Archive for category Torture
Lawmakers urge government to act quickly against STL summons of local editors: On Wednesday, 30 April 2014, Lebanese lawmakers urged the “government to act quickly and efficiently to protect” freedom of the press. The call from the lawmakers came one week after the Special Tribunal for Lebanon summoned two news editors accused of disclosing the alleged names of witnesses on various media outlets. Ibrahim Amine and Karma Khayyat face charges of contempt of court and disrupting justice. (The Daily Star).
UK calls for swift probe into Syria chemical weapons use: British Foreign Secretary William Hague has called upon the Organisation for the Prohibition of Chemical Weapons (OPCW) to conduct a timely investigation into chemical weapons attack by the Syrian government. In the last two weeks, eight separate attacks using chlorine and ammonia have been carried out against civilians killing several and leaving hundreds seriously injured. OPCW has reported that the Syrian government accepts the investigation and will provide security measures. (The Telegraph).
Prosecution seeks capital punishment for Jamaat-e-Islami leader: ICT of Bangladesh: In closing arguments at the International Crimes Tribunal-2 today, 30 April 2014, Prosecutor Tureen Afroz asked for the death penalty in the case against Jamaat-e-Islami leader Mir Quasem Ali. Quasem is accused of torture and murder at an Al-Badr camp during the country’s 1971 Liberation War. Prosecutor Tureen argued the evidence proved beyond a reasonable doubt that Quasem controlled the Al-Badr torture camp and was present during the commission of the alleged crimes. (The Daily Star).
Posted by carolinguentert in AU, CAR, Chad, Crimes against Humanity, Decision Review, Fair trial/Accused's rights, Gaddafi, Genocide, ICC, ICTR, ICTY, Investigations, Kenya, Libya, News about the Courts, Nigeria, Other domestic courts, Rwanda, Torture, Truth Commissions, Victims, War Crimes, Witnesses on April 15, 2014
ICTY rejects Mladic’s Rule 98bis application and find case to answer: On Tuesday, 15 April 2014, Trial Chamber I of the ICTY rejected Ratko Mladic’s 98 bis application for acquittal, a rule under the Tribunal’s Rules of Procedure and Evidence that allows the Tribunal to acquit a defendant after an oral hearing if there exists no evidence to support a conviction. Upon dismissing the application, the Chamber held that even if Mladic has a defense to all of the counts against him, there is evidence to support all of the charges against him. (ICTY).
Libyan trial of Ex-Gaddafi Officials postponed amid concerns of a fair trial: On Monday, 14 April 2014, the Libyan government opened and subsequently adjourned the trial against Muammar Gaddafi’s sons and his former officials, due to incomplete investigations; particularly the investigation of evidence against Saadi Gaddafi remains incomplete. The case will proceed on 27 April 2014, in order to allow the investigators more preparation time and to set up video links for the sons and officials who were not brought to the court for security reasons. Human Rights Watch and Amnesty International continue to express that the defendants’ right to a fair trial have been violated. The groups are concerned that not all of the defendants have had access to lawyers; that the defense teams have been restricted in their ability to assess evidence and case files; that interrogation strategies and detention conditions have been unfair; that Libya recently amended its Code of Criminal procedure to allow trials through video links, meaning the defendants, all of whom are being held in prisons and one of whom is being held in a secret location by a militia, will not physically appear at their trials; and that the Libyan justice system is generally unstable, in part because previous attacks against lawyers and judges in Libya have resulted in the suspension of courts throughout parts of Libya. The defense lawyers raised concerns about insufficient access to the case files in court. The ICC is still deliberating on the admissibility of the cases against Saif Gaddafi and Abdullah Al-Senussi, and a decision from the Appeals Chamber on whether the Libyan government is able to try them is still outstanding. (Reuters) (For more information on this topic, please click here, here, and here).
Ruto trial hears from satellite imagery expert and breaks for Easter: Lars Bromley, a UN specialist in satellite imagery, testified before the ICC in the case against Kenyan Deputy President William Ruto and Kenyan journalist Joshua Arap Sang, explaining that at least 506 buildings were deliberately burned down in the Rift Valley following the election, and that 190 more buildings were “possibly burnt.” He based his analysis on satellite images, the deliberate nature of the burnings being evident from burn patters. The defense disputed the expert’s testimony. The trial is currently on break for the Easter holiday, after which the prosecution will likely call a witness who was instrumental in the confirmation of charges against Ruto. (Institute for War & Peace Reporting) (For additional information on this topic, please click here).
Habre defense team says trial is politically motivated: The defense team of former Chadian dictator Hissene Habre claims that the reasons behind his prosecution in Senegal were political and instigated by a Chadian spy agency. Habre, who is charged with having committed war crimes, crimes against humanity, and torture while he was in charge of Chad between 1982 and 1990, will stand trial in Senegal in 2015, where he was in exile for twelve years before being arrested last July. (Legalbrief Today).
ICTR Prosecutor asks for increased efforts to prosecute all suspects of 1994 crimes in Rwanda: In a commemoration address, Hassan Jallow, the chief prosecutor of the ICTR, asked for an increased effort to find and prosecute perpetrators of the genocide against Tutsis in 1994 who have not been tried, and that countries in which suspects of these crimes are located to transfer these alleged perpetrators to Rwanda in order to stand trial. He specifically mentioned Félicien Kabuga, Protais Mpiranya, and Augustin Bizimana, all of whom are fugitives and suspected of having played significant roles in the genocide. (AllAfrica).
UN High Commissioner for HR expresses concerns for amnesties in Nepal: Following the Nepalese government’s drafting of a law that would create a Truth and Reconciliation Commission and a Commission on Disappeared Persons, the UN High Commissioner for Human Rights Navi Pillay warned that this legislation would allow these two panels to recommend amnesties for human rights abuses that occurred in Nepal. The government denies the existence of amnesty possibilities in the legislation, saying that amnesty would only occur with the victims’ consent. (Reuters).
Amnesty claims CAH and war crimes escalating in Nigeria: Amnesty International issued a report stating that violence has increased in northeastern Nigeria due to a higher number of attacks by Boko Haram and responses by Nigerian security forces, which has resulted in the death of at least 1,500 people since the beginning of the year. According the group, these events may be war crimes and crimes against humanity, and the group urged other countries, the African Union, and the UN to launch investigations into these acts. Amnesty International has documented attacks carried out by both Boko Haram and Nigerian security forces that occurred in January, February, and March 2014. (Amnesty International).
UN panel lists individuals alleged to be accountable for crimes: On Tuesday, 18 March 2014, the head of the UN panel tasked with investigating human rights abuses committed in Syria said that the panel has identified individuals who were involved in the taking of hostages, executions, and torture in Syria and placed them on a “perpetrators list”. This list includes the heads of intelligence branches and detention facilities in which torture was carried out; military commanders who targeted civilians; airport officials under whose jurisdiction bomb attacks were planned and completed, and leaders of groups who targeted civilians. The panel was established by the UN HRC in order to investigate human rights abuses in Syria since March 2011, and to date, the panel has conducted over 2,700 interviews. (Fox News).
China opposes UN HR Council Resolution on crimes in N. Korea: China rejected South Korea’s request for China to support a UN Resolution to refer North Korean officials who have allegedly committed human rights abuses within North Korea to the ICC. The U.S., EU, and Japan are in favor of bringing the issue before the UN Security Council in order to bring about a referral to the ICC; however, China may exercise its veto power. Following the UN Commission of Inquiry’s recent conclusion that high-level officials in North Korea have committed crimes against humanity, the UN HRC is expected to decide on a resolution concerning North Korea’s human rights record. (Yonhap News Agency).
Malta approves extradition of Serbian CAH suspect to Croatia: On Thursday, 13 March 2014, a Maltese court ruled that Eror Gojko—a Serbian construction worker who is charged with committing crimes against humanity, kidnapping, torture, and unlawful deportation to concentration camps between 1991 and 1993 in the former Yugoslavia—will be extradited to Croatia for trial. He consented to the extradition, and the Maltese court did not address his charges. The charges against him are related to the disappearance of at least 17 people. (Reuters).
Civil Society petition questions ICTR acquittals: 15 civil society groups have signed a petition addressed to the president of the UN Security Council, questioning the ICTR Appeals Chamber’s decision to acquit and reduce the sentences of political and military officials who had been convicted by the Trial Chamber for crimes committed during the 1994 Rwandan genocide. The petition is specifically against Judge Theodore Meron, the presiding Judge of the ICTR Appeals Chamber. One of the organizations, Rwanda Civil Society Platform, expressed its disagreement with the acquittal of Justin Mugenzi, Prosper Mugiraneza, Protais Zigiranyirazo, Augustin Ndindiliyimana, and François-Xavier Nzuwonemeye, as well as the reduction of the sentences of Anatole Nsengiyumva and Aloys Ntabakuze. (allAfrica).
ICC rejects Gbagbo’s appeal against pretrial detention: On Tuesday, 29 October 2013 the ICC announced that former Ivory Coast President Laurent Gbagbo must remain in custody until he is tried, rejecting his appeal against his continuous pretrial detention in The Hague. Gbagbo has been in custody for almost two years, and his indictment has not been confirmed; it is still unclear whether he will stand trial. Gbagbo is charged with committing crimes against civilians following the 2010 Ivory Coast elections. (The Associated Press).
U.S. plans to aid Uganda in its search for Kony: The U.S. is reportedly increasing efforts to catch Joseph Kony by possibly stationing Osprey aircraft in Uganda. Such aircraft fly like planes but are capable of landing like helicopters, which would significantly aid African and U.S. troops in searching for Kony. This would also double the number if U.S. troops stationed in Uganda, which is leading the search for Kony. Kony, the commander-in-chief of the rebel group the Lord’s Resistance Army (LRA), and three other LRA leaders have been indicted by the ICC for crimes against humanity and war crimes. The LRA fought the Ugandan government for 20 years, and is allegedly responsible for killing and kidnapping civilians from villages, many of whom were children. (Voice of America).
Chowdhury appeals death sentence handed down by ICT: On Tuesday, 29 October 2013, Salauddin Quader Chowdhury’s defense lawyer filed an appeal with the Supreme Court against the death penalty awarded by with the International Crimes Tribunal (ICT), which had sentenced Chowdhury to death by hanging on 1 October 2013 for the torture, murder, and genocide he committed during the 1971 Bangladesh Liberation War. Chowdhury was a Standing Committee member of the Bangladesh Nationalist Party. (Dhaka Tribune).
STL holds pre-trial conference in Hariri case: On Tuesday, 29 October 2013, the Trial Chamber of the Special Tribunal for Lebanon (STL) is holding a pre-trial conference concerning the case against four Lebanese individuals indicted for assassinating former Lebanese Prime Minister Rafiq Hariri and killing 21 others in a 2005 terrorist attack in Beirut. The conference is meant to help shift the case from the pre-trial to the trial stage, and will be open to the public. This is the first time the Trial Chamber has held such a meeting. The case was transferred from the Pre-Trial Chamber to the Trial Chamber, and the trial is set to begin on 13 January 2014. (Kuwait News Agency).
ICC reverses ruling excusing Ruto from attending his trial: The appeals chamber of the ICC ruled on Friday, 25 October 2013 that Kenyan Deputy President William Ruto can only be excused from attending his trial under “exceptional circumstances”, reversing the earlier ruling which had excused Ruto from attending much of his trial. The appeals chamber noted that Ruto may only be excused from attending when judges have considered all other alternatives and it is “strictly necessary”, since Ruto is “not merely a passive observer of the trial but an active participant”. Decisions on whether Ruto will be excused from certain parts of his trial will therefore be made on a case-by-case basis. (Sabahi).
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.
Court/Tribunal: Special Tribunal for Sierra Leone
Decision Title: Judgment
Chamber: Appeals Chamber
Case Name: Prosecutor against Charles Ghankay Taylor
Date: 26 September 2013
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.
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**
ICC arrest warrant for Kenyan journalist: On 2 October 2013, the ICC issued an arrest warrant for Kenyan journalist Walter Barasa. Barasa allegedly bribed, harassed and threatened prosecution witnesses in the ICC case against Kenyan President William Ruto. Barasa claims he was asked to aid witness interviews by ICC staff but never personally participated in “coerci[ve] or unorthodox means.” The journalist intends to defend himself against the charge of interfering with the legal process, which could give rise to 5 years incarceration if found guilty. (ABC News).
UN reports on prison violence in Libya: The UN issued a report on Tuesday, 1 October 2013, condemning the ongoing abuse and torture in Libya’s prisons. The report, which detailed 27 detention center deaths and countless testimonies of physical abuse by the armed brigades, urges an immediate response by the Libyan government to transfer inmates. UN High Commissioner for Human Rights Navi Pillay announced the “situation of detainees in Libya is alarming and while there has been some progress, there is an urgent need to renew efforts to prevent torture, investigate allegations of torture and prosecute those responsible.” (UN News Centre).
Costa Rica-Nicaragua border dispute back at ICJ: The ICJ has scheduled four days of hearings in mid-October to discuss the continuing border conflict between Costa Rica and Nicaragua. Costa Rica requested the meetings after Nicaragua military excavated two canals in Isla Portillos in violation of a 2011 ICJ precautionary measure. Costa Rican President Laura Chinchilla has called for Nicaraguan personnel unlawfully on the wetlands to leave. (Inside Costa Rica).
Ethiopia publicizes discontent with ICC: Ethiopia, a non signatory of the Rome Statute, has again accused the ICC of being politically bias and only targeting leaders of Africa. Ethiopian Ministry of Foreign Affairs spokesman Dina Mufti argued Africa countries should be prosecuting their own leaders, without ICC involvement, in observance of AU recommendations. At this time, 34 African states are parties to the Rome Statute. However, the Kenyan government recently voted to withdraw from membership due to increasing dissatisfaction with the permanent international court. (Sudan Tribune).
Posted by cdelaubenfels in Crimes against Humanity, DRC, Fair trial/Accused's rights, Fatuo Bensouda, Gaddafi, Human Rights Violations, ICC, Investigations, Kenya, News about the Courts, North Korea, Other domestic courts, Post-Election Violence, Torture, UN General Assembly, UN Security Council, Victims, War Crimes on August 28, 2013
Syria accused of crimes against humanity: On 27 August, the United Nations condemned the attacks on its weapon inspectors, who were investigating the possible use of chemical weapons. Secretary-General Ban Ki-moon stated that the international community cannot “cannot allow impunity in what appears to be a grave crime against humanity,” referencing the use of chemical weapons. The most recent chemical weapons attack occurred outside of Damascus and resulted in the death of over 300 civilians, including children.
UN investigators urge North Korea to allow a visit: On 27 August, the three member UN expert panel assigned to investigate human rights violations in North Korea urged the government to allow them to visit. However, the North Korean government called the probe slanderous and stated that they do not commit human rights abuses. The expert panel completed hearings in South Korea where they heard testimony from former occupants of North Korean prison camps on the human rights violations occurring within, including torture, forced abortions, and public executions. It is estimated that there are 80,000-120,000 prisoners in the labor camps. The UN panel is set to release their report on the abuses by the end of 2013.
Gaddafi seeks assistance from UK over trial concerns: On 27 August, the lawyers representing Saif al-Islam Gaddafi, the son of Colonel Muammar Gaddafi, urged the British government to do all within its powers to assure that Gaddafi is not tried in Libya. The lawyers contend that Gaddafi will only receive a show trial and will be subjected to the death sentence when convicted. Gaddafi is being charged with crimes relating to the events after protests began against his father in 2011, including torture and murder; he is also wanted by the ICC on charges of crimes against humanity. Gaddafi’s trial is set to begin in Tripoli on 19 September.
ICC President criticizes ICC Prosecution over Kenyan case: On 26 August, the ICC Presidency criticized the ICC Prosecution over their changed decision in the trial of Kenyan Deputy-President William Ruto and radio presenter Joshua arap Sang from preferring a Kenyan or Tanzania venue to preferring The Hague. The Presidency’s criticism of ICC Prosecutor Fatou Bensouda’s new position is centered around the abrupt change in view without explanation and not providing the defense time to respond to the new submission. Ruto and Song will be on trial before the ICC on charges of crimes against humanity in relation to the 2007-2008 post-election violence in Kenya.
UN to begin inquiry into Sri Lankan war crimes: On 25 August, the UN announced that its top rights official, Navi Pillay, would begin probes into Sri Lankan war crimes, after the Sri Lankan government recently dropped resistance to such inquiries. The probe will focus around the events of the final months of the separatist war in 2009, when some have estimated 40,000 civilians died. Until recently, the war zones of Northern Sri Lanka had been off limits to journalists, aid workers, and UN staff.
Former Congolese general arrested in France for crimes against humanity: On 23 August, the French government arrested former Congolese General Norbert Dabira for war crimes committed in the DRC. The arrest is in relation to the disappearance of approximately 350 refugees in 1999. Although the Congolese government claims that the refugees were massacred, human rights groups and relatives of the refugees claim the refugees were tortured and then executed. Under French law, Dabira will first be investigated by a panel of judges who will decide if there is enough evidence to take the case to trial.
46 former Auschwitz guards facing arrest: On 27 August, it was announced that 46 former Auschwitz prison guards were facing arrest in Germany. German courts are set to issue arrest warrants soon, they will be charged with aiding and abetting murder.
New CAR President led recent coup d’etat: On 19 August 2013 it was announced that the former rebel leader Michel Djotodia was sworn in as president of the CAR. President Djotodia is tasked with restoring security and stability to the impoverished nation. Fresh polls are set to take place within 18 months.
Alleged Srebrenica perpetrator extradited to Bosnia; will face war crimes trial: On 16 August 2013, a former Bosnian Serb solder accused of taking part in the Srebrenica massacre has been extradited to Bosnia from Israel. The prosecutor’s office in Bosnia claims that Aleksandar Cvetkovic took part in the execution of hundreds of Muslim men and boys on a farm near Srebrenica. During the extradition process on 15 August 2013 the Bosnian war crimes court rejected all of his appeals.
UN Hearings to air torture, murder at N. Korea camps: North Korean defectors and prison camp survivors will start testifying at U.N. hearings in Seoul and Tokyo to document alleged abuses. Activists and alleged victims hope that the evidence brought fourth during the hearings will serve as the first step in building a criminal case against N. Korean officials.
UN Mission in DRC cites release of child recruits: On 16 August 2013 it was reported that the UN peacekeeping mission in DRC has led to the release of 82 children from the Mayi Mayi Bakata Katanga armed group. About half the children have been reunited with their families while the remaining children are being looked after by interim care pending reunification. Since the mission started at the beginning of the year 163 children have been separated from Mayi Mayi Bakata Katanga by MONUSCO and child protection services.
UN Secretary General, ICC Prosecutor voice concern over CAR: On 9 August 2013 UN chief Ban Ki-moon announced that the UN Security Council may consider sanctions or set up a panel of experts to review the current situation in the CAR. An increase of rebel infighting has led to widespread abuses and government instability. (For more information on this topic please click, here.)
Alleged Nazi war criminal dies before trial: On 12 August 2013 it was reported that the 98-year-old Hungarian Nazi war crimes suspect, Laszlo Csatary, has died while awaiting trial. Csatary faced charges in Hungary and Slovakia for his alleged involvement in the deportation of 15,700 Jews to death camps.
HRW calls recent Iraq attacks crimes against humanity: On 11 August 2013 Human Rights Watch announced that the militants who carried out a series of bomb attacks in Iraq on 29 July 2013 committed crimes against humanity. Joe Stork, deputy Middle East director at Human Rights Watch stated that Al-Qaeda in Iraq has claimed responsibility for the attacks and is guilty of crimes against humanity.
Convicted Jamaat leader appeals ICT sentence: On 11 August 2013 the former Al-Badr commander moved the Appellate Division of the Supreme Court challenging the verdict which sentenced him to death. The International Crimes Tribunal-2 sentenced Ali Ahsan Mohammad Mujaheed to death after finding him guilty of five of the seven charges levelled against him including the murder of intellectuals, genocide, abduction, torture, and murder.