial phase, on 11 June 2012, the defendant moved for acquittal on all charges, arguing a lack of evidence to support a conviction on any of the counts. The Trial Chamber found in favor of the defendant, finding that no evidence presented by the Prosecution, taken at its highest value, could support a genocide conviction.
The Prosecution filed an appeal of the Judgment under Article 25, asking the Appeals Chamber to overturn, pursuant to Rule 98 bis, the Trial Chamber’s determination. The defendant responded, arguing that the Trial Chamber’s acquittal should be upheld.
The standard that the Court will use to determine a Rule 98 bis claim, is whether there is evidence presented against a defendant that, if accepted as credible and probative, could lead a reasonable trier of fact to determine the guilt of the accused beyond a reasonable doubt. The Chamber emphasizes this later in the decision, but a finding under this standard is not a finding as to the defendant’s actual culpability. The standard assumes, for sake of determining whether or not there is any basis for the trial continuing, that the evidence presented against a defendant is valid and could show a defendant’s guilt. The Prosecution, at the trial stage, still must actually prove the validity of that evidence, and the defense is always able to challenge the credibility of the evidence presented against him at trial.
The Appeals Chamber also noted that it applies a reasonableness standard when presented with claims of error of fact at the trial level, and will not lightly overturn factual findings made by the Trial Chamber.
Decision Review: The Prosecution appealed the Trial Chamber’s findings on four grounds. In the first ground, the Prosecution submitted that the Trial Chamber erred in law or fact regarding the act of genocide charged against the defendant. Namely, the Prosecution argued that the Trial Chamber erred in its findings regarding the killing, causing serious bodily or mental harm, and the creation of deliberate conditions of life calculated to destroy, which underlie the genocide charge. Specifically, the Prosecution argued that the lower court erred when, in reaching its evidentiary conclusion, it instituted an “impact requirement” for finding acts of genocide – the acts must have been so substantial as to impact the existence of the Bosnian Muslim and Croat populations.
The Appeals Chamber affirmed in part and reversed in part the Trial Chamber’s findings under ground one. The Appeals Court first noted that the acts of genocide and the intent of genocide compose the crime of genocide, and are distinct elements that must be analyzed separately. The Appeals Chamber then determined that the lower court correctly maintained this distinction when reaching its decision regarding the acts of genocide, despite arguments to the contrary by the Prosecution. It found that the Trial Chamber, in fact, had found sufficient evidence to support a finding that acts killing as an act of genocide had occurred against Bosnian Muslim and Croat populations. But, the Appeals Chamber found that the lower court had erred in fact in finding that no evidence showed the act of inflicting serious bodily and harm, when the record documented many instances of sexual violence and beatings against Bosnian Croat and Muslim populations.
Finally, the Appeals Chamber addressed the Prosecution’s contention regarding the lower court’s findings on “conditions of life” deliberately inflicted on target populations, life calculated to bring about their physical destruction, which constitutes an underlying genocidal act. Essentially, the Prosecution argued that, in light of the evidence present on the record, the lower court did not provide a reasoned opinion as to why that evidence was insufficient to support continued charges against the defendant. The Appeals Court disagreed, finding that the lower court had both laid out the legal standard in its opinion, and referenced that legal standard when discussing the evidence in question. It found the Prosecution’s objections that an explicit discussion of the legal standard and reference to all available evidence, to be without merit. Yet it ultimately agreed with the Prosecution that the Trial Chamber erred in finding insufficient evidence, when there was enough evidence in the record, if assumed to be completely valid and credible, to support a finding of culpability.
The Appeals Chamber next addressed the Prosecution’s second and third grounds for appeal, regarding its contention that the Trial Chamber erred in fact in its findings on genocidal intent. The Trial Court had found that the evidence as-is, could not prove beyond a reasonable doubt that those engaging in the JCE had the intent to destroy the Bosnian Muslim and Croat populations in undertaking the aforementioned acts. A major issue regarding this count was how the Trial Court construed intent; specifically, whether the Trial Court erred in looking at the intent behind EACH culpable action, or if they should have looked at intent more broadly – the intent underlying the program of a series of culpable actions. The Appeals Court expressed the opinion that, generally, the Court should look at the evidence taken together to infer mental state, rather than the mental state behind each individual act.
The Appeals Chamber found that the Trial Court used the proper method to assess intent. While the Trial Court initially looked at intent behind each action, its decision shows that it also looked at the evidence as a whole, to determine whether the evidence taken together could prove genocidal intent. The Appeals Court, looking at the language used to reason the Trial Court’s decision, did not find anything improper. Nor did the Trial Court misapply the legal standard for intent to require that a substantial part of the groups were targeted, an error that the Prosecution claimed in its appeal.
The Appeals Court then addressed the Prosecution’s contention that the Trial Court erred in requiring that the actual perpetrators of the violence –and not the defendant himself, as an instigator—carry a genocidal intent, and disregarded evidence of the defendant’s own genocidal intent. The Appeals Court re-iterated the legal standard for a JCE, which states that members of a JCE can be liable even if they were not the actual perpetrators of the crimes, if the crimes can be imputed to the members of the JCE, and those members, in instigating the crimes, possessed genocidal intent. That a non-JCE member who carries out the acts at the behest of the JCE, does not possess genocidal intent, is not dispositive of whether genocidal intent existed and whether it was possessed by members of the JCE and thus whether the crime of genocide existed. The Appeals Chamber also noted that, given the nature of intent, it is not an element susceptible to direct proof, and must rather be inferred from largely circumstantial evidence.
The Appeals Chamber found that the Trial Court, in its decision, made findings regarding evidence of both the genocidal intent (or lack thereof) on the part of the actual perpetrators of the acts, and that of the participants of the JCE, including the defendant. Thus it did not agree with the Prosecution that the Trial Court erred in its analysis of intent. In fact, the Appeals Chamber hinted that the Trial Court used the intent of the perpetrators as part of the circumstantial evidence offered against the defendant. In this, the Appeals Chamber found nothing improper, although it did express a desire that the Trial Court’s reasoning on this point, and on the intent evidence in general, have been clearer and more detailed. The Court likewise rejected the Prosecution’s contention that the Trial Court failed to properly weigh the evidence, given that court’s decision against certain statements made by the defendant that suggest genocidal intent. Rather, the Appeals Court found the lower decision to have properly considered all of the evidence on the record, taking the statements in question along with the other evidence on the record.
The Appeals Court, however, did find issue with the Trial Court’s interpretation of the evidence. Namely, the Appeals Court noted that the statements themselves do or could suggest genocidal intent, a fact that defense counsel had actually concede at trial. Likewise, evidence showed that other JCE members did possess genocidal intent; other indirect evidence, it found, could also support such a conclusion. Reminding that at this stage of trial, for a Rule 98 bis claim, the evidence is assumed to possess its highest level of credibility, the Court found that the evidence on the record could reasonably support a finding of genocidal intent. As such, the Trial Court’s finding to the contrary was in error.
Finally, the Prosecution argued in its fourth ground of appeal that the Trial Court erred in finding that the evidence presented, even if it could not establish JCE liability, could be sufficient to prove other forms of criminal liability. Because the Trial Court’s decisions on the acts and intent under JCE and genocide liability/claims were upheld, however, the Appeals Chamber found that it did not need to address the potential for alternative forms of liability, which assumed that the JCE/genocide findings would be upheld.
To access the full Decision, click here.