Archive for category ICTR
UN tribunals for Rwanda and the former Yugoslavia will not meet 2015 deadline: Presidents of the UN tribunals to prosecute alleged war criminals involved in the Rwandan and Yugoslavian conflicts have reported that they will fail to meet the deadline imposed by the UN Security Council to complete their prosecutions by the end of 2014. President of the ICTY Theodor Meron told the Security Council that three trials and three appeals will go beyond 2014, with the trial of Ratko Mladic slated to conclude in 2016. President of the ICTR Vagn Joensen said that at least one appeal judgment is expected in July 2015. In 2010, the Security Council passed a resolution requesting that the tribunals complete their work by the end of 2014 and prepare for a transition to a new court that will complete all remaining trials and appeals of the two tribunals.
Lubanga’s appeal for judge’s disqualification is rejected: Convicted war criminal Thomas Lubanga’s request for Judge Sang-Hyun Song to be disqualified from hearing his appeal of his conviction and 14-year prison sentence has been denied by a plenary of judges at the ICC. The plenary unanimously held that Lubanga’s assertion that Song should be disqualified due to public comments was without merit. Specifically, the group held that “the impugned statements, taken in their proper context, would not have led a fair-minded and informed observer…to reasonably apprehend bias.” The judges also found that the statements did not reach the threshold for displacing the presumption of impartiality.
ICC rejects sex abuse victims request to investigate former Pope Benedict XVI: The ICC has rejected a 2011 request from victims of sex abuse at the hands of Catholic clergy to investigate former Pope Benedict XVI and cardinals from the Vatican for alleged crimes against humanity. The victims’ attorneys argued that the Catholic church had maintained a “long-standing and pervasive system of sexual violence” despite promises to identify and oust predators. ICC attorneys informed the victims that “there is not a basis at this time to proceed with further analysis.” Specifically, an ICC official wrote that “the matters described in your communication do not appeal to fall within the jurisdictionof the court.”
ICC rules Gbagbo case admissible: The pretrial chamber yesterday, 11 June 2013, held that former Ivory Coast President Laurent Gbagbo’s case is admissible before the ICC. The Chamber found Ivory Coast has not initiated national proceedings against Gbagbo precluding ICC prosecution. Gbagbo is charged for crimes committed following his defeat in the December 2010 Presidential election. Gbagbo is currently being held at the ICC.
Victims withdraw from Ruto and Sang case: 93 victims have requested withdrawal from the ICC case against Deputy President William Ruto and Joshua arap Sang. The victims letter cited “lost faith in the ICC process” and doubt about the guilt of the accused as reasons. Victim Representative Wilfred Nderitu expressed concern about the disclosure of victim identities but assured the signatories they would continue to be provided with Court protection until voluntary withdrawal was confirmed. Nderitu advised the remaining roughly 600 victims that they had nothing to fear in continuing to participate.
UN Prosecutor warns remaining fugitives to come forward: At a UN press conference in NY on 11 June 2012, ICTR Prosecutor Hassan Bubacar Jallow pressed nine indictees associated with the 1994 Rwandan genocide to turn themselves in. Jallow guaranteed the nine men they would receive a “transparent and impartial” trial. Jallow warned the fugitives they would be unable to escape impunity indefinitely given the establishment of the IRMCT to carry out the ICTR mandate and the preservation of evidence and testimony for future proceedings in absentia. Furthermore, Jallow urged member states to fulfill their international obligations and step up in the search and seizure of the fugitives.
Wife of ECCC accused charged with lying under oath: On Monday, 10 June 2013, ECCC Prosecutor Keith Raynor attacked the credibility of witness So Socheat, wife of former head of state Khieu Samphan. Socheat testified that she and her husband were abandoned after traveling to K-3 with senior leaders, such as Pol Pot, Nuon Chea, and Ieng Sary. Prosecutor Raynor accused Socheat of fabricating the story in an effort to make Samphan appear inferior to the other leaders. Raynor also suggested Socheat devised the story with the help of other witnesses before the trial.
Bangladesh tribunal deems prosecution evidence irrelevant: ICT-1 questioned the prosecution’s motive for including irrelevant information in an investigation officer’s deposition today, 12 June 2013. The judges considered the information time consuming and burdensome to the defense. The prosecution team assured the judges that the information was important and the closing arguments would reveal its relevancy. ICT-1 is prosecuting Salauddin Quader Chowdhury for crimes committed during the Bangladesh Liberation War.
Karadzic seeks subpoena for Mladic to testify in war crimes trial: On 18 April 2013, former Bosnian Serb leader Radovan Karadzic sought a subpoena to compel former Serbian Military Chief Ratko Mladic to serve as a defense witness at this upcoming ICTY. Karadzic argues that Mladic may be a key defense witness and can testify that Karadzic was not aware of the plans that lead to the Srebrenica massacre. Karadzic and Mladic, the alleged chief architects of the atrocities committed by Serbs during the Bosnian war, were originally indicted together, but not stand trial separately. Both men are charged with genocide and other war crimes.
HRW says Senussi has not seen a lawyer nor been told his charges: On 17 April 2013, HRW released a statement saying that Abdullah al-Senussi, Muammar Gaddafi’s intelligence chief, had not seen a lawyer nor been informed of his charges since being in Libyan jail. HRW interviewed Senussi on Wednesday; it was the first visit by an international human rights organization to Senussi’s Libyan jail cell. Senussi is suspected to have played a large role in atrocities committed by the Gaddafi regime; he is also wanted by the ICC for crimes against humanity committed during the Libyan uprising in 2011. Libya, which plans to adopt a democratic constitution this year, hopes to try Senussi at home; human rights activists, however, worry that Senussi will not be able to receive a trial that meets international standards.
Kosovo ex-rebel retried for war crimes: On 18 April 2013, the retrial of Fatmir Limaj, a top ethnic Albanian rebel during the 1998-99 Kosovo War and a current politician, and nine associates began. Limaj plead not guilty to charges of torture and killing of Serbs and Albanians at a detention center in Kosovo. The retrial was triggered when the Supreme Court of Kosovo annulled a verdict of a lower court acquitting Limaj and the others. The lower court was annulled because they had wrongfully thrown out the evidence of a guard who worked at the Kosovo detention camp and had left a diary, but was found dead a month before Limaj’s trial was to begin. British judge Malcolm Simmons is the chair of the panel trying Limaj.
Ruto asks ICC to lift attendance requirement: On 18 April 2013, Kenyan Deputy-President William Ruto asked the ICC to lift its demand that requires Ruto to be present at The Hague whenever his trial was on. Ruto is charged by the ICC with crimes against humanity in relation to the 2007-2008 post-election violence in Kenya. Ruto’s attorney proposed that Ruto be in attendance at the opening, closing, judgment, and any hearing which his attendance is expressly requested; the defense further contended that Ruto will always be able to follow the trial via video link. The defense argued that the Rome Statute only states that an accused shall be entitled “to be present at the trial,” but does not state that attendance is mandatory; Congolese warlord Jean-Pierre Bemba was authorized by the ICC to be absent from his trial on two occasions. Ruto contends that his proposal would allow him to balance his Kenyan constitutional duties with his personal commitment to cooperate with the ICC.
Footage of Mladic shows him telling Muslims to “survive or perish”: On 19 April 2013, the trial of Ratko Mladic continued. Video footage of Mladic was shown where he told Muslim captives that they could “survive or perish.” Contrarily, the defense showed footage of Dutch General Thom Karemans telling Mladic that the Srebrenica Muslims had smuggled lots of weapons into their enclave. Mladic is charged by the ICTY for genocide, crimes against humanity, and taking international peacekeepers hostage between 1992-1995.
STL president confirms that Lebanon will support STL’s response to witness leak: On 18 April 2013, STL president David Baragwanath, finishing a four day tour of Lebanon, stated that he had received assurances that Lebanon would support the STL’s response to recent witness leaks fully. Last week hackers infiltrated a Lebanese newspaper’s website and posted names of STL witnesses on its frontpage. The STL is investigating the 2005 assassination of Lebanese Prime Minister Rafik Hariri; four Hezbollah members have been indicted in the case, but have not been apprehended.
Rwanda and EALA ask for ICTR archive to be transferred to Rwanda: On 18 April 2013, the East African Legislative Assembly supported Rwanda in its effort for ICTR archives to be transferred to Rwanda. The EALA, which is meeting from 16-26 April, has focused on the legacy and implications of the 1994 Rwandan Genocide. For one, the EALA passed a resolution asking the East African Countries summit to call on the UN to establish an International Trust Fund for Survivors of Genocide against the Tutsi.
Rwanda hopes to stop court dispute before UN: On 14 April 2013, Rwanda, the council president for April, announced that it would stop the UN Security Council from praising the International Criminal Court. Rwanda is organizing a Security Council meeting on April 15 to discuss conflict prevention in Africa when traditionally the 15-member body would release a statement. The seven ICC members on the council — Argentina, Australia, Britain, France, Guatemala, Luxembourg and South Korea — insist on acknowledging the work of the court in ending impunity for war crimes. Rwanda said it would not accept a statement which mentions the ICC which it has strongly criticized.
UN debates role of international criminal courts: On 10 April 2013, the United Nations General Assembly today held its first ever debate on the role of the international criminal justice system in reconciliation, with its president stressing the vital part it must play not just in looking back on past atrocities but in bringing former foes together to build a better and more inclusive tomorrow. Over the past two decades various international criminal courts have been set up, either under UN sponsorship or in cooperation with the world body, to judge war crimes and crimes against humanity committed in countries as diverse as the former Yugoslavia, Rwanda, Sierra Leone, and Cambodia.
Luxembourg ratifies: On 10 April 2013, Luxembourg became the fourth State Party of the International Criminal Court (ICC) to ratify amendments to the Rome Statute that were adopted in a historic consensus at the 2010 Review Conference of the International Criminal Court in Kampala, Uganda. The January 15, 2013, ratification brings the controversial amendments another step closer to entering into force. If the requisite number of states ratify the proposed amendments, the ICC’s jurisdiction would dramatically increase in scope, likely having profound global implications for current armed conflicts.
Prosecutions in Guatemala offer hope to survivors: On 12 April 2013, a senior United Nations official announced the welcomed efforts of Guatemalan authorities to investigate crimes of sexual violence that occurred during the country’s 36-year internal conflict, and urged authorities to ensure a fair trial and protections for the witnesses and others involved.
Posted by cdelaubenfels in Admissibility / Primacy, amnesty, AU, CAR, Crimes against Humanity, Fair trial/Accused's rights, Fatuo Bensouda, Gaddafi, Genocide, Human Rights Violations, ICC, ICTR, ICTY, immunity, Investigations, jurisdiction, Liberia, Libya, News about the Courts, Other domestic courts, Rome Statute, South Sudan, Sudan, Truth Commissions, Uganda, Victims, War Crimes on April 4, 2013
Libya seeks to try Senussi: On 3 April 2013, the ICC published Libya’s Admissibility Challenge against Abdullah Al-Senussi pursuant Article 19 of the Rome Statute. The Admissibility Challenge requested that the Court find Libya able and willing to try Al-Senussi in Libya, and as a result of filing the Admissibility Challenge asked that the Court’s outstanding Request for Arrest and Surrender of Al-Senussi be postponed pursuant to Article 95 of the Rome Statute. The ICC indicted Al-Senussi, Muammar Gaddafi’s former spy chief, in June 2011 for crimes against humanity. Al-Senussi is currently jailed in Libya after he was extradited from Mauritania to Libya in September 2012. The Libyan government has said that trying Al-Senussi is an important part of building a democratic Libya based on the rule of law. Al-Senussi’s defense lawyer, however, doubts Libya’s ability to provide a fair trial and may result in the death penalty—which the ICC does not condone. Libya’s Article 19 Admissibility Challenge against AL-Senussi follows Libya’s Admissibility Challenge against Saif Al-Islam Gaddafi which was filed on 1 May 2012 with continuing proceedings on admissibility to date. A decision on the Admissibility Challenge against Saif Al-Islam Gaddafi is expected soon.
United States announces $5-million bounty for Kony: On 3 April 2013, the Obama administration announced a five-million dollar bounty for Joseph Kony, leader of the Uganda rebel group Lord’s Resistance Army, and his top aides. There is an ICC arrest warrant out for Kony for crimes against humanity. Previously the United States had only issued rewards for war crimes suspects wanted by the ICTR and ICTY, this is the first reward offered for suspects wanted by the ICC. Kony, who is accused of ordering widespread atrocities in Uganda since the 1980s, is suspected to be in hiding in the Central African Republic.
United States N.G.O. calls for war crimes investigation into Sudan: On 3 April 2013, a United States based advocacy grouped released a report alleging that Sudan has committed war crimes since 2011 in southern Sudan. The report details testimony and photographic evidence of the burning of farm and grazing land and the destruction of 42 villages and calls for an international criminal investigation. On 2 April, ICC Prosecutor Fatou Bensouda renewed her call for the arrest of Sudan’s President Omar al-Bashir and other suspects wanted by the ICC. Bensouda made the statement at a ceremony marking the beginning of genocide awareness month; Bashir has outstanding ICC warrants for genocide, war crimes, and crimes against humanity. On 1 April, President Bashir announced that the government would release political prisoners; a welcome announcement to human rights advocates, but one met with skepticism. (For additional information on this topic, please click here and here
France announces first trial of a Rwandan for genocide: On April 2 2013, a French court, for the first time, ordered a Rwandan to be tried in national courts for genocide. Pascal Simbikangwa, a former Rwandan army captain who was arrested in France in 2008, is facing charges of complicity in genocide and crimes against humanity. In 2010, France established a court to try genocide and crimes against humanity involving suspects detained in France. France has been unwilling to extradite genocide suspects to Rwanda out of concern for fair trials, but has sent some suspects to the ICTR in Tanzania. The spokesperson for Rwanda’s national prosecution authority praised France’s decision to try genocide suspects.
Slovakia to hold a new trial for 98 year old Hungarian Nazi: On April 2 2013, a Slovak court declared that they will seek the extradition of 98-year old war criminal, Laszlo Csatary, to Slovakia so he can be tried for crimes against humanity. Csatary was convicted in absentia of war crimes in 1948 and was sentenced to death. In order to facilitate with extradition request with Hungary and to comply with current Slovakian law, Slovakia confirmed that it would seek life imprisonment. Between 1941 and 1944, Csatary tortured Jews and sent 16,000 to death camps.
Charles Taylor comments on the death of Moses Blah: On April 2 2013, former Liberian President Charles Taylor commented on the death of Moses Blah, the man who succeeded Taylor. Taylor said he forgave Blah for testifying against him at the ICC where Taylor was found guilty of war crimes and crimes against humanity. Blah had been Vice President under Taylor’s regime and testified to Taylor’s interactions with child soldiers. Taylor said Blah was a victim of an international conspiracy.
Nepal Supreme Court blocks probe into civil war crimes: On 2 April 2013, the Nepalese Supreme Court blocked a new law that would establish a Truth and Reconciliation Commission to probe war crimes committed during Nepal’s ten year civil war. Judge Shushila Karki issued an interim order against the law out of concerns that the commission could allow amnesties for serious human rights violations. More than 17,000 citizens died during the civil war between Maoist rebels and the state.
Posted by cdelaubenfels in AU, Chad, Crimes against Humanity, European Court of Human Rights, Gaddafi, Gender crimes, Genocide, Human Rights Violations, ICC, ICTR, ICTR Residual Mechanism, jurisdiction, Kenya, Libya, Mali, News about the Courts, Other domestic courts, Rome Statute, Rwanda, Sudan, Torture, War Crimes on February 23, 2013
ICC criticizes Chad for not arresting Sudan’s Bashir: On 20 February 2013, Tiina Intelmann, a spokesperson for the ICC, criticized Chad for not arresting Sudan’s President Omar al-Bashir on a visit last weekend. The ICC indicted Bashir in 2009-10 for his connection with crimes against humanity and potentially genocide in Darfur. State parties to the ICC are supposed to help the ICC exercise arrest warrants—Intelmann said that without cooperation it is difficult for the ICC “to carry out its mandate.” Chad is a state party to the ICC, but has welcomed Bashir three times. On 21 February 2013, Kenya’s ambassador in Sudan stated that Bashir is welcome in Kenya at any time. While Kenya’s stance is in conflict with the ICC, it is inline with a resolution by the African Union that members were not supposed to cooperate with the ICC on Bashir’s arrest. Kenya is currently appealing a decision handed down by the International Commission of Jurists stating that it has an obligation to arrest Bashir.(For additional information on this topic, please click here).
Serbian tribunal sentences seven ex-paramilitary for war crimes: On 22 February 2013, a Serbian war crimes tribunal based in Belgrage sentenced seven ex-Bosnian Serb paramilitaries for war time crimes against Roma civilians. The crimes were committed in 1992 during the Bosnian War. The paramilitaries were convicted of raping, torturing, and murdering 28 Romas. The sentences ranged from two to twenty years.
ICTR raises concerns with genocide trials in France: On 19 February 2013, the Registrar of the International Criminal Tribunal for Rwanda, Christopher Bongani Majola, addressed concerns with France’s delay in two genocide cases. The cases of Wenceslas Munyeshyaka and Laurent Bucyibaruta were referred to France in 2007 under the ICTR’s residual mechanisms. Munyeshyaka is accused of genocide and crimes against humanity, but his case has not gone to trial since its investigation was started in 1995. Bucyibaruta was indicted in 2000, but was then freed, and has not been brought to trial. In 2004, the European Court of Human Justice condemned the French courts for their slowness. Majola noted that the French government reassured him that a case was nearly ready for trial. Majola further stated that ICTR is investigating reports that genocide convicts in Mali are living lavishly and even running their own businesses.
Libya Attorney General denies Gaddafi made a court appearance: On 21 February 2013, the spokesperson for the Libyan Attorney General, Taha Bara, denied that Saif al-Islam Gaddafi made an appearance before a national court on February 20. Gaddafi is being held in Zintan, a small Libyan town, while an admissibility claim is being decided which would give jurisdiction to Libya to try Gaddafi—instead of the ICC. In January 2013, Gaddafi had been brought before a local court in Zintan on charges relating to four ICC staff—who were subsequently arrested—visiting him in June 2012. The local court charged Gaddafi with conspiracy to undermine national security, attempting to escape from prison, and insulting the new Libyan flag. Bara stated that there is no confirmed date when Gaddafi will be brought to trial. (For additional information on this topic, please click here).
EU calls on Cambodia to pay more for Khmer Rouge court: On 22 February 2013, the European Union called on Cambodia to provide more funds for the Khmer Rouge war crimes tribunal. The EU stated that it will hold back funds until Cambodia satisfies its contractual obligations. Cambodia states that it has exceeded its monetary commitment to the court. Resignation of judges due to political interference and threats of staff strikes due to unpaid wages have lead to slowed proceedings. The court, established in 2005, has convicted one person in relation to the crimes committed in 1975-1979 by an ultra-Maoist regime responsible for up to 2.2 million deaths.
Court/Tribunal: International Criminal Tribunal for Rwanda
Decision Title: Judgment
Chamber: The Appeals Chamber
Case Name: Justin Mugenzi, Prosper Mugiraneza v. Prosecution
Date: 4 February 2013
Decision Background: The case comes on appeal from the Trial Chamber judgment, which found Mugenzi and Mugiraneza guilty of conspiracy to commit genocide, and direct and public incitement to commit genocide in Butare Prefecture in Rwanda. The Trial Court based its judgment on the defendants’ participation in the removal of Jean-Baptise Habyalimana, a Tutsi, as prefect of Butare, and their presence at a speech given Interim President Theodore Sindikubwabo which included inflammatory remarks against Tutsis.
The defendants appealed their convictions, asking the Appeals Chamber to acquit them or dismiss the indictment against them, or significantly reduce their sentences. The Prosecution argued that the defendants’ appeal should be dismissed entirely.
The defendants appealed their decision on both substantive and procedural grounds. Procedurally, they argued that the trial violated their rights to a fair trial due to undue delay, and the Prosecution’s violation of its disclosure obligations under Rule 68 of the Rules. More substantively, they argued that they were provided insufficient notice regarding the mode of liability sought by the Prosecution, and that the Trial Chamber erred in considering the requisite mens rea for the crimes charged by the Prosecution
Decision Review: The Appeals Chamber reviews only errors of law made by the Trial Court that have the potential to invalidate the lower court’s decision, or errors of fact that have occasioned a miscarriage of justice. When there is an error of law, the Appeals Chamber will apply the correct legal standard to the facts of the case. The Appeals Chamber does not lightly overturn a decision reached by the Trial Chamber.
The Appeals Chamber found that the proceedings against the defendants, all told, took approximately 12.5 years, and that the defendants were detained in custody for the duration of the proceedings. The defendants argued that this time lapse violated the right to trial without undue delay, and that it was caused by procedural missteps and prosecutorial negligence during trial. The defense further argued that the Trial Chamber, in reaching its ultimate decision, failed to adequately consider the charges of undue delay made by the defense. The Prosecution argued that the length of the trial was necessarily occasioned by the size and complexity of the case, and thus no violation of the right to a speedy trial occurred. It further argued that the Trial Chamber did appropriately consider the issues raised by the defense, and that the defense had not adequately pointed out any error in the Trial Chamber’s consideration or ultimate determination.
The Appeals Chamber recalled the rule governing undue delay, Article 20(4)(c) of the Statute. It recalled that a violation determination is made on a case-by-case basis, and is done so according to determining whether five factors are present. The Appeals Chamber agreed with the Prosecution and the Trial Chamber that the delays caused in the case were due to the case’s size and complexity. The Chamber noted that the case was one of the largest heard by the Tribunal, and that measured by pace-of-trial, was not dissimilar to other trials with multiple defendants. The Chamber also found the fact that some multi-defendant trials have moved at faster pace, not dispositive of the issue. The Appeals Chamber did not find that any decisions made by the Prosecution or Trial Chamber improperly contributed to the trial’s length. Further, the Appeals Chamber did not find that the Trial Chamber improperly or inadequately considered these claims.
The defendants next argued that the Prosecution violated its Rule 68 duty to disclose any exculpatory information it has in its possession. Specifically, the defendants sought certain evidence from other Rwanda trials, which the defendants argued was relevant to the reasons behind the removal of Habyalimana’s as prefect. They argued that the material would tend to show that his removal was done for administrative reasons, and not to facilitate the murder of Tutsi civilians, as the Prosecution contended.
The Rule requires that the defense specifically identify the material sought, make a prima facie case of the evidence’s exculpatory nature, and prove that the material is in the Prosecution’s control. The Prosecution is found to have failed in its disclosure obligations, the Chamber will determine whether the Defense have been prejudiced by the failure-to-disclose before it will fashion a remedy.
The Prosecution acknowledged that it had the requested testimony in its possession, and that it should have turned it over. It argued, however, that its failure to turn over the materials was due to a mistake in identifying the material, and not due to any bad faith on the Prosecution’s part.
The Appeals Chamber was satisfied that the defendants showed that the Prosecution breached its disclosure duties under the elements announced in Rule 68. The Chamber, however, found that the requested material was both consistent with factual findings made by the Trial Chamber against the defendants, and cumulative of other evidence presented at trial. The Chamber thus found that any prejudice against the defendants was minimal, and did not materially affect the case against them. Thus, it found that no relief was warranted. The Appeals Chamber, however, did note that throughout the trial the Prosecution breached its Rule 68 duties on a number of occasions, and that the Trial Chamber had called its continued breaches “inexcusable.” The Appeals Chamber found that the repeated violations impacted the proceedings and prejudiced the interests of justice. The Chamber “firmly reminded” the Prosecution of its duties under Rule 68.
The Indictment charged the defendants with conspiracy to commit genocide. Mugiraneza argued that the crime for which he was convicted ultimately differed from that charged, and that the indictment fails to allege any actions personally taken by him in connection with the charged crime. He also argued that a conviction for conspiracy to commit genocide could not be had under a joint criminal enterprise theory, as was found in his case.
The Appeals Chamber found that the Indictment adequately put the defendant on notice of the specific acts for which he was being accused – namely the removal of Habyalimana as prefect. It also found that the indictment adequately put the defendant on notice that he was being charged with conspiracy to commit genocide.
Finally, the defendants argued that the Trial Chamber erred in finding the requisite mens rea for the charged crimes – conspiracy to commit genocide and incitement to genocide. Specifically, the defendants argued that the fact that they participated in the removal of Habyalimana did not necessarily evidence an intent to commit genocide, and the fact that they attended the speech given by the Interim President could not be construed to suggest that they intended to or knowledgably engaged in incitement to genocide.
The Appeals Chamber found that the Trial Chamber convicted the defendants on the conspiracy to commit genocide count from circumstantial evidence – namely, the Trial Court found that Habyalimana’s removal was done so that a political obstacle to killing of Tutsi civilians would be removed. They necessarily assumed that the primary motivating factor behind the removal was the furtherance of genocide, and convicted accordingly. The Appeals Chamber noted that a conspiracy to commit genocide can be found from circumstantial evidence, but when an inference of guilt is based on circumstantial evidence, that inference must be the only reasonable inference that can be drawn from the evidence.
The Appeals Chamber noted that evidence at trial suggested administrative reasons for Habyalimana’s removal as prefect – namely, a number of specific instances where he failed to adequately perform his job or meet his obligations as prefect. The Appeals Chamber noted that this, as the defense contended, could be a reasonable and primary reason for his removal. Thus the Appeals Chamber was not convinced that the Prosecution had met its burden to show that the genocidal reason for his removal was the only reasonable inference that could be drawn from the evidence. Thus, it found that the Trial Chamber could not sufficiently found that the defendants, in light of the alternative explanation for Habyalimana’s removal, possessed the mens rea for conspiracy to commit genocide.
The Appeals Chamber also found that the Trial Chamber lacked a sufficient evidentiary basis to find that the defendants possessed the necessary mens rea for incitement to genocide. The basis for the defendant’s conviction was their presence at the inflammatory speech given by the Interim Rwandan President during the installation of the new prefect of Butare. The Appeals Chamber noted that evidence was presented suggesting that it was customary for officials of the defendant’s positions to attend such events, such that their presence was not necessarily unexpected or indicative of any particular agreement with the proceedings.
Likewise, the Appeals Chamber found that no evidence suggested that the defendants knew of or agreed with the contents of the Interim President’s speech – essentially, that they did not know what he was going to say ahead of time, such that their presence at the event could not be construed as agreement with the content of the speech. The Prosecution and the Trial Court found it dispositive that one of the defendants did not renounce the Interim President’s inflammatory ideas in their own speech at the event; the Appeals Court noted that the defendant’s speech preceded the Interim President’s, such that he could not have rebutted or refuted the ideas had he wanted to. Thus, the Appeals Chamber found that the Trial Chamber could not have adequately found that the defendants possessed the adequate or actual mens rea to incite the public to genocide.
Based on the foregoing, the Appeal Chamber reversed the defendants’ convictions for conspiracy to commit genocide and for direct and public incitement to commit genocide, and entered judgments of acquittal.
To access the full Decision, click here.
Posted by cdelaubenfels in African Court on Human and Peoples' Rights, Crimes against Humanity, Fatuo Bensouda, Gender crimes, Genocide, Human Rights Violations, ICC, ICTR, ICTY, Investigations, Ivory Coast, jurisdiction, Kenya, News about the Courts, Post-Election Violence, Rome Statute, Syria, UN Human Rights Council, UN Security Council, War Crimes, Witnesses on February 20, 2013
ICC confirmation hearings of Laurent Gbagbo begin: On 19 February 2013, the confirmation hearings of Ivory Coast ex-President Laurent Gbagbo began. Gbagbo is accused of crimes against humanity, including murder and rape, in relation to post-election violence in 2010. The ICC confirmation hearing is to determine if there is sufficient evidence to merit a trial. Gbagbo’s attorneys argued that Gbagbo is already under investigation in Ivory Coast and that he should be tried there. Gbagbo is the first former head of state to appear before the ICC. (For additional information on this topic, please click here).
Russia and UN Secretary General in disagreement over referring Syria to ICC: On 19 February 2013, Russian Deputy Foreign Minister Gennady Gatilov said that Russia opposes referring Syria to the ICC. Gatilov stated that the focus in Syria should be on peace and that an ICC investigation at this time “would be untimely and unconstructive.” In contrast, on the same day UN Secretary General Ban Ki-Moon released a statement supporting the referral of the Syrian conflict to the ICC. The number of deaths in the conflict is currently estimated at around 70,000. Because Syria is not a party to the Rome Statute, the only way Syria can be referred to the ICC is through the UN Security Council. A UN Security Council action is unlikely because Russia can veto any such ICC referral. (For additional information on this topic, please click here).
ICC to establish regional court in Tanzania: On 18 February 2013, ICC Regional Commissioner for Arusha, Magessa Mulongo, announced that the ICC will open an African regional chapter in Arusha, Tanzania. Arusha already hosts the African Court for Human and People’s Rights, the East African Court of Justice, and the ICTR. The ICTR, which has operated in Arusha since 1995, will soon be closing. The establishment of an African chapter of the ICC further ties the ICC to Africa, which provides 25% of the staff and five of the eighteen judges.
Human Rights Watch calls for UN Human Rights Council to investigate Sri Lanka: On 19 February 2013, HRW called for the UN Human Rights Council to open an inquiry into Sri Lankan war crimes. HRW claims that the Sri Lankan government “has taken no significant steps to provide justice for victims of abuse and accountability for those responsible.” The alleged war crimes relate to an estimated 40,000 civilian deaths in Sri Lanka at the end of the Sri Lankan civil war in 2009. HRW further criticized the Sri Lankan government for current human rights deteriorations. On 11 February 2013, the UN Office of the High Commissioner for Human Rights issued a highly critical report on the Sri Lankan government’s failure to provide accountability and justice and recommended that an independent international investigation should be conducted.
Kenya Attorney General states that the government fully cooperates with the ICC: On 19 February 2013, Kenya’s Attorney General Githu Muigai stated that Kenya has cooperated fully with the ICC court proceedings relating to the 2007-2008 post-election violence. Muigai’s statement was in response to comments made by ICC Prosecutor Fatou Bensouda claiming that Kenya is intimidating ICC witnesses, withholding documents, and limiting access. Muigai stated that Kenya has cooperated with the ICC Victims and Witnesses unit and has turned over all legitimate documents and materials as required by the Rome Statute. Further, Muigai urged Bensouda to ensure that all communications between the government and the ICC are through the Rome Statute, not the media.
Bosnian-Serb war criminal dies at 75: On 17 February 2013, former Bosnian-Serb general Milan Gvero died at the age of 75 in a Belgrade hospital. In 2010 the ICTY sentenced Gvero to five-years in prison for war crimes. Gvero’s conviction was related to his role in the 1995 massacre of nearly 8,000 Bosnian Muslims in Srebrenica. The Srebrenica massacre—deemed a genocide by the ICTY—is widely considered the worst European atrocity since World War II.
Kenyan presidential candidates attend ICC hearing via video; seek delay of trial: On 14 February 2013, Uhuru Kenyatta and William Ruto, running mates in Kenya’s March elections, opted to attend their ICC pre-trial hearing via video-link. The two decided that traveling to The Hague for the conference would interrupt their campaigns. Kenyatta and Ruto both sought delays in their cases at the pre-trial hearing. Ruto seeks more time to prepare for trial due to late disclosure of prosecution evidence. Kenyatta wants his case to be sent back to pre-trial hearing to see if he should still go to trial due to an essential prosecution witness being dismissed for lies. At a presidential debate on Monday, Kenyatta said that the ICC prosecution would not interfere with his ability to run Kenya if elected; ICC Chief Prosecutor Fatou Bensouda has applied to the court for the four accused Kenyans to make a declaration that they would not fail to attend their trials. (For additional information on this topic, please click here).
Kenyatta cleared to run for president by Kenyan Court: On 15 February 2013, the Kenyan High Court refused to rule in a case on the eligibility of Kenyan presidential candidates, including Uhuru Kenyatta. The High Court stated that only the Kenya Supreme Court has the jurisdiction to rule on issues relating to the election of presidents. The refusal to rule, absent appeal to the Supreme Court, clears Kenyatta for the 4 March election. Current Prime Minister, and front runner for the presidency, Raila Odinga welcomed the decision, stating that the Kenyan people should decide the presidency in a free and fair election.
Serbian president to open UNGA debate on the Hague Tribunal: On 12 February 2013, the UNGA president Vuk Jeremić sent invitations to UN member states to participate in a debate on the Hague Tribunal. Serbian president Tomislav Nikolić will be the first person to address the debate participants. Other participants include Rwanda, representatives of the ICTY, ICTR, and ICC, other members states, and potentially Bosnia-Herzegovina Presidency Chairman Nebojša Radmanović. The debate is in response to the acquittal of Croat generals by the Hague Tribunal last November. This will be the first time since Nuremburg that the UNGA will openly debate the work of an international criminal judiciary.
Kenyan government sued for police brutality during post-election violence: On 14 February 2013, families of seven killed and eight wounded victims of the 2007-2008 post-election violence brought suit against the Kenyan government. The lawsuit claims that the Kenyan police were responsible for the shots that caused the deaths and injuries. Kenyan records show that police were responsible for the 405 of the over 1100 deaths in relation to the violence. Domestic and International human rights organizations have long expressed concerns with the police force for ineffectiveness, endemic corruption, human rights violations, and impunity. The lawsuit claims the government gave unlawful orders to the police and failed to train them properly.
ECCC places restrictions on lawyers’ ability to speak to the media: On 15 February 2013, the ECCC issued an edict requiring lawyer to seek approval from the court before speaking to the media about issues that could affect the court—especially the topics of corruption and political interference. Defense lawyers for the Khmer Rouge Tribunal has asked the ECCC bar to further clarify the order. If disobeyed, the order could lead to fines or disbarment. The edict may be in response to a heavy amount of criticism levied at the ECCC. Domestic and International legal experts have denounced the edict as a violation of freedom of speech.
Former Lebanese prime minister states that those responsible for his father’s assassination will be brought to justice: On 14 February 2013, on the eight year anniversary of his father’s assassination, former Lebanese prime minister Saad Hariri said that those responsible would be brought to justice “sooner or later.” He reaffirmed his trust that Special Tribunal for Lebanon will punish the criminals responsible. The STL has indicted four Hezbollah members for the assassination, but the men remain at large and Hezbollah denies any involvement.
Charles Taylor defense investigator convicted of bullying witnesses: On 12 February 2013, Prince Taylor, former defense investigator in the trial of former Liberian President Charles Taylor was convicted and sentenced to 30 months in jail. He was convicted on 5 counts of interfering with prosecution witnesses testifying in the trial of Charles Taylor.
Sri Lankan army issues report finding no liability: On 25 January 2013, the top army commander Lieutenant General Jagath Jayasuriya presented a report to Defense Secretary Gotabhaya Rajapakse, finding that the Sri Lankan army took “all precautions to avoid civilian casualties” and rejecting several findings of the government’s Lessons Learnt and Reconciliation Commission (LLRC). The report stated that Sri Lanka was entitled to take “legitimate measures to maintain or re-establish the law, the national unity and territorial integrity of the state” and characterized international scrutiny as part of a “foreign conspiracy.” The report rejected several LRRC recommendations, such as easing military occupation in the northern and eastern portions of the country and separating the police from the military. Fueling fears of increasing military control, the report put forth recommendations of its own, including a recommendation that military officers continue to “assist the civil administration” of the country, and a recommendation of a military screening process of international organizations “to ensure that undesirable elements will not jeopardise national security.” The UN estimates that over 40,000 civilians were killed during the final weeks of the 2009 conflict and the International Crisis Group similarly estimates that the civilian death toll was anywhere from 30,000 to 75,000.
President of Sudan flouts ICC arrest warrant for war crimes, announces visits to Chad and Libya: On 11 February 2013, the government-sponsored Sudanese Media Center (SMC) announced that President Bashir would attend the Community of Sahel-Saharan (CEN-SAD) summit in Chad and may visit Libya to attend the second anneversary of the 17 February revolution. Bashir is wanted by the International Criminal Court (ICC) for crimes against humanity and genocide allegedly committed during the 10-year conflict in Darfur, which has left 300,000 dead. As a state party to the Rome Statute, Chad has an obligation to arrest Bashir, but is unlikely to do so. Chad, along with other parties to the Rome Statute, has failed to arrest Bashir since his arrest warrants were issued in 2009.
Hundreds protest ICTR acquittals of former Rwandan cabinet ministers: On 11 February 2013, protestors took to the streets in response to the decision of the Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR) to overturn the convictions of former Trade Docket Minister Justin Mugenzi and former Public Service Minister Prosper Mugiraneza, finding that they were not responsible for the Rwandan Genocide.