Archive for category Rwanda
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).
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).
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).
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).
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).
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
- 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.
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
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.
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).
AU decision to defer Kenyatta, Ruto, and Bashir trials draws mixed responses: In support of the AU urging the ICC to defer the trials of Sudanese President Omar al-Bashir, Kenyan President Uhuru Kenyatta, and Kenyan Deputy President William Ruto, Ethiopian representatives said that heads of state should not be prosecuted while they are still in office and that Ruto and Kenyatta’s cases should be referred to Kenyan domestic courts, whereas approximately 142 African human rights and activist groups urged AU leaders to support the ICC on Monday, 14 October 2013. Former UN Secretary-General Kofi Annan and Archbishop Desmond Tutu have also voiced their support for the ICC. Kenyan Senator Kipchumba Murkomen, who had initiated Kenya’s withdrawal from the ICC, called on Kenya’s majority leader this week to introduce a measure to ratify the AU’s deferment decision. According to AU protocol sources, 14 heads of state from Uganda, Ethiopia, Somalia, Kenya, Sudan, Djibouti, Tanzania, Rwanda, Namibia, South Africa, Zimbabwe, Gambia, Côte d’Ivoire, and Nigeria were present at the summit. (Daily Trust, Voice of America, Business Day). For more information on this topic, please click here and here.
France speaks out against deaths of UN-AU forces in Darfur: On Monday, 14 October 2013, French authorities called on the Sudanese government to investigate an attack that killed three Senegalese soldiers serving in the UN-African Union peace force (UNAMIS) on 13 October 2013, and the murder of a Zambian UN-AU soldier in Western Sudan on 11 October 2013. The French government also urged the Sudanese government to bring those responsible for the deaths to justice, commented on the deteriorating state of security in Sudan, and asked the parties fighting in Darfur to adopt the agreement made in Doha several years ago. (Kuwait News Agency).
STL announces indictment against fifth Hezbollah suspect in Hariri assassination: On 10 October 2013, the STL lifted the confidentiality order on its indictment against Hezbollah member Hassan Habib Merhi, who has been indicted as the fifth suspect in the 2005 assassination of former Prime Minister Rafik Hariri. The STL stated that an arrest warrant and indictment for Merhi were delivered to the Lebanese government in August and that Merhi’s trial will be conducted separately from the trial of the four suspects previously indicted. None of the five witnesses, who are charged with involvement in the 2005 Beirut attack, have been arrested. (The Daily Star).
Taylor fears he could be killed in UK jail: In a letter to the Special Court for Sierra Leone, former Liberian President Charles Taylor justified his request to serve his 50-year sentence in a Rwandan jail by expressing concern that he could be seriously injured or killed by fellow inmates in a UK jail. He fears that inmates of West African and specifically Sierra Leonean descent would seek retribution against him in jail, referencing General Radislav Krstić, who was convicted by the ICTY and attacked by three inmates in a UK jail in 2010. He also cited the lower cost of Rwandan jails and the cost of travel a UK jail would impose upon his family. The request was denied; the court can only send prisoners to states with which it has an enforcement agreement. (The New Dawn).
Rwandan genocide suspect claims he does not understand Rwandan language: Since former MRND Secretary General Bernard Munyagishari’s transfer to Rwanda by the ICTR in July, he has been attempting to have his trial conducted in French rather than the Rwandan language Kinyarwanda, which he claims he does not understand. Relying on a 1982 judgment by the Appeals Court of Ruhengeri, in which Munyagishari was accused of rape and defended himself in Kinyarwanda, the ICTR denied his request. Léon Mugesera, a former Rwandan politician who had also been transferred to the ICTR, was denied the same request last year, because the court had wanted to analyze his 1992 speech concerning the genocide in its original language of Kinyarwanda. Munyagishari is accused of committing genocide in Gisenyi, and an appeal concerning his right to an interpreter is currently pending. (Hirondelle News Agency).
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.”
Comoros referral assigned to ICC Pre-Trial Chamber: The alleged 31 May 2010, Israeli raid on passenger vessels in the territorial jurisdictions of Comoros, Cambodia, and Greece has been assigned by the ICC President to Pre-Trial Chamber I. Comoros, a party to the Rome Statute, referred the situation to the ICC on 14 May 2013, claiming Israel Defence Forces attacked seven registered vessels in the international waters killing nine and injuring dozens. The decision to commence investigations into the situation is ultimately that of the ICC Prosecutor. However, as a matter of procedure, the assignment permits the Chamber to deal with “any matter, request or information arising out of the situation.”
NGO reports admitted against Bemba at ICC: On 27 June 2013, ICC judges in the case against former Congolese Vice President Jean-Pierre Bemba ruled admissible NGO reports alleging Bemba had knowledge of the abuses by his troops. The judges found the reports “relevant to determining [Bemba’s] ability to impose disciplinary measures and his power to prevent and repress the commission of crimes.” The judges also allowed into evidence a BBC article from 10 July 2001, recounting Bemba’s announcement that the Commander of the Congolese Liberation Front was arrested for “poor supervision of troops.” Bemba’s lawyers disagreed with the introduction of the NGO reports and the article, arguing all were unreliable and irrelevant.
Workload of ICT investigation agency increases: The ICT agency responsible for investigating allegations of crimes against humanity in Bangladesh is faced with 13 new cases. With more than 500 already proceeding, the agency expects the investigations of the 13 new suspects to take close to a year to complete. The agency receives the allegations after victims’ families file with the local police station and then submit investigated cases to the ICT for trial.
Canada acquits Rwandan of genocide: A suspect in the 1994 Rwandan massacre was acquitted by the Ontario Superior Court yesterday, 9 July. The court found insufficient evidence to convict Jacques Mungwarere of genocide and crimes against humanity under Canadian law. The prosecution has 30 days to file an appeal.