Archive for category SCSL

6 January 2014 – NEWS ABOUT THE COURTS

US War Crimes Envoy Stephen Rapp travels to Sri Lanka:  US Ambassador for Global Criminal Justice, Stephen Rapp, will spend five days in Sri Lanka discussing rights and reconciliation following the decades-long separatist war.  Sri Lanka has resisted calls to investigate allegations that war crimes were committed with a estimated result of 100,000 lost between the years of 1972 and 2009.  (AFP).

ICC claim alleges military war crimes in Egypt:  The Muslim Brotherhood in Egypt has gone international with its complaint against the current Egyptian government.  A team of lawyers representing the Brotherhood has filed a complaint with the ICC alleging widespread crimes against humanity by the Egyptian military.  (For additional information on this topic, click here) (Globe and Mail, Daily News).

Ongoing Egypt unrest prompts arrest of MB sympathizers:  The Muslim Brotherhood has accused Egyptian police of plotting violent attacks to support an increase in arrests.  The Brotherhood denies that it practices violence.  However, the Egyptian authorities insist that the Brotherhood has sent members to the Gaza Strip to receive training from Hamas.  (Aljazeera).

SCSL concludes operations:  The Special Court of Sierra Leone closes its doors after 11 years of service.  Among other accomplishments, the trials saw first-ever convictions for attacks against UN peacekeepers, forced marriage as a crime against humanity, and for the use of child soldiers.  The success of the special court sets an important precedent for future courts and tribunals.  (For additional information on this topic, click here) (UN News, RTT News).

UN Commissioner applauds Nepal High Court in amnesty decision:  High Commissioner, Navi Pillay, welcomes the decision Nepal’s High Court to withhold amnesty for serious human rights violations committed during the country’s decade long civil war.  Pillay believes that this decision by the High Court will ensure that the Truth and Reconciliation Commission will not be abused or delay criminal investigations and prosecutions of conflict-related cases.  (UN News).

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5 December 2013 – NEWS ABOUT THE COURTS

U.K. threatens Sri Lanka with international inquiry: The U.K. Secretary of State for Foreign and Commonwealth Affairs, William Hague, warned Sri Lanka that if it did not investigate allegations of sexual violence committed by government forces during its 26-year civil war it would be subject to an international inquiry. Hague warned the country that it had until the Human Rights Council met in March to conduct an independent and credible investigation. Sri Lanka is one country that has not yet signed the U.K.’s declaration to end sexual violence during conflict. (Sunday Times).

Bosnian Serbs arrested for CAH: The Bosnian prosecution office has charged nine suspects with crimes against humanity related to the country’s 1992-1995 civil war. The nine Bosnian Serb policeman allegedly “expelled, deported, illegally imprisoned, tortured, or killed non-Serbian civilians . . . in a systematic campaign against the Muslim and Croatian populations.” Nearly 100,000 died and millions were replaced as a result of the civil war. (Radio Free Europe Radio Liberty).

Bemba restrictions lifted at ICC: An ICC judge has ordered the immediate lifting of detention restrictions placed on Jean-Pierre Bemba and his recently imprisoned lead defense counsel, Aime Kilolo-Musamba. During detention, the two had been restricted to 30 minute phone calls, one hour monitored visits with family, and an initial 72 hour of no contact. Bemba argued the restrictions violated his right to counsel and Kilolo said it prevented him from presenting an adequate defense. Kilolo was arrested in November on allegations of witness interference and forged evidence. (Bemba Trial).

ICC investigations flawed, says Kenyan lawyers: Lawyers met in Nairobi on Tuesday, 3 December 2013, to protest ICC Chief Prosecutor Fatou Bensouda’s handling of investigations into Kenya. The lawyers claimed Bensouda and her predecessor forged evidence and relied on unreliable witnesses. One lawyer was quoted as saying: “It appears as though the court was determined to confirm the charges and the prosecution was convinced that there were substantial grounds to proceed with the case even though the investigations were questionable.” The ICC is currently trying Kenyan Deputy President William Ruto and the case against the country’s sitting President will commence in February 2014. (All Africa).

Cooperation between ICTY and Serbia positive: It is expected the chief prosecutor of the ICTY, Serge Brammertz, will report positively to the U.N. Security Council on Serbia’s cooperation with the tribunal on Thursday, 5 December 2013. Brammertz met with officials in Serbia last month “to discuss transfer of documents and access to government archives and witnesses.” It appears the transition of matters between the ICTY and Serbia has gone smoothly and efficiently. Brammertz presents his findings twice a year to the Security Council. (In Serbia).

Bosnian war criminals to be released: A local court that issued judgements in over 100 cases since its establishment in 2005 to aid the ICTY is expected to release hundreds of Bosnian war criminals. In July 2013, the European Court of Human Rights ruled the local court erred in convicting and punishing accused under a 2003 criminal code. The ECHR concluded the court should have been applying a less stringent 1976 statute that was in force at the time the crimes were committed. The local court will now need to schedule retrials. (The Malay Mail).

Indonesia offers support to Cambodia and Thailand after ICJ verdict: Indonesia has pledged to aid Cambodia and Thailand as the two countries carry out the ICJ’s recent decision concerning the ownership of a Hindu temple.  Indonesia stated it was “ready to assist in whatever means if both countries ask for its support in implementing the ICJ order.” In November 2013, the ICJ granted Cambodia ownership of the temple located near the Cambodian-Thai border. (Phnom Penh Post).

Sierra Leone Residual Court elects Kenya’s Wiki as President: Kenya’s Phillip Waki was elected President of the Residual Special Court for Sierra Leone on 3 December 2013. Waki previously served as an alternate appeals judge at the SCSL and sat on the Kenyan Court of Appeals and High Court. Justice Jon Kamanda of Sierra Leone was elected as Vice President. (The Star).

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4 December 2013 – NEWS ABOUT THE COURTS

Bensouda says ICC judicial institution only: The ICC will remain free from political interference, says ICC prosecutor Fatou Bensouda. Speaking at the ICC Assembly of States Parties last week, Bensouda said the court is an independent party and will implement amendments to the rules of procedure and evidence passed by the ASP. The ASP decided last week to amend the rules to permit Kenyan President Uhuru Kenyatta and Deputy President William Ruto to be represented by their attorneys during proceedings in The Hague. (All Africa).

New Sierra Leone Residual Court: The legacy of the Special Court of Sierra Leone was handed over to the government on Monday, 2 December 2013. The government will begin operating the Residual Court and continue matters of the SCSL, such as the case against former Armed Forces Revolutionary Council leader Johnny Paul Koroma. Nearly three million dollars has been made to the Residual Court by countries including the Netherlands and America. Former Prosecutor and now American Ambassador at Large for War Crimes Stephen Rapp said the new Court was “an important component in the justice system.” (Awoko).

HRW report focuses on Habre: On Tuesday, 3 December 2013, Human Rights Watch released a report charging the former dictator of Chad, Hissene Habre, with “systematic abuses.” It is reported the former dictator “directed and controlled political police, who tortured and killed those who opposed him or those who simply belonged to the wrong ethnic group.” Habre is being tried by a special court in Senegal for crimes against humanity and war crimes related to his 1982-1990 rule. (UPI).

ICTY 20th anniversary: ICC President Theordor Meron spoke at a conference in Bosnia last week celebrating the 20th anniversary of the ICTY. Meron faced protestors and victims of the early 1990s Bosnian War who displayed signs reading “R.I.P Justice.” Many protesters voiced disappointment in the court’s recent decisions to acquit of all charges senior leaders of the Yugoslav and Serbian army. Despite the opposition, Meron defended the tribunal and stated its work had “exceeded expectations.” (Institute for War & Peace Reporting).

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3 December 2013 – NEWS ABOUT THE COURTS

U.N. investigation of Syrian war crimes points to Assad and other senior officials: Navi Pillay, the UN High Commissioner for Human Rights, announced on Monday, 2 December 2013 that UN investigations are increasingly revealing that senior Syrian officials, including President Bashar Assad, committed crimes against humanity and war crimes in Syria. Pillay’s statements added to the growing pressure on Syria to take action before the peace conference set to take place in Geneva in January. Pillay also stated that the list of suspected criminals will remained sealed until national or international authorities request it in order to conduct a credible investigation and possibly commence prosecution. Syrian Deputy Foreign Minister Faisal Mekdad rejected Pillay’s remarks. (The Washington Post).

Kilolo Musamba, Wandu, and Bemba appear before ICC: On 27 November 2013, Aimé Kilolo Musamba, Fidèle Babala Wandu, and Jean-Pierre Bemba Gombo, who were arrested and charged with having committed offences against the administration of justice in the trial of Bemba, appeared before Pre-Trial Chamber II of the ICC. Judge Cuno Tarfusser confirmed the identity of the three suspects, explained the charges against them and their rights under the Rome Statute, and scheduled the confirmation of charges proceeding, which will determine whether the case will be heard before the Trial Chamber. Bemba is separately charged with crimes against humanity and war crimes committed in the Central African Republic between 2002 and 2003; Kilolo Musamba was his lead counsel and Wandu was a member of the DRC Parliament and Deputy Secretary General of the MLC. (ICC-CPI).

ASP issues resolution to amend ICC Rules: In its twelfth session, the Assembly of States Parties to the Rome Statute (ASP) adopted eight resolutions, including a resolution on Amendments to the Rules of Procedure and Evidence. Rule 68 has been amended to facilitate the use of prior recorded testimony in trial; Rule 100 now eases the ability of the Court to sit in a State other than the host State, as well as the decision to hear a case in whole or in part; and the newly adopted Rules 134 bis, ter and quater regulate the use of video technology, excusal from a defendant’s presence at trial, and a defendant’s excusal from presence at trial due to extraordinary public duties. The Rules were amended in order to improve the efficiency of the ICC while protecting defendants’ rights. Other resolutions concerned the 2014 budget, totaling 121.6 million euro; construction of the permanent premises of the ICC; cooperation to enhance expedition arrest of suspects; complementarity; the establishment of the Independent Oversight Mechanism; and strengthening the ICC and the ASP. (ICC-CPI).

Kenya will not submit Kenyatta records to ICC: On Monday, 2 December 2013, ICC Chief Prosecutor Fatou Bensouda accused Kenya of failing to comply with the Office of the Prosecutor’s (OTP) April 2012 request for Kenyan President Uhuru Kenyatta’s financial records and other relevant documents. Bensouda stated that the records are relevant to several issues in the trial, including the allegation that Kenyatta financed several of the crimes with which he is charged before the ICC. According to Bensouda, Kenya has refused repeated requests for these records for 19 months, which is why the OTP is now asking the judges in the trial to refer this matter to the ASP. (Expatica.com).

Trial Chamber requests list of first 10 witnesses against Kenyatta: On Monday, 2 December 2013, the judges presiding over Kenyatta’s trial instructed Bensouda to submit a list of the first 10 witnesses she will call in the prosecution of Kenyatta, as well as the order in which they will be called, by 16 December 2013. Once the trial begins on 5 February 2014, the OTP must submit monthly updates of its witness list to the Trial Chamber. Even though the Trial Chamber would like both the prosecution and defense to limit their questioning of each witness to four hours, it is expected that the prosecution will question 32 witnesses over the course of 190 hours, and that the defense will take about 400 hours to cross-examine all of the prosecution witnesses. (Capital News).

Seselj demands dismissal of trial and compensation: Following the disqualification of Judge Frederik Harhoff, Serbian politician Vojislav Seselj demanded that the ICTY throw out the case against him and compensate him with 12 million euro. He is charged with committing war crimes and crimes against humanity in the former Yugoslavia, and had opposed the replacement appointment of Judge Mandiaye Niang, arguing that such a replacement should not occur a few months before the rendering of the judgment, since the new judge was unfamiliar with the trial. The prosecution countered with the precedent of the case against Slobodan Milosevic, in which a judge had stepped down at a late stage in the proceedings, and his replacement had certified that he had familiarized himself with the trial record. The prosecution therefore requested that the proceedings continue as soon as Judge Niang has familiarized himself with the existing record. (Institute for War & Peace Reporting).

Human Rights Watch calls on ICC to expedite Afghanistan investigation: Following the ICC’s conclusion in November that war crimes and crimes against humanity have been committed in Afghanistan, Human Rights Watch urged the OTP of the ICC to expedite its inquiry into these crimes. Specifically, Human Rights Watch called for a fact-finding mission to Afghanistan, both to collect testimonies and to improve communication with the Afghan government and various international organizations. The investigation began in 2007, during which time the OTP has considered whether or not to formally investigate these alleged crimes. (Firstpost).

Residual Special Court for Sierra Leone judges sworn in: On Monday, 2 December 2013, 16 judges were sworn in for the Residual Special Court for Sierra Leone, which will replace the SCSL. The U.N. Secretary General appointed ten judges, and the government of Sierra Leone appointed six judges, all of whom will serve part-time on a roster. Witnessed by Sierra Leonean Attorney-General and Minister of Justice Franklyn Bai Kargbo and UN Under-Secretary-General for Legal Affairs Miguel de Serpa Soares, the judges promised they would “without fear or favour, affection or ill-will, serve as a Judge of the Residual Special Court for Sierra Leone honestly, faithfully, impartially and conscientiously.” The Residual Court will resolve the ongoing obligations of the SCSL, which is due to close later this month. (Africa News).

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19 November 2013 – NEWS ABOUT THE COURTS

Unnamed witness called by judges testifies in Bemba trial: A witness under the pseudonym “Witness CHM-01” testified at the trial against Jean-Pierre Bemba on Monday, 18 November 2013 before the ICC. The judges, as allowed by Articles 64 and 69, had called the witness; none of the parties in the trial had called him to provide evidence, even though several witnesses from both sides had mentioned his name. The witness is testifying through a video link from an undisclosed location. It is not yet clear how the witness was involved in the MLC. Mr. Bemba is charged with committing war crimes and crimes against humanity in the Central African Republic between October 2002 and March 2003. (Open Society Justice Initiative).

African Court to hold conference to raise awareness: The African Court on Human and Peoples’ Rights is organizing a continental conference in order to raise awareness about the court’s activities and promote human rights in African states. The Court feels that it has been underutilized; in seven years, it has only handled 28 petitions concerning contentious matters and five requests for advisory opinions. Senior officials believe that this under-utilization is due to the fact that the individuals and entities who are allowed to bring petitions before the Court are largely unaware of its existence. The conference will be attended by the president and judges of the court, representatives from international organizations, and Professor Makame Mbarawa, the Tanzanian Minister of Communication, Science and Technology. (Tanzania Daily News).

Leaders urge Sri Lanka to investigate war crimes following summit: During the Commonwealth Summit, which was held in Sri Lanka over the course of three days, several human rights groups appealed to world leaders to pressure Sri Lankan President Mahinda Rajapaksa to investigate war crimes that allegedly took place during and after the civil war against the Liberation Tigers of Tamil Eelam. UK Foreign Secretary William Hague, who was in attendance, stated that it would be possible for Sri Lanka to set up a war crimes tribunal before March, to which President Rajapaksa responded that Sri Lanka had started investigations, but that this process will take longer than a few months. He had previously stated that his troops did not commit war crimes during the conflict, which lasted 26 years. Secretary Hague’s comments followed UK Prime Minister David Cameron’s condemnation of the alleged war crimes, and his warning of a UN-led investigation should Sri Lanka fail to launch an independent inquiry. (To read more about this topic, please click here.) (Voice of America, BBC).

Nine AU states may be barred from voting on Rome Statute amendments: The ICC announced that nine out of its 122 members are in arrears and will therefore be unable to vote in this week’s Assembly of State Parties meeting in The Hague. Though the list of states has not been officially released, Tanzania, Senegal, Niger, Ghana, Gabon, Djibouti, Comoros, Guinea, and Liberia are all indebted to the Court and may lose their voting rights. These votes may be necessary to amend the ICC rules of procedure laid out in the Rome Statute, an effort Kenya is leading in order to excuse President Uhuru Kenyatta and Deputy President William Ruto from attendance at their trials, to amend Article 27 to grant sitting heads of governments immunity, and to amend Article 70 so that court officials can be charged with offenses against administration of justice and the powers of the Independent Oversight Mechanism may be expanded. If all 122 members attend the meeting, Kenya needs 81 members to support its proposals. (The Star).

Botswanan judge appointed to Sierra Leone court: On 16 October 2013, the Botswanan Administration of Justice announced that Ban Ki-Moon, Secretary General of the United Nations, appointed the Hon. Justice Dr. O.B.K. Dingake as a judge on the Residual Special Court for Sierra Leone, which is continuing the mandate of the Special Court of Sierra Leone. Justice Dingake is a jurist and scholar, and will sit on the Court as required by the president of the Court. (Government of Botswana).

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6 November 2013 — DECISION REVIEW

Court/Tribunal: Special Court for Sierra Leone

Decision Title: Judgment in Contempt Proceedings

Chamber: Appeals Chamber

Case Name: Independent Counsel against Prince Taylor

Date: 30 October 2013

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Decision Background: This decision is the first acquittal in all of the cases before the SCSL. It is also the final case before the SCSL; the decision completes all of the cases before the SCSL.

On 4 October 2012, Trial Chamber II issued a decision finding that there was a prima facie case that the appellant, Prince Taylor, might be in contempt of court through his attempts to bribe and otherwise convince witnesses to recant their testimony or deny Prince Taylor’s involvement in the charged criminal acts. The Appellant was charged with a total of none counts of knowingly and willfully interfering with the Special Court’s administration of justice.

In a decision rendered on 25 January 2013, the Trial Chamber II found the appellant guilty on five of the nine charges. Prince Taylor was acquitted of the charges involving the bribery of witnesses to recant testimony. On 08 February 2013, the appellant was sentenced to a total term of two and one-half years imprisonment. On 15 March 2013, the appellant filed an appeal of his sentence. On 14 May 2013, the Appeals Chamber rejected the filings for not being properly filed before the Court. The appellant re-filed his appeal on 21 May 2013.

Decision Review: The standard of review for appeal that applies against trial judgments also applies for contempt findings. For errors of law, the Appeals Chamber will consider only errors of law that would invalidate the Trial Chamber’s decision. The appellant bears the burden of clearly establishing how an alleged legal error invalidates the lower court’s decision. For errors of fact, the Appeals Chamber will only reverse a lower court’s factual findings if the error occasioned a miscarriage of justice. The appellant must state what was the error of fact, and bears the burden of showing how that error occasioned a miscarriage of justice. For an error to occasion a miscarriage of justice, the factual error must have been critical to the verdict reached.

The appellant argued that the Trial Chamber committed error of fact by relying on evidence provided by Eric Koi Senessie. The Appeals Chamber first noted that it is not per se error to convict based on the evidence or testimony of a single witness, and the corroboration of that single witness’s testimony is not legally required. The question is whether the single evidence or testimony is credible, which the Trial Chamber enjoys great discretion to decide. The main question that the Trial Chamber must address to ascertain witness credibility, is whether the witness entertained an ulterior motive in offering the evidence. While the Trial Chamber may rely on uncorroborated evidence or testimony, it must do so with an appropriate amount of caution, to ascertain the witness’s credibility.

The Appeals Chamber found that the Trial Chamber did not exercise due caution in accepting the testimony from Senessie. The Chamber noted that Senessie was an accomplice witness who lied under oath at his own trial, was disbelieved, and was convicted by the judge currently presiding over the Taylor case, for substantively the same crimes alleged against Taylor. Senessie himself was also convicted for trying to bribe witnesses. On numerous occasions during Senessie’s trial, the judge rejected Senessie’s testimony as unreliable. Yet despite the judge’s own findings against the witness’s credibility, the judge relied essentially exclusively on Senessie’s testimony to convict Taylor.

Under settled jurisprudence, the Trial Chamber does not have to reject the entirety of a witness’s testimony if it becomes apparent that the witness lied under oath. But, the Chamber may exercise its discretion to disregard the testimony. But because the same judge had previously found significant issues of reliability and credibility regarding the witness Senessi, the Appeals Chamber determined that the Trial Chamber should have used additional caution when considering Senessie’s testimony against Taylor. Due to this finding, the Appeals Chamber itself considered the evidence presented in Senessie’s testimony and the factual findings underlying the testimony, in order to determine whether it was “safe” to convict Taylor based on the testimony.

In reviewing the factual underpinnings, the Appeals Chamber found several problems. First, a conviction cannot be had from circumstantial evidence, if the evidence allows for any other reasonable explanation. The Appeals Chamber found that much of the factual evidence was circumstantial, and could have alternative, reasonable and lawful explanations. There was no direct evidence suggesting that Taylor made certain payments and obtained certain letters in order to contact witnesses and convince them to recant their testimonies. Each evidence piece presented also could be explained by a rational, lawful purpose.

The Appeals Chamber mentioned several pieces of additional evidence considered by the Trial Chamber, but found that none of this evidence sufficiently corroborated the accounting of the facts of the case testified to by Senessie. Additionally, following the approaches in the ICTY and ICTR tribunals, the Appeals Chamber rejected the Trial Chamber’s approach of taking judicial notice of facts relating to the mental state, conduct and acts of the accused, adjudicated in a different trial, as a means of corroborating single-witness testimony. The Appeals Chamber thus found that the Trial Chamber erred by taking judicial notice of corroborating facts going to Taylor’s mental state, conduct, and acts.

The Appeals Chamber found that the conduct of the Trial Chamber failed to exercise the caution necessary when considering the testimony of a witness who has been proven to lie on previous occasions in relation to incidents in the current case. In addition, in its own review of the testimony and facts, the Chamber found that the facts did not necessarily corroborate the version of events relayed by Senessie, and that many of the facts and instances could have reasonable explanations. For these reasons, the Appeals Chamber found that no reasonable trier of fact could have placed decisive weight on Senessie’s testimony so as to allow for Taylor’s conviction. The Appeals Chamber reversed the Trial Court’s judgment, and entered a judgment of acquittal for the appellant.

One justice, Justice Winter, dissented from the majority’s findings and subsequent judgment reversing the Trial Chamber and acquitting Taylor.

To access the full Decision, click here.

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09 October 2013 – DECISION REVIEW (Part 2)

Court/Tribunal: Special Tribunal for Sierra Leone

Decision Title: Judgment

Chamber: Appeals Chamber

Case Name: Prosecutor against Charles Ghankay Taylor

Date: 26 September 2013

**Note: Due to the length of the decision, it is reviewed in two parts**

_________

(continued from Part 1)

Burden of Proof: The defense argued that, in regard to some of the charges, the Trial Chamber impermissibly reversed the burden of proof, in violation of the principle that presumes a defendant’s innocence until proven otherwise. The defense pointed to several specific instances where it argued that the Trial Chamber held findings of guilt to a standard below “beyond a reasonable doubt,” which then forced the defense to rebut this low threshold of guilt.

The Appeals Chamber rejected this argument. It found that the Trial Chamber properly included the right standard and rules pertaining to burden of proof in its decision. The Appeals Chamber rejected the notion that this language in the lower court’s judgment was “boilerplate,” and instead held that it was a sound statement and reflection of the standard that the Trial Court actually applied throughout the rest of its decision. Further, the Appeals Chamber found that the specific instances referenced by the defense did not indicate instances of burden reversal. Rather, the record reflected that the Trial Chamber considered the evidence, and displayed how the Trial Chamber weighed the evidence in light of the allegations and the other evidence. Further, the Trial Chamber is not required to make findings of “beyond a reasonable doubt” on facts that are not essential to a finding of guilt. Noting that it is within the Trial Chamber’s discretion to weigh evidence and, in light of all the other evidence before it, credit such evidence as it deems appropriate, the Appeals Chamber did not find any error in the Trial Chamber’s assessment or crediting of the evidence before it.

Lack of Reasoned Opinion: The defense argued that the Trial Chamber erred in law because it failed to provide a reasoned opinion that adequately explained its reasons for convicting the defendant. The Appeals Chamber rejected this argument, noting that the Trial Chamber’s judgment was quite thorough, detailing how it assessed the facts of the case and the weight of the evidence and testimony against the defendant. Since the defendant, in making its allegation, did not point to specific instances, issues or arguments that it contended the Trial Court erroneously omitted, the Appeals Chamber found no error.

Factual Findings: The defense brought up a number of exceptions to factual findings made by the Trial Chamber, particularly in regard to the makeup, mission and purpose of the rebel groups with which the defendant was associated. The defense also took exception to factual findings regarding the actions of these groups – particularly findings that these groups specifically terrorized civilian populations through sexual violence, physical assault, murder, property destruction, and eviction. The Appeals Chamber however affirmed the Trial Chamber’s findings, and affirmed the lower court’s assessment that these findings demonstrated a deliberate and patterned behavior of terrorism and intimidation on behalf of the terror groups, and that these behaviors were in furtherance of the terror groups’ political and military goals.

Individual Criminal Liability: The defense argued that the Trial Chamber erred in its finding of individual criminal liability for the defendant in four ways: that it erred as a matter of law in its articulation and application of the actus reus requirements for aiding and abetting liability, that it erred in its articulation and application of the mens rea requirements for aiding and abetting liability, that it erred as a matter of law in holding that that “special direction” was not an element of actus reus liability, and that it erred as a matter of law in its articulation and application for planning crimes.

The Appeals Chamber found that the act of aiding and abetting is completed based upon its effect on – or the level of assistance it gives – to the commission of a crime, rather than the particular mode in which that assistance to the crime is rendered. Thus, contrary to the defendant’s contentions, it was not necessary for the Trial Chamber to find that the defendant gave physical assistance to the specific person who committed each enumerated crime. As in the defendant’s case, substantial encouragement, approval for, or moral support given by an individual, that substantially aids in or facilitates the crime, is enough to establish aiding and abetting liability. Such support will establish personal culpability of the individual for the crimes actually committed.

The Appeals Chamber further found that in the Statute governing this tribunal and the laws under which it operates, there is nothing that indicates that “specific direction” is an element of actus reus of aiding and abetting liability, the ICTY decision in Perisic notwithstanding. Significantly, upon its own review of post-World War II international jurisprudence on “specific direction,” the Chamber found no support in international law for the proposition that “specific direction” must be part of aiding and abetting liability; as such, it rejected the finding in Perisic as incorrect for the standard under international law, and declined to follow, instead limiting the precedent in Perisic as articulating the standard under the particular jurisprudence of the ICTY

In regards to mens rea, the Appeals Chamber held that international criminal law establishes liability for an individual’s knowing participation in crime. That is, the individual acts knowing the consequences of his actions or conduct. This knowing participation in the commission of a crime is sufficient to establish individual criminal responsibility for the crimes committed. Further, knowledge of the “likely effects” of one’s assistance in certain criminal conduct is enough to establish culpability under aiding and abetting. Thus the Appeals Chamber found that culpability was correctly assigned to the defendant when it was shown that he knew that his conduct would assist in the commission of crimes. It is not required to show that the defendant knew his conduct would have a “substantial” effect on the commission of the crime, since this is a question of both law and fact, to be decided by the trier of fact.

Finally, the Appeals Chamber rejected the defense’s submission that the Trial Chamber was required to have found that the defendant planned the commission of concrete crimes. Similar to its disposition of the “specific direction” question, the Appeals Chamber found decisions from the ICTY that suggest a “concrete crime” requirement as not dispositive. Rather, the Appeals Chamber affirmed the lower court’s articulation of the law, in which it said that a person engages in planning by designing an act or omission that had a substantial effect on the commission of the actual crime. The Chamber looks to whether, essentially, the defendant gave a substantial contribution to the commission of the crime.

Based upon its affirmance of the legal standards articulated above, the Appeals Chamber affirmed that the factual findings and application of the facts to the law made by the Trial Chamber. As such, it affirmed the Trial Chamber’s conclusion that the defendant’s acts and omissions had a substantial effect on the commission of the actual crimes, thus establishing criminal liability under aiding and abetting. Likewise, in reviewing and affirming the facts found by the Trial Chamber, the Appeals Chamber also affirmed the lower court’s finding that the defendant had the requisite mens rea to establish criminal aiding and abetting liability.

Based upon its review and affirmance of the facts as found by the Trial Chamber, the Appeals Chamber affirmed the lower court’s determination that the defendant had criminal liability for participating in the planning of an act or omission that gave substantial effect to the commission of crimes. Likewise, the Appeals Chamber found that the facts as found by the lower court also established the requisite mens rea for planning liability, and mostly affirmed, although stated that liability should be modified to exclude crimes allegedly committed in the Kono District in Sierra Leone.

Fair Trial Rights: The defense alleged a number of “irregularities” in the conduct of the trial at the Trial Chamber. On review, the Appeals Chamber took note of the fact that defense had entirely failed to raise these claims during the trial. Because this deprives the Appeals Chamber the opportunity to review the lower court’s findings on these claims, such a failure can act as a complete bar to consideration of the claims on appeal. In the interests of justice, however, the Appeals Chamber considered the merits. Upon review of the claims, the Appeals Chamber found that the defense had failed to identify any Statutory or procedural rules that were violated in the conduct of the trial, nor did he succeed in showing how the alleged irregularities interfered in or otherwise prejudiced his fair trial rights. As such, the Appeals Chamber rejected defendant’s submissions on these points.

Sentencing: Upon conviction, the Trial Chamber sentenced the defendant to fifty (50) years in prison. Both the defense and the prosecution challenged the sentence. The defense argued that the sentence was “totally unreasonable,” while the prosecution argued that the sentence failed to adequately reflect the totality and severity of the defendant’s conduct. It argued that the Trial Court’s determination that aiding and abetting liability warrants a lesser sentence was wrong.

The Appeals Chamber rejected the defense’s contentions. After reviewing the Statute, the Rules of the Tribunal, and customary international law, however, the Appeals Chamber affirmed the prosecution’s contention that the Trial Chamber erred in law when it determined that aiding and abetting liability per se warrants a lesser sentence. The Appeals Chamber found that the Trial Chamber properly considered both alleged aggravating and mitigating factors in its sentencing, and its decisions on how these factors played into the sentence were not in error. In light of the totality of the circumstances and the totality of the Trial Chamber’s considerations when sentencing defendant, the Appeals Chamber found that the sentence imposed by the Trial Chamber was fair and reasonable.

The judgment of the Trial Chamber, with some small modifications, was affirmed by the Appeals Chamber.

Justice Shireen Avis Fisher wrote a concurring opinion on aiding and abetting liability.

To access the full Decision, click here.

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09 October 2013 – DECISION REVIEW (Part 1)

Court/Tribunal: Special Tribunal for Sierra Leone 

Decision Title: Judgment

Chamber: Appeals Chamber

Case Name: Prosecutor against Charles Ghankay Taylor 

Date: 26 September 2013

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Decision Background: This judgment comes from review by the Appeals Chamber of the Trial Court’s decision in the Charles Taylor case. Charles Taylor is a Liberian who, in 1984, formed an armed opposition group, the NPFL, in opposition to the then-president of Liberia. In 1989, he lead the NPFL into Liberia, where he remained throughout the Liberian Civil War until 1989. In August 1997, he was elected President of Liberia. In 2003, an indictment against Taylor was issued by SCSL, along with an arrest warrant. In June of 2003, the indictment and arrest warrant were unsealed; in August 2003, Taylor stepped down from the presidency of Liberia.

The indictment charged Taylor with eleven (11) counts for various forms of crimes against humanity. One other count charged Taylor with serious violations of international humanitarian law, punishable under Article 4 of the Statute, for the conscription of children into armed forces or using them to activity participate in armed hostilities. According to the indictment, the crimes underlying the charges occurred between November 1996 and January 2002 in six locations in Sierra Leone, a country bordering Liberia. The indictment charged Taylor with individual criminal liability for the crimes alleged, stating that by his acts or omissions, Taylor aided and abetted, planned, ordered, instigated, or participated in the crimes committed in Sierra Leone.

Taylor plead not guilty. After trial, the Trial Chamber found Taylor guilty of the charged crimes, finding that he aided and abetted and planned the charged crimes, and thus bore individual criminal liability for their commission. The Trial Chamber sentenced Taylor to one term of fifty (50) years in prison.

Decision Review: There are three grounds upon which a defendant may appeal his conviction: a procedural error, and error of law that invalidates the original decision, or an error of fact which has caused a miscarriage of justice.

The Appeals Chamber only reverses claimed errors of law that do not affect the outcome of the original decision in rare circumstances; if a defendant bases the claim on a perceived lack of reasoned opinion from the lower court, the defendant must identify the specific issues or facts that it alleges the lower court neglected to address.

Because a trial court is in the best position to weigh the factual evidence presented, the Appeals Chamber will only reverse the trial court’s factual finding where it determines that no reasonable court could have construed the facts in the manner so construed by the lower court. The error must be wholly erroneous. Additionally, the defendant must state with precision how the error of fact has occasioned a miscarriage of justice warranting reversal by the court. In order to make this showing, the defendant must prove the factual error was critical to the judgment against the defendant.

Alleged errors of procedure will only be reversed where the defendant can show that the errors lead to a miscarriage of justice, affecting the fairness of the trial. Inconsequential errors that do not prejudice the party will not affect the fairness of the trial, and will therefore not be reversed by the court.

Generally, even if the Appeals Chamber disagrees with the lower court’s decision, the decision will stand unless so unreasonable that the Appeals Chamber determines that the Trial Chamber failed to exercise its discretion judiciously. Likewise, the Appeals Chamber will not revise a sentence given to a defendant unless the Trial Chamber has committed a “discernable error” in sentencing, or has failed to follow the law in sentencing.

Findings

Indictment: The Prosecution had challenged the Trial Chamber’s failure to convict Mr. Taylor for crimes committed in several locations, due to the fact that the Trial Chamber found that they were outside the scope of the indictment. The issue was the breadth of the language in the indictment: with regard to certain crimes, the lower court had found that the Prosecution had failed to indicate with enough specificity the locations of these alleged crimes, and therefore declined to include them as part of the indictable offenses.

The Appeals Chamber affirmed the Trial Chamber’s ruling. Relying on two previous cases, the Chamber found that more non-specific descriptions of location may be adequate in situations where the sheer scale of the alleged crimes committed is very large and extensive. Even in these situations, however, broad pleadings may still be defective. Whether or not this is the case depends on the particulars of the case, and a consideration of the competing rights and interests involved. The Appeals Chamber was satisfied that the Trial Chamber properly weighed the competing interests involved. Nor did the Trial Court err in finding that the pleadings for these crimes were defective, particularly in light of the fact that the Prosecution never alleged that it could not, as a matter of practical reality, have plead its case with more specificity.

Finally, the Appeals Chamber declined to find that, assuming defective pleadings, the defects were cured through other means of notice to the defendant regarding the location of the alleged crimes. The Appeals Chamber noted that the Prosecution has a duty to state with as much specificity as possible the information in the indictment, and cannot rely defective pleadings in the assumption that the defects will later be corrected.

Evaluation of the Evidence: The defense had challenged the legitimacy and legality of the Trial Chamber’s heavy reliance on uncorroborated hearsay evidence in its rulings against Mr. Taylor. The defense alleged that Mr. Taylor could not, as matter of law, be convicted upon evidence gained from hearsay statements and nothing more.

The Appeals Chamber found no merit in this argument. The Appeals Chamber found that, unlike in many national systems, in the legal system of the international criminal tribunals, the common law rules requiring corroborating evidence or testimony do not apply. Here, corroborating evidence to hearsay statements is only preferred, not require. In international criminal law, a charge may be proven on the testimony of one witness.  The crux of whether one witness’s testimony is enough is the credibility of that witness, which the Trial Court evaluates. As long as the Trial Chamber otherwise adequately considers all of the evidence in the record, it may rely upon hearsay testimony of only one witness.

In its submission on this point, the defense pointed to the ICTY’s decision in Prlic, in which it stated that rights of the defense would be violated if a conviction is based on evidence presented from a witness that the defense does not have the opportunity to examine. The defense argued that without corroboration, hearsay testimony relaying information from an unexamined declarant violates the principle laid out in Prlic.

The Appeals Chamber rejected Prlic as holding that uncorroborated hearsay evidence can never be the basis for a conviction. The Chamber noted that the decision was heavily informed by cases from the European Court of Human Rights regarding fair trial rights, as are fair trial rights in the international courts generally. ECHR norms generally inform the norms used in the international criminal tribunals Noting this, the Chamber found it significant that despite ECHR statements affirming the right to examine witnesses as part of fair trial rights, the ECHR has also, on at least one occasion, specifically rejected the argument put forth by the defendant that uncorroborated hearsay testimony per se violates an accused’s rights to a fair trial. In this case, the Chamber found that the defense did not show how the uncorroborated evidence prejudiced the defendant or denied him his fair trial rights, other than saying that uncorroborated hearsay evidence by definition violated the defendant’s rights.

Further, the Appeals Chamber found that the record reflected that the Trial Chamber took due caution when assessing the reliability of hearsay statements, as well as the reliability of the sources of the hearsay evidence, because the Chamber explicitly laid out the considerations it used when making the assessment. Therefore, the Appeals Chamber found that the Trial Chamber was duly cautious in its approach to hearsay statements, such that its reliance on the hearsay evidence for some of the crimes charged was not in error.

Assessment of Witness Credibility: The defense argued that the Trial Court committed error when it assessed the credibility of 22 witnesses. Specifically, the defense contended that the Trial Court’s assessment of these witnesses, whom it “arbitrarily” considered “significant,” was improper because 20 of the 22 witnesses were Prosecution witnesses. The defense argued that this prejudiced the defendant because these general credibility assessments were “dispositive.”

The Appeals Chamber did not find error with the Trial Court’s assessment of the witnesses. Noting that assessing witness credibility is within the Trial Chamber’s discretion, the Appeals Chamber found that the Trial Chamber explained in sufficient detail its approach to assessing witness credibility, including the factors it considered when making the assessment. Additionally, the Appeals Chamber found that the assessment was laid out in a particularly detailed fashion with respect to the 22 witnesses, and adequately explained why the Trial Chamber considered these witnesses significant. As such, its emphasis on these witnesses was not arbitrary. As to the discrepancy between the number of prosecution and defense witnesses selected as significant, the Appeals Chamber found that this was the result of there being more prosecution witnesses, and the fact that the defense challenged the credibility of witnesses more than did the prosecution.

In regards to other contentions made by the defense regarding the assessment of credibility of certain witnesses – namely, accomplice witnesses and witnesses who had received compensation – the Appeals Chamber found that the Trial Chamber took due, careful, and detailed note of these special circumstances when evaluating witnesses credibility. As such, the Trial Chamber did not err in its findings regarding the credibility of these witnesses.

Inferences: The defense argued that the Trial Chamber erred by relying in its decisions on certain inferences derived from analysis of the evidence, when the evidence was sufficient to support other inferences as well. Stated differently, the defense contended that the Trial Chamber erred because it found the inferences supporting the conviction of the defendant to be the only possible inferences that could arise from the presented evidence. The defense argued that the evidence could just as legitimately support other conclusions and inferences that work against finding the defendant liable.

The Appeals Chamber noted that the standard of law at issue is the one that states that a finding of guilt based upon circumstantial evidence can only lie if the guilt of the defendant is the only reasonable inference that can be drawn from the evidence. It found no error, however, because it found that the convictions of the defendant were not solely based on circumstantial evidence. Where circumstantial evidence is not dispositive of a defendant’s guilt, the Trial Court need not find that the only inference from that evidence is one of defendant’s guilt.

To access the full decision, click here.

**Note: Due to the length of the decision, it has been review in two parts**

 

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26 September 2013 – NEWS ABOUT THE COURTS

SCSL issues Taylor appeals judgment today: Former Liberian President Charles Taylor’s appeals judgment will be issued by the SCSL on Thursday, 26 September 2013. Taylor was sentenced last year to 50 years imprisonment for aiding and abetting crimes against humanity during Sierra Leone’s civil war. Taylor filed the appeal in January 2013, and has consistently denied criminal involvement. (VOA).      

Bashir’s controversial U.S. visit cancelled: On Wednesday, 25 September 2013, ICC indictee Omar al-Bashir cancelled a scheduled appearance at the U.N. General Assembly in New York. The Sudanese President last week applied for a U.S. visa, triggering a debate over the U.S.’s obligation, as a non-party to the Rome Statute, to arrest Bashir upon entry into the country. A U.N. spokesman announced Ali Karti, Sudan’s Foreign Minister, will instead speak to world leaders on Friday. (Naharnet).  

Sri Lanka threatened with U.N. inquiry over human rights violations: U.N. High Commissioner for Human Rights Navi Pillay has threatened Sri Lanka with an international review over alleged human rights violations during its 26 year civil war. Pillay claimed the Sri Lankan government fell short from “independently or credibly investigat[ing] the allegations” and failed to properly assess alleged “harassment of journalists, lawyers and human rights defenders.” The Commissioner warned Sri Lanka to make progress within the next six months or risk a U.N. inquiry. (New York Times).

ICC denies Kenyatta postponement: Kenyan President Uhuru Kenyatta’s motion to delay his 12 November 2013, trial has been denied by the ICC. The Court found Kenyatta had already been afforded sufficient time to prepare a defense against charges of crimes against humanity. Currently pending in the ICC is a request by Kenyatta to be excused from all proceedings in The Hague except for the opening and closing arguments. (Google).

Status of Ruto’s excusal from ICC to handle Kenyan mall attack: Deputy President William Ruto will be expected back in The Hague at the expiration of his one-week leave or after the Appeals Chamber renders a decision on his request for a two-week adjournment, “whichever comes earlier.” On Monday, 23 September 2013, ICC Trial Chamber V excused Ruto from proceedings for the week to attend to his executive duties in Kenya after a terrorist attack on a mall in Nairobi. Co-accused Joshua arap Sang has also called for continued postponement in light of the tragedy that caused 69 deaths. (News Afrique Informations).    

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28 August 2013 – NEWS ABOUT THE COURTS

Second chemical weapons investigation in Syria delayed: On Tuesday, 27 August 2013, the U.N. announced its decision to delay by one day the second investigation of chemical weapons use in Syria. Citing security concerns, the decision comes a day after snipers attacked the U.N. chemical weapons team’s first investigation near Damascus. At a press conference on Tuesday, Walid al-Moallem, the Syrian Foreign Minister, stated the delay was the cause of “disputes between rebel groups.”

ICC judges vote against holding Ruto trial in Kenya: The ICC issued a decision on Monday, 26 August 2013, denying Kenyan Deputy President William Ruto and radio journalist Joshua arap Sang’s motion to relocate the trial to either Nairobi or Arusha. Nine of the fourteen judges, one short of the two-third majority vote needed under the Rome Statute to permit ICC proceedings outside The Hague, supported moving the case in order to be closer to victims, witnesses and crime sites. The dissenters, however, argued holding the trial in Kenya may further witness intimidation, discourage victim participation, spark “anti-ICC demonstrations,” and undermine Ruto’s authority as Deputy President.

Survey suggests declining support in ICC Kenya trials: According to a survey released last month by the market research company, Ipsos Synovate, public support for the ICC trials of Kenyan President Uhuru Kenyatta and Deputy President William Ruto has fallen by nearly 30% since October 2010. Experts have attributed the decline in support to the March 2013 election of Kenyatta and Ruto, as well as the ICC prosecutor’s withdrawal of charges against former Head of Public Service Francis Muthaura. Ruto’s trial, along with co-defendant radio journalist Joshua arap Sang, is expected to begin on 10 September 2013. Kenyatta’s trial is scheduled for 12 November 2013.

Bodyguard testifies at ICC that Bemba lacked military control over soldiers: A personal security guard of Jean-Pierre Bemba, former commander-in-chief of the Movement for the Liberation of Congo, testified at the ICC on behalf of the defense Monday, 26 August 2013. The protected witness claimed Bemba had no control over troops accused of raping and murdering civilians during the 2002 and 2003 conflict. Instead, the witness alleged Bemba was responsible primarily for political affairs and the chief of staff commanded and disciplined the troops. Previous prosecution witnesses have testified that Bemba had knowledge of the crimes being committed and “was in direct contact with his forces.”

Taylor appeals judgment expected next month at the SCSL: The SCSL announced this week that the appeals judgment for former President of Liberia, Charles Taylor, will be made public 26 September 2013. Taylor was sentenced last year to 50 years imprisonment for aiding and abetting crimes against humanity during Sierra Leone’s civil war. Both Taylor and the prosecution appealed. Taylor argued the Court erred in both fact and law in rendering its decision. The prosecution claimed the SCSL failed by not also finding the former President guilty of ordering the commission of crimes.

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