Archive for category Rwanda

15 April 2014 – NEWS ABOUT THE COURTS

ICTY rejects Mladic’s Rule 98bis application and find case to answer: On Tuesday, 15 April 2014, Trial Chamber I of the ICTY rejected Ratko Mladic’s 98 bis application for acquittal, a rule under the Tribunal’s Rules of Procedure and Evidence that allows the Tribunal to acquit a defendant after an oral hearing if there exists no evidence to support a conviction. Upon dismissing the application, the Chamber held that even if Mladic has a defense to all of the counts against him, there is evidence to support all of the charges against him. (ICTY).

Libyan trial of Ex-Gaddafi Officials postponed amid concerns of a fair trial: On Monday, 14 April 2014, the Libyan government opened and subsequently adjourned the trial against Muammar Gaddafi’s sons and his former officials, due to incomplete investigations; particularly the investigation of evidence against Saadi Gaddafi remains incomplete. The case will proceed on 27 April 2014, in order to allow the investigators more preparation time and to set up video links for the sons and officials who were not brought to the court for security reasons. Human Rights Watch and Amnesty International continue to express that the defendants’ right to a fair trial have been violated. The groups are concerned that not all of the defendants have had access to lawyers; that the defense teams have been restricted in their ability to assess evidence and case files; that interrogation strategies and detention conditions have been unfair; that Libya recently amended its Code of Criminal procedure to allow trials through video links, meaning the defendants, all of whom are being held in prisons and one of whom is being held in a secret location by a militia, will not physically appear at their trials; and that the Libyan justice system is generally unstable, in part because previous attacks against lawyers and judges in Libya have resulted in the suspension of courts throughout parts of Libya. The defense lawyers raised concerns about insufficient access to the case files in court. The ICC is still deliberating on the admissibility of the cases against Saif Gaddafi and Abdullah Al-Senussi, and a decision from the Appeals Chamber on whether the Libyan government is able to try them is still outstanding. (Reuters) (For more information on this topic, please click here, here, and here).

Ruto trial hears from satellite imagery expert and breaks for Easter: Lars Bromley, a UN specialist in satellite imagery, testified before the ICC in the case against Kenyan Deputy President William Ruto and Kenyan journalist Joshua Arap Sang, explaining that at least 506 buildings were deliberately burned down in the Rift Valley following the election, and that 190 more buildings were “possibly burnt.” He based his analysis on satellite images, the deliberate nature of the burnings being evident from burn patters. The defense disputed the expert’s testimony. The trial is currently on break for the Easter holiday, after which the prosecution will likely call a witness who was instrumental in the confirmation of charges against Ruto.  (Institute for War & Peace Reporting) (For additional information on this topic, please click here).

Habre defense team says trial is politically motivated: The defense team of former Chadian dictator Hissene Habre claims that the reasons behind his prosecution in Senegal were political and instigated by a Chadian spy agency. Habre, who is charged with having committed war crimes, crimes against humanity, and torture while he was in charge of Chad between 1982 and 1990, will stand trial in Senegal in 2015, where he was in exile for twelve years before being arrested last July. (Legalbrief Today).

ICTR Prosecutor asks for increased efforts to prosecute all suspects of 1994 crimes in Rwanda: In a commemoration address, Hassan Jallow, the chief prosecutor of the ICTR, asked for an increased effort to find and prosecute perpetrators of the genocide against Tutsis in 1994 who have not been tried, and that countries in which suspects of these crimes are located to transfer these alleged perpetrators to Rwanda in order to stand trial. He specifically mentioned Félicien Kabuga, Protais Mpiranya, and Augustin Bizimana, all of whom are fugitives and suspected of having played significant roles in the genocide. (AllAfrica).

UN High Commissioner for HR expresses concerns for amnesties in Nepal: Following the Nepalese government’s drafting of a law that would create a Truth and Reconciliation Commission and a Commission on Disappeared Persons, the UN High Commissioner for Human Rights Navi Pillay warned that this legislation would allow these two panels to recommend amnesties for human rights abuses that occurred in Nepal. The government denies the existence of amnesty possibilities in the legislation, saying that amnesty would only occur with the victims’ consent. (Reuters).

Amnesty claims CAH and war crimes escalating in Nigeria: Amnesty International issued a report stating that violence has increased in northeastern Nigeria due to a higher number of attacks by Boko Haram and responses by Nigerian security forces, which has resulted in the death of at least 1,500 people since the beginning of the year. According the group, these events may be war crimes and crimes against humanity, and the group urged other countries, the African Union, and the UN to launch investigations into these acts. Amnesty International has documented attacks carried out by both Boko Haram and Nigerian security forces that occurred in January, February, and March 2014. (Amnesty International).

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7 April 2014 – NEWS ABOUT THE COURTS

French delegates suggest intent to refer Syria to ICC:  France is currently seeking to propose a Security Council resolution that would refer Syria to the ICC for the prosecution of war crimes.  Russia stands as the largest opposing force to any such resolution.  The process is still in its infancy and many officials have refused to comment on specifics.  (NYT).

Arguments conclude in Croatia-Serbia ICJ Case:  The Croatia-Serbia ICJ case began in 1999.  Since that time, Serbia has filed a countersuit against Croatia and would like to see the ICJ declare the Croatian armed forces’ 1995 action genocide against the Serbian people.  The Croatian team still claims that the Serbian forces were excessive in their use of force.  The final verdict may be announced by the end of this or early next year and may not be appealed.  (B92).

UN concerned over continued violence in CAR:  The UN human rights office has finished its preliminary investigation of the deadly events that took place on March 29 in Bangui, CAR.  It has been determined that Chadian soldiers killed some 30 civilians and wounded more than 300 in an indiscriminate attack on a market.  (UN News).

UN Secretary General commemorates 20-year anniversary of Rwanda Genocide:  UN Secretary-General Ban Ki-moon reminds the international community that the atrocities that took place in Rwanda should not be forgotten and should not have occurred in the first place.  Monday’s commemoration is part of a series of events that aim to remember the people murdered in Rwanda and to unite the people of Rwanda.  (UN News).

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10 March 2014 – NEWS ABOUT THE COURTS

Amnesty Report highlights Syria crimes:  Amnesty International has reported that the Syrian army has been using starvation as a weapon of war in its control of the Yarmuk Palestinian refugee camp near Damascus.  Because aid cannot be delivered due to the Syrian army’s interference at least 60 percent of those in Yarmuk are suffering from malnutrition.  (AFP).

Croatia-Serbia genocide case begins at ICJ:  The ICJ has begun hearings in mutual claims of genocide brought by Croatia and Serbia.  The original suit was brought by Croatia in 1999 blaming Yugoslavia alleged acts amounting to ethnic cleansing.  Yugoslavia, now Serbia, countersued claiming that 200,000 ethnic Serbs were forced to flee in 1995 when Croatian troops launched a military operation to retake occupied territory.  (For additional information on this topic, please click here) (SBS, ICJ).

Karadzic prosecution seeks to introduce new evidence:  The discovery of a mass grave in Bosnia has motivated the Prosecutors at the Hague tribunal to ask the judges to allow them to reopen their case against Bosnian Serb president Radovan Karadzic.  The Prosecution argues that restricting the use of this new found evidence would be against the interests of justice.  (IWPR).

Rwandan Government releases genocide report; criticizes ICTR:  Rwanda’s senate has released a report that attacks the competency of the ICTR.  There have been a number of acquittals which have taken place that are at the center of the public outrage.  However, the court has put nearly two million people on trial, convicting 65 percent of them.  (AFP).

Saadi Gaddafi returned to Libya for trial:  Saadi Gaddafi has been extradited from Niger to stand trial Libya.  He is currently facing charges of embezzlement and making armed threats.

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19 February 2014 – NEWS ABOUT THE COURTS

U.N. panel finds widespread human rights abuses in North Korea: A 400-page investigatory report documenting alleged human rights abused being carried out in North Korea was released by a special U.N. commission.  The report, which has already gained support from countries such as the U.S. and South Korea, reveals widespread and systematic acts of torture, starvation and executions. International scholars, who argue the acts could warrant an ICC prosecution, fear China, a permanent member of the U.N. Security Council and a close ally of North Korea, would veto a referral to the permanent international court. North Korea has yet to respond to the report that is expected to be presented next month in Geneva to the U.N. Human Rights Council. (Wall Street Journal).

Kenyan AG Githu Muigai addresses  ICC: Domestic law prevents the disclosure of the Kenyan President’s financial records, said Attorney General Githu Muigai while speaking to ICC judges in The Hague on 13 February 2014. The attorney general informed the judges that proper procedure required the request for records to be submitted first to the local prosecutor for authorization. Muigai also denied that Kenya’s failure to comply with the ICC prosecution’s request for financial records violated its responsibilities to the Court.  (Institute for War & Peace Reporting).

Frankfurt: Genocide trial of Rwandan mayor begins: A German higher court commenced proceedings on 18 Tuesday 2014, against former Rwandan mayor Onesphore Rwabukombe. Rwabukombe, an ethnic Hutu, is charged with the mass killing of nearly 4,000 ethnic Tutsi during the 1994 Rwandan genocide. Some 50 witnesses are expected to testify in the first Rwandan genocide case tried in Germany. Rwabukombe faces life imprisonment if convicted. (The Local).

Socio-Political Scientist Herve Maupeu testifies at Ruto/Sang ICC trial: The trial of Kenyan Deputy President William Ruto and radio journalist Joshua arap Sang resumed in The Hague on 17 Monday 2014 after the Christmas recess. An expert witness on Kenya’s social and political history, Herve Maupeu, testified that the country’s sitting head of state Uhuru Kenyatta had been a member of the Orange Democratic Movement’s leadership circle. Deputy President Ruto is a supporter of the Orange Democratic Movement which is alleged to have planned attacks against the rival political party. (Standard Media).

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18 February 2014 – NEWS ABOUT THE COURTS

ICC to decide on witnesses refusing to testify in Ruto case: The trial against Kenyan Deputy President William Ruto and journalist Joshua Sang before the ICC continued on Monday, 17 February 2014, but several witnesses have refused to testify, an issue the judges are expected to rule on this week. Prosecutor Fatou Bensouda has asked the Court to summon seven witnesses, whom she alleges have refused to testify due to bribery, whereas Attorney General Githu Muigai argued that the Court cannot compel testimony. So far, 10 witnesses have testified. (The Star).

Genocide survivors outraged by ICTR acquittals: A Rwandan genocide survivors’ association declared the ICTR Appeals Chamber’s 11 February 2014 acquittal of two former army officers of charges related to the 1994 Rwandan genocide to be an “outrageous” decision and a “denial of justice.” Major Francois-Xavier Nzuwonemeye was acquitted because his alleged role in the assassination of the Prime Minister and killing of 10 Belgian UN Blue Helmets had not been proven beyond a reasonable doubt, and General Augustin Ndindiliyimana was acquitted because the Court ruled that he had not had effective authority over subordinates who had been abused. In both cases, the Appeals Chamber found errors in the assessments of the Trial Chamber. The sentence of a third officer, Innocent Sagahutu, was reduced from 20 to 15 years because the Court found that he had not ordered the killing of two Belgian UNAMIR peacekeepers. The Court also said that it would deliver a decision concerning the sentence of former army chief Augustin Bizimungu at a later date. (For more information on this topic, please click here and here). (AFP, ICTR, AllAfrica).

ICTY Accused, Milan Lukić, transferred to Estonia to serve sentence: Milan Lukić, who was sentenced to life in prison by the ICTY in 2009 for having committed crimes against humanity and violation of laws and customs of warfare, a conviction that was confirmed by the Appeals Chamber in 2012, has been transferred to Estonia, where he will serve out his sentence. (in Serbia).

Parties prepare final submissions after confirmation hearing concludes in Ntaganda case: Following the conclusion of the confirmation of charges hearing in the case against Bosco Ntaganda before the Pre-Trial Chamber of the ICC, both sides are preparing final written submissions. The Prosecutor and the Legal representatives of the victims have to turn in their submissions by 7 March 2014, and the Defense may reply to these submissions until 4 April 2014. The judges will decide whether to confirm the charges, decline to confirm the charges, or request further evidence within 60 days of receipt of the Defense’s written submission. Ntaganda is suspected of committing war crimes and crimes against humanity in Ituri, DRC between September 2002 and September 2003, and the Pre-Trial Chamber II concluded the five-day hearing concerning these charges on 14 February, 2014. (ICC-CPI).

STL trial bring sense of justice as fifth accused is joined to case: On 14 February 2014, exactly nine years after the assassination of Rafic Hariri, mourners and friends of the former Lebanese Prime Minister were hopeful that the STL will bring those accused of the bombing to justice. Several days prior to the anniversary of Hariri’s death, on 11 February 2014, the STL had joined the case of a fifth alleged Hezbollah member to the trial of the four alleged members currently accused. (For more information, please click here) (The Daily Star).

UNHCR recommends international investigation into Sri Lanka war crimes: The UN High Commissioner for Human Rights Navi Pillay has called on the UN Human Rights Council to conduct an independent international probe into the war crimes committed in Sri Lanka during the Liberation War. According to Pillay, the Sri Lankan government has consistently failed to address the human rights violations that occurred between 1972 and 2009. (The Daily Star).

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13 February 2014 – NEWS ABOUT THE COURTS

Nine former paramilitaries convicted of war crimes in Serbia: Nine members of the Serbian Jackals paramilitary unit were sentenced by a Serbian war crimes court to imprisonment of between two and twenty years. The nine members were found guilty for the massacre in Kosovo of over 100 Albanian civilians in 1999. The prosecution intends to appeal and seeks increased prison sentences. (VOA News).

ICTR acquits former paramilitary chief on appeal: On Tuesday, 11 February 2014, the ICTR acquitted two former army officers of charges related to the 1994 Rwandan genocide. A judgment on a third army officer is expected at a later date. (Zee News).

Kenyan government to argue Kenyatta’s bank records cannot be turned over: Kenya’s Attorney General, Githu Muigai, will address the ICC on Thursday, 14 February 2014, concerning the countries failure to disclose the requested financial records of President Uhuru Kenyatta. Muigai claims the records are protected by Kenya’s Banking Act, as well as the Rome Statute and the ICC’s Rules of Procedure and Evidence. ICC Prosecutor Fatou Bensouda disagreed, and worries nondisclosure “would reward the accused.” (Standard Digital).

ICC prosecutor gives details regarding witness disappearance: A major ICC prosecution witness is reported to have disappeared in September 2013, according to a motion filed by Prosecutor Fatou Bensouda. It has been alleged the witness was bribed and pressured to withdraw. The motion requests the ICC to compel the missing witness and six others to appear before the court in the case against Kenyan Deputy President William Ruto and radio journalist Joshua arap Sang. (Standard Digital).

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5 February 2014 – NEWS ABOUT THE COURTS

ICC Prosecutor: Kenyan government obstructionism means ICC will not be successful in Kenyatta prosecution: Prosecutors requested the ICC on 31 January 2014, to adjourn the trial of Kenyan President Uhuru Kenyatta until the defense delivers requested financial records. The prosecution argued the defense’s failure to fulfill court obligations was harming investigations. The prosecution predicts the records will show that Kenyatta indirectly financed the violence committed after the 2007 presidential election. (Reuters).

Trial of Rwandan Army Captain charged with complicity in ’94 genocide begins in France:  Proceedings in the case against Pascal Simbikangwa, a former captain of the Rwandan army, commenced in France on Tuesday, 4 February 2014.  Simbikangwa faces charges of complicity to commit genocide for, among other things, organizing massacres and supplying arms. French law allows the country to hear cases of genocide and other serious violations of international law committed in Rwanda. (Jakarta Globe).

Costa Rica to sue Nicaragua over sea rights at the ICJ: Costa Rica intends to file suit in the ICJ by May 2014, concerning ownership over an area of sea. The country claims Nicaragua usurped “Costa Rican territorial seas, based on demarcation it did arbitrarily and unilaterally, to chart what it calls its oil (exploration) blocs.” Nicaragua, on the other hand, argued it had jurisdiction over the waters under a November 2012 ICJ decision between its country and Columbia. (Inside Costa Rica).

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15 January 2014 – NEWS ABOUT THE COURTS

Kenyan ruling on accused journalist expected end of January: An ex parte hearing is scheduled on Monday, 20 January 2014, at the Kenyan High Court concerning the arrest and extradition of Walter Barasa to the ICC. Barasa, a journalist accused by the ICC of witness interference, has moved the High Court to declare the ICC warrants against him invalid. The ruling on whether to extradite Barasa to The Hague for trial is expected 31 January 2014. (Capital News).

ICC to discuss Ruto excusal request: The ICC is holding a status conference to determine whether Kenyan Deputy President William Ruto may be excused from continuous presence in The Hague. Ruto’s request for excusal came after the ICC Assembly of States Parties ruled that senior officials could be tried in absentia. ICC Prosecutor Fatou Bensouda has urged the court to deny the excusal motion since not all the Deputy President’s duties demand his presence in Kenya. The trial of Ruto, and his co-accused, journalist Joshua arap Sang, is expected to continue on Thursday, 16 Wednesday 2014. (Standard Digital).

Victim representative claims ICC being undermined: A victim representative fears withdrawal of charges in the case against Kenyan President Uhuru Kenyatta will undermine the ICC’s credibility. Irish barrister Fergal Gaynor questioned why the ICC prosecution is “on the verge of raising the white flag of surrender when its quite clear the government has blocked evidence?” Kenyatta is on trial for crimes against humanity in which Gaynor represents some 20,000 victims. (Global Legal).

Widow of Rwandan President sues in ECHR: Former Rwandan President Habyaramina’s wife has filed suit at the ECHR claiming France violated the European Convention on Human Rights for refusing her residency. The former President’s wife, Agathe Habyarimana, wanted for genocide in Rwanda, alleged France is politically discriminating against her. France, on the other hand, argued Agathe was a “danger to public order.” (All Africa).

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23 December 2013 – DECISION REVIEW

Court/Tribunal: International Criminal Tribunal for Rwanda

Decision Title: Decision on Bernard Munyagishari’s Third and Fourth Motions for Admission of Additional Evidence and on the Appeals Against the Decision on Referral Under Rule 11 bis

Chamber: Appeals Chamber

Case Name: Bernard Munyagishari v. The Prosecutor

Date: 3 May 2013

_________

Executive Summary:

  •  Both Defendant Munyagihari and the Prosecution appealed the Referral Chamber’s decision transferring, with conditions, his case from the ICTR to the national Rwandan courts. The defendant first asked the Appeals Chamber to consider additional evidence, which it rejected. The defense the presented ten grounds upon which it argued that the Referral Court erred when reaching the decision to transfer the case. The Appeals Chamber dismissed all but one, according to which the Appeals Chamber required that the Prosecution amend the Indictment to reflect that the national proceedings will not pursue joint criminal enterprise as a mode of liability. The Prosecution argued against two of the four conditions that the Referral Chamber had ordered to the national proceedings; the Appeals Chamber struck the conditions.

 

Principles found in decision:

  • Even if proposed additional evidence meets the requirements under Rule 115 for admission after-the-fact, if the additional evidence would not have been dispositive in the original decision, the Appeals Court will not consider the evidence
  • An Indictment against a defendant must completely and accurately reflect the charges against the defendant, so as to effectuate his right to be so informed. If the mode of liability is changed in a transfer case, this change must be reflected in an amended indictment
  • The U.N. Security Council Resolutions regarding the ICTR do not require retention of high-level cases at the Tribunal
  • In arguing that national proceedings will not adequately maintain international standards for the defendant’s detention, the defendant must show case-specific evidence of inadequate conditions for his transfer case. He cannot rely upon general evidence about the national prison system as a whole
  • Ensuring a defendant’s rights to counsel does not require that an attorney appointed to represent an indigent defendant in a case transferred to a national court have previous international experience in order to ensure
  • If a referring court requires third-party monitoring of cases transferred to national courts to ensure a fair trial, the monitoring system need not be established before the case is transferred to the national system

_________

Decision Background: Mr. Munyagihari is indicted before the Tribunal for events stemming out of the Rwandan Genocide of 1992-1994. He is charged with conspiracy to commit genocide, genocide, or alternatively complicity in genocide, murder and rape as crimes against humanity. On 6 June 2012, the Tribunal’s Referral Chamber issued the Impugned Decision, in which it ordered the case referred for trial before the High Court of Rwanda. The referral of the case to a domestic court was subject to the domestic court’s ability to meet four conditions set out by the Referral Chamber.

In June 2010, both the defense and the prosecution filed notices of appeal against the decision to refer the case to a domestic Rwandan court. In November and December of 2012, the defense filed two motions for the consideration of additional evidence on the decision to refer the case to Rwanda, both of which the Appeals Chamber dismissed. The defense filed a third motion for the consideration of additional evidence on 11 February 2013, and filed a fourth motion to consider additional evidence on 4 April 2013. In his third motion, the defendant requested that, pursuant to Rule 115 of the Rules, an article published in the New York Times on 6 February 2013, and a communiqué published on 7 February 2013, regarding an alleged absence of a system to monitor any tribunal undertaken in Rwanda. In his fourth motion, the defendant requests that the Tribunal consider a report published on 25 March 2013 by Amnesty International, allegedly revealing serious deficiencies with the Rwandan judicial system and his ability to receive a fair trial in a national proceeding.

The defendant  challenged the decision to refer his case to domestic Rwandan proceedings. He advanced ten grounds upon which he contested the decision.

The Prosecution also appealed the Impugned Decision, challenging in one ground of appeal the Referral Chamber’s subjection of the national proceedings to two conditions. 

Decision Review:

Third and Fourth Motions for Consideration of Additional Evidence—

The Appeals Chamber first considered the defense’s third and fourth motions to hear additional evidence on the referral of the case to domestic Rwandan courts. The Appeals Chamber noted that under Rule 115, a motion to hear additional evidence shall not be filed more than 30 days from the filing of the reply brief unless there is a showing of good cause for delay, and that this limit applies to appeals from referral decisions; the Chamber noted that the defendant filed his motions outside of the allotted time frame. However, because the articles of additional evidence were not published in their original source until after the 30-day window, and were thus not available during the allotted time frame, the Appeals Chamber found good cause for delay, and stated it would consider the evidence.

Rule 115 allows for the admission of additional evidence on appeal when a party has possession of material that was not presented at trial, and that represents evidence on a question of fact that was at issue during trial. In order to be considered on appeal, the evidence must not have been available at trial in any form, and must not have been discoverable in any form through the exercise of due diligence. The additional evidence must be relevant and credible. If the evidence is relevant and credible, but was available during referral proceedings, the Appeals Chamber may allow it if the moving party can establish that its exclusion would constitute a miscarriage of justice.

The Appeals Chamber found that the additional evidence presented in the Third Motion met all of the admission requirements under Rule 115. The Chamber, however, found that the additional evidence would not have been a decisive factor in the Impugned Decision. The Appeals Chamber found that the hearings on referral adduced satisfactory evidence of Rwanda’s willingness to hold the trial, and found concerns allegedly raised by the evidence in the Third Motion are speculative. As such, the Appeals Chamber found that the evidence in the Third Motion could have had any impact on the Referral Chamber’s decision to refer the case to Rwanda.

The Appeals Chamber found that the Amnesty International report requested in the Fourth Motion met all of the Rule 115 requirements for admission. However, the Appeals Chamber found that the evidence would not have been a decisive factor in the decision to refer the case to Rwanda. The Amnesty report concerned issues and problems that occurred in another defendant’s trial, and that the present defendant’s trial would be protected under Rwandan law by additional assurances and protections afforded to cases referred by the Tribunal; the former case did not have these protections. Thus, the Chamber found that the differences between the two cases were significant such that the Amnesty report could not have had an impact on the referral decision.

Pursuant to the above, the Appeals Chamber dismissed the defendant’s third and fourth motions to consider additional evidence.

Defense Challenge to the Impugned Decision—

The defendant challenged the decision to refer the case to the domestic Rwandan court system. He advanced ten grounds upon which he contested the Referral Chamber’s decision. Under Rule 11, the Tribunal may refer a case to national proceedings, upon findings that the defendant will receive a fair trial, and that the defendant will not be subjected to the death penalty.

The Referral Chamber holds the discretion to refer a case to national proceedings, and the Appeals Chamber will only interfere if the Referral Chamber’s decision was based on discernible error.

GROUND 1: The Prosecution declared that if the case were referred to Rwanda, it would no longer pursue joint criminal enterprise against the defendant as a mode of liability. The Referral Chamber found that it was not necessary to amend the Indictment against the defendant based upon this concession, finding that the defendant’s rights would not be prejudiced. The defendant argued that the Referral Chamber erred in failing to order the Prosecution to amend the Indictment to reflect the change in mode of liability.

  • The Appeals Chamber found that failing to amend the indictment would subject the defendant to an indictment that did not clearly and accurately inform him of the charges he faces. The Appeals Chamber found that the Referral Chamber erred in not requiring amendment of the Indictment to give effect to the concession that joint criminal enterprise liability would not be pursued at the national level. The Appeals Chamber ordered the Prosecution to amend the Indictment to reflect its concession as to joint criminal enterprise liability.

GROUND 2: Noting that U.N. Security Council Resolutions referring the situation in Rwanda to the International Tribunals contemplated transferring the cases of intermediate and lower-ranked Rwandan officials to national courts, rather than the transfer of cases involving senior official, the defendant argued that the Referral Chamber erred in finding that his case could be transferred to Rwandan courts.

  • The Appeals Chamber found that the Referral Chamber was bound by Rule 11 bis of the Rules when making its decision whether to refer the case, which did not require the consideration of the defendant’s level of responsibility
  • The Appeals Chamber further found that the U.N. Resolutions left the implementation strategy for the Rwandan Tribunals to the discretion of the Tribunal. The U.N. Resolutions did not require the referral of only lower-level defendants to national courts. The Referral Chamber did not err in finding that it could refer the case to Rwanda
  • The Appeals Chamber dismissed the defendant’s second ground of appeal

 

GROUND 3: The defendant argued that the Referral Chamber erred in finding that transferring the case to Rwanda would not lead to undue delay of the trial. The defendant noted four specific conditions which it contended that the Chamber did not adequately assess.

  • The Appeals Chamber noted that the Referral Chamber addressed and rejected the defendant’s arguments regarding the four factor’s impact on undue delay, and that he could not use an appeal to relitigate the issues
  • Regarding any error of the Referral Chamber to fail to consider the cumulative effects of the factors, the Appeals Chamber found that the consideration of the four factors cumulatively would not have changed the decision
  • The Appeals Chamber rejected the third ground of appeal

GROUND 4: The defendant argued that the Referral Chamber erred in failing to establish that a presumption of innocence against the defendant would in fact be maintained during the national proceedings.

  • The Appeals Chamber found that, when read in its entire context, the Impugned Decision indicates that the Referral Chamber adequately considered whether the defendant’s right to presumed innocence would be respected in practice in national proceedings
  • The Appeals Chamber dismissed the fourth ground of appeal

GROUND 5: The defendant argued that he had previously been convicted in absentia through proceedings in Rwanda, and that therefore the referral of his case to Rwanda would violate Nin bis in idem. The Referral Chamber had found that the previous Rwanda judgment against the defendant was vacated by the Court of Appeals, and thus proceedings in Rwanda would not violate double jeopardy. The defendant noted that subsequent confusion around the disposition of that case (whether he had been convicted or acquitted) meant that the Chamber could not definitively find that a conviction had been nullified, and thus whether national proceedings would violate double jeopardy.

  • The Appeals Chamber noted that evidence as to the previous Rwandan judgment does not establish whether the defendant was acquitted or convicted in that case. Thus, the Referral Chamber erred in basing its decision on the double jeopardy question on a finding that the defendant’s conviction had been vacated.
  • The Appeals Chamber found, however, that the national Court of Appeals had vacated the judgment in that case, regardless of which finding on guilt was reached. Therefore, the Referral Chamber did not err in finding that national proceedings would not violate double jeopardy
  • The Appeals Chamber dismissed ground five

GROUND SIX: The defendant argued that the Referral Chamber erred in finding that conditions of detention in Rwanda would meet international standards of detention, in light of evidence that allegedly showed that prison conditions in Rwanda do not meet international standards.

  • The Appeals Chamber found that the Impugned Decision properly considered the legal framework in Rwanda, and its implications for meeting international standards of detention
  • The Appeals Chamber found that the evidence presented, purporting to show the poor running of the Rwandan prison system, was irrelevant in that it concerned the total national prison system, and not the separate facilities for cases referred from the Tribunal
  • The Appeals Chamber dismissed ground six

GROUND 7: The defendant argued that the Referral Chamber erred in finding that he would, in practice, have access to defense witnesses under the same conditions as those testifying for the prosecution.

  • The Appeals Chamber found that the Referral Chamber sufficiently considered the defendant’s access to witnesses. Its considerations went beyond the legal framework in Rwanda, and examined in length factors implicating the defendant’s ability to access witnesses
  • The Appeals Chamber found that the defendant failed to show that the Referral Chamber erred in its findings underlying its decision
  • The Appeals Chamber dismissed ground seven

GROUND 8: The defendant argued that the Referral Chamber erred in finding that his right to an effective defense would be maintained in Rwanda. He argued that the Referral Chamber failed to ensure that Rwanda would be able to provide sufficient funds to defense counsel to carry out necessary work.

  • The Appeals Chamber found that the Referral Chamber did not err in considering all of the relevant Rwandan law regarding the right of an indigent defendant to have effective assistance of counsel
  • The Appeals Chamber noted that should adequate funding not be provided, the case is subject to revocation from Rwandan proceedings
  • The Appeals Chamber dismissed ground eight

GROUND 9: The Referral Chamber held that it would be in the best interests of justice if the Rwandan proceedings were subject to some form of outside monitoring. The defendant argued that the Referral Chamber erred in allowing transfer of his case before an independent monitoring system in Rwanda has been established.

  • The Appeals Chamber found that the defendant had not established how the fact that he has yet to be informed of which organization will monitor the national proceedings substantive affects his rights
  • The Appeals Chamber found that the defendant failed to establish how his transfer to Rwanda before the actual appointment of monitors would substantively affect his rights or deprive him of the monitoring protections implemented by the Referral Chamber. The Appeals Chamber also noted that national proceedings are subject to revocation if monitors are not appointed
  • The Appeals Chamber dismissed ground nine

GROUND 10: The defendant argued that the Referral Chamber directly interfered with proceedings of the national trial when it imposed conditions on any national proceedings. The defendant argued that the Referral Chamber does not have the power to directly interfere with national proceedings, and thus exceeded its jurisdiction. Further, the defendant argued that the fact that the Referral Chamber found it necessary to impose additional conditions on the national proceeding, meant that the national proceedings would not sufficiently guarantee his rights to a fair trial. As such, the defendant argued that the Referral Chamber erred in allowing the transfer.

  • The Appeals Chamber found that while a referral chamber may add additional considerations on to a transfer case in order to ensure that a defendant will receive a fair national trial, it must be satisfied that the basic national proceedings will afford the defendant rights comparable to Article 20 of the Statute. Thus, in allowing the transfer, the Referral Chamber found that at base, the national proceedings would afford the defendant adequate rights
  • The Appeals Chamber also noted that the conditions imposed upon the national proceedings are not mandatory: the Rwandan legal system may decline to accept the referred case if it does not wish to comply with the imposed conditions. Thus, the Referral Decision does not mandate any course of action from the national system, nor interfere with the independent and discretionary decisions of the national system. The Appeals Chamber found that the Referral Chamber has not exceeded its jurisdiction.
  • The Appeals Chamber dismissed ground ten

Prosecution’s Appeal—

The Prosecution appealed two of the four conditions upon which the Referral Chamber rested the transfer of the case to national courts. The first condition challenged was that Rwanda provide the defendant with a lawyer with previous international experience. The second condition was that the Rwandan authorities provide the Tribunal with a written assurance that Articles 54 and 55 of the Code of Criminal Procedure would not be used during the trial. The Prosecution argued that while a referral chamber may impose conditions on the transfer of cases to national courts, its discretion to do so was not unlimited, and the conditions must be limited to that which is necessary to ensure a fair national trial. The Prosecution argued that these conditions were not necessary to afford the defendant a fair trial, and as such constituted abuse of discretion. Further, the Prosecution argued that the referral chamber may not interfere too far on the sovereign conduct of the national court system, and argued that the two imposed conditions reached beyond the referral chamber’s authority to impose conditions on sovereign systems.

The Appeals Chamber found that there is no requirement at the Tribunal, or in any relevant international legal instrument, that an appointed attorney have prior relevant international experience. The Appeals Chamber found that if Rwanda appoints a national attorney who has all of the relevant national qualifications and licenses, the attorney provides the defendant adequate representation of counsel. Thus, it found that the Referral Chamber erred in requiring the first condition. The Appeals Chamber set aside the first condition.

The Appeals Chamber found that in regards to the second challenged condition, the Referral Chamber was concerned that the functioning of domestic Rwandan criminal procedure could potentially open defense witnesses to prosecution for acts testified to during the trial of a referred case. This could thus impact the defense’s ability to access witnesses for his case. The condition was meant to allay witness fears of prosecution, in order to increase defense access. The Appeals Chamber found, however, that following amendments to transfer laws in 2009, and improvements in witness protection, adequate safeguards are in place to address witness concerns and increase the likelihood of their appearance. As such, the Appeals Chamber found that the condition was not necessary to ensure a fair trial, that the concerns it addressed were speculative, and thus the Referral Chamber erred in requiring it. The Appeals Chamber set aside the second condition.

To access the full Decision, click here.

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6 November 2013 – NEWS ABOUT THE COURTS

UN address ICC issues, including Kenya deferral and Sudan’s outstanding warrants: On Thursday, 31 October 2013, ICC President Sang-Hyung Song updated the UNGA on the workings of the Court, including the Kenya, Libya, Sudan and Ivory Coast cases. He asked all ICC stakeholders to uphold the integrity of the Rome Statute, and particularly highlighted the support needed from the UN to address the outstanding warrants in Sudan against the four individuals charged with committing genocide in Darfur. In a separate meeting, the UNSC representatives from Kenya and the AU were addressing the ICC concerning the possibility of deferring the ICC cases against President Uhuru Kenyatta and Deputy President William Ruto for one year. Under Article 16 of the Rome Statute, a prosecution can be deferred for up to 12 months by a resolution of the UNSC under Chapter VII of the UN Charter. (To read more about this topic, please click here.) (The Star, UPI).

Serbia to receive positive report from ICTY: Rasim Ljajic, the president of the National Council for the ICTY Cooperation, will mention Serbia’s cooperation with the ICTY in a report he will deliver to the UN in December, specifically referring to Serbia promptly delivering documents and allowing access to witnesses and archives. Ljajic met with ICTY prosecutor Serge Brammertz on Monday, 4 November 2013, and he met  with Serbian prime minister Ivica Dacic and the chief Serbian prosecutor Vladimir Vucicevic on Tuesday, 5 November 2013. Ljajic and Brammertz discussed placing individuals sentenced by the ICTY into Serbian prisons, a possibility the Tribunal had previously declined. (World Bulletin).

Witness testifies that Karadzic was a weak leader: Former Bosnian Serb leader Radovan Karadzic’s trial resumed this week, with Karadzic’s former aide Jovan Zametica testifying that Karadzic had not had effective control over his army. Zametica joined the Republika Srpska (RS) in 1993 and became an advisor to Karazdic in 1994. He testified that Karadzic had been a weak leader of the RS; his army had apparently been disobedient, he had allowed local chieftains to make important decisions, and he had simply been a representative leader to the international community. He also asserted that Karadzic had been tolerant of non-Serbs, as shown by the fact that Zametica is a Muslim. Karadzic is charged with genocide before the ICTY. (Institute for War & Peace Reporting).

ICTR will help Rwanda with transferred genocide cases: The ICTR has promised to help the Rwandan National Prosecution Authority with the genocide cases the ICTR has transferred to Rwanda. ICTR prosecutor general Hassan Bubacar Jallow explained that although the work of the ICTR is winding down, it will continue to support the Rwandan prosecution to ensure that the cases are handled successfully and that the genocide suspects, many of whom have fled to France, are caught and prosecuted. Jallow, ICTR President Judge Vagn Joensen, and several senior officials from the ICTR are currently in Rwanda and will meet with the supreme court judges and Minister of Justice Johnston Busingye to review ICTR procedures. (Rwanda Focus).

MICT is tracking “big fish” wanted for Darfur genocide: Jallow announced on Monday, 4 November 2013 that three of the most wanted suspects for the genocide in Darfur will likely be caught soon, because the Mechanism of the International Criminal Tribunals (MICT) was able to obtain information that could lead to their arrest. The three fugitives are Felicien Kabuga, who allegedly financed the genocide, Protais Mpiranya, the former Presidential Guards commandant, and Augustin Bizimana, the former defense minister. Referred to as “big fish”, their cases would be handled by the MICT, as opposed to being transferred to Rwanda. (The New Times).

STL fines defense in Hariri case: Earlier this week, the STL fined defense lawyers for making “frivolous” appeals in order to delay the start date of the trial concerning the assassination of former Lebanese Prime Minister Rafic Hariri. The defense appealed the appointment of Judge Janet Nosworthy, who replaced the former president of the trial chamber upon his resignation in September, which was deemed a “frivolous” delay tactic by the Court. The defense also asserted that it needs more time to prepare for trial due to the high volume of evidence in the case, and that Lebanon was not cooperating in assisting the defense’s investigations. The Court did not reveal how much the defense was fined. (The Daily Star).

British MPs call executions in Iran crimes against humanity: British MPs have declared that the execution of 16 political prisoners on 4 October 2013 in Zahedan, Iran is a crime against humanity, and are calling on the UN to investigate these events. The British Parliamentary Committee for Iran Freedom stated that Mohammad Marzieh, the prosecutor general of Zahedan, had confirmed that the prisoners had been executed because they had killed revolutionary guards in Saravan. The committee also noted, however, that Hedayatollah Mir-Moradzehi, Saravan’s representative in the Iranian Parliament, stated that it was still unclear who had killed the revolutionary guards. The committee recommended that the UN Security Council and the UN Human Rights Council review the events. (Foreign Affairs Committee of the National Council of Resistance of Iran).

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