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Happy Birthday ICL Media and Review!

On the third anniversary of the ICL Media and Review launch, we would like to thank our readers, followers and contributors for supporting our mission of making the development of international criminal law easily accessible to the public.

Since our 2011 launch, we’ve grown, have been certified as a registered charity in the UK, and are in the process of developing a  highly functional and searchable webpage!  Thank you for your support, and we look forward to another great year of providing updates and analysis on events and developments in the international criminal law arena.

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BREAKING: Kenya votes for ICC withdrawal

Kenyan Parliament Votes to Withdraw from ICC : The Kenyan parliament has just approved a motion for the country to withdraw from the International Criminal Court, where Kenya’s sitting President Uhuru Kenyatta and Deputy President William Ruto face charges of committing crimes against humanity.  This does not change Kenya’s obligations under the Rome Statute for cases already underway (such as Ruto’s and Kenyatta’s), but does send a strong message of Kenya’s displeasure with the Court.

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24 July 2013 – NEWS ABOUT THE COURTS

ICC Prosecutor says attacks on peacekeepers may constitute war crimes:  ICC Prosecutor Fatou Bensouda has condemned the killing of seven joint UN-African Union peacekeeprs in Darfur earlier this month, stating once again that such attacks may constitute war crimes.   In a statement issued by the Office of the Prosecutor earlier this week, Bensouda stated that she “reminds all parties to the conflict that the [ICC] has jurisdiction in Darfur and that the intentional directing of attacks against peacekeeprs may constitute war crimes.”  She then called on Sudan’s government to conduct a “prompt and full investigation and to hold all those responsible in account.”  The attacks, which were some of the most serious against the mission since its 2008 deployment, were carried out by a large, unidentified group.

Senior UN official warns Syria about possible prosecutions in light of crimes against children : Leila Zerrougi, Special Representative of the Secretary-General for Children and Armed Conflict, warned Syrian officials and rebels alike about the risk of possible prosecution for atrocities committed against minors in the region.  After visiting Syria and surrounding countries hosting hundreds of thousands of refugees from the civil war, Zerrougui said she was overwhelmed by the suffering of children who witnessed the death of their siblings and teens who were forced to fight with opposition groups.  Approximately 7,000 children under the age of 15 have been killed in the two-year war, and half of the 1.7 million Syrian refugees are children.  “One day Syria will come to peace,” she said, “and those committing the atrocities will have to face – I hope – justice.”

ICC Prosecutor concludes investigative mission in Cote d’Ivoire: Fatou Bensouda concluded a mission in Cote d’Ivoire earlier this week.  The primary purpose of the fact-finding mission was to gather more information for the trial of former Ivorian President Laurent Gbagbo.    He faces crimes against humanity charges for his alleged role in the country’s 2010-2011 post-election conflict in which more than 3,000 people died.  Bensouda met with the ministers of Justice and Interior, as well as victims of the post-election violence and representatives of various human rights groups.  She has yet to release a statement indicating her findings during the mission.   

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18 July 2013 — DECISION REVIEW

Court/Tribunal: International Criminal Tribunal for the former Yugoslavia

Decision Title: Judgment

Chamber: Appeals Chamber

Case Name: The Prosecutor v. Radovan Karadzic

Date: 11 July 2013

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Decision Background: The Tribunal accused Radovan Karadzic of having participated in a Joint Criminal Enterprise (JCE) during the Bosnian War with high-ranking Bosnian Serb officials, the object of which was to permanently remove Bosnian Muslims and Bosnian Croats from certain municipalities in Bosnia. The charges accused Karadzic of having committed genocidal acts against Bosnian Muslims and Croats, incident to the JCE.

During the Trial phase, on 11 June 2012, the defendant moved for acquittal on all charges, arguing a lack of evidence to support a conviction on any of the counts. The Trial Chamber found in favor of the defendant, finding that no evidence presented by the Prosecution, taken at its highest value, could support a genocide conviction.

The Prosecution filed an appeal of the Judgment under Article 25, asking the Appeals Chamber to overturn, pursuant to Rule 98 bis, the Trial Chamber’s determination. The defendant responded, arguing that the Trial Chamber’s acquittal should be upheld.

The standard that the Court will use to determine a Rule 98 bis claim, is whether there is evidence presented against a defendant that, if accepted as credible and probative, could lead a reasonable trier of fact to determine the guilt of the accused beyond a reasonable doubt. The Chamber emphasizes this later in the decision, but a finding under this standard is not a finding as to the defendant’s actual culpability. The standard assumes, for sake of determining whether or not there is any basis for the trial continuing, that the evidence presented against a defendant is valid and could show a defendant’s guilt. The Prosecution, at the trial stage, still must actually prove the validity of that evidence, and the defense is always able to challenge the credibility of the evidence presented against him at trial.

The Appeals Chamber also noted that it applies a reasonableness standard when presented with claims of error of fact at the trial level, and will not lightly overturn factual findings made by the Trial Chamber.

Decision Review: The Prosecution appealed the Trial Chamber’s findings on four grounds. In the first ground, the Prosecution submitted that the Trial Chamber erred in law or fact regarding the act of genocide charged against the defendant. Namely, the Prosecution argued that the Trial Chamber erred in its findings regarding the killing, causing serious bodily or mental harm, and the creation of deliberate conditions of life calculated to destroy, which underlie the genocide charge.  Specifically, the Prosecution argued that the lower court erred when, in reaching its evidentiary conclusion, it instituted an “impact requirement” for finding acts of genocide – the acts must have been so substantial as to impact the existence of the Bosnian Muslim and Croat populations.

The Appeals Chamber affirmed in part and reversed in part the Trial Chamber’s findings under ground one. The Appeals Court first noted that the acts of genocide and the intent of genocide compose the crime of genocide, and are distinct elements that must be analyzed separately. The Appeals Chamber then determined that the lower court correctly maintained this distinction when reaching its decision regarding the acts of genocide, despite arguments to the contrary by the Prosecution. It found that the Trial Chamber, in fact, had found sufficient evidence to support a finding that acts killing as an act of genocide had occurred against Bosnian Muslim and Croat populations.  But, the Appeals Chamber found that the lower court had erred in fact in finding that no evidence showed the act of inflicting serious bodily and harm, when the record documented many instances of sexual violence and beatings against Bosnian Croat and Muslim populations.

Finally, the Appeals Chamber addressed the Prosecution’s contention regarding the lower court’s findings on “conditions of life” deliberately inflicted on target populations, life calculated to bring about their physical destruction, which constitutes an underlying genocidal act. Essentially, the Prosecution argued that, in light of the evidence present on the record, the lower court did not provide a reasoned opinion as to why that evidence was insufficient to support continued charges against the defendant. The Appeals Court disagreed, finding that the lower court had both laid out the legal standard in its opinion, and referenced that legal standard when discussing the evidence in question. It found the Prosecution’s objections that an explicit  discussion of the legal standard and reference to all available evidence, to be without merit. Yet it ultimately agreed with the Prosecution that the Trial Chamber erred in finding insufficient evidence, when there was enough evidence in the record, if assumed to be completely valid and credible, to support a finding of culpability.

The Appeals Chamber next addressed the Prosecution’s second and third grounds for appeal, regarding its contention that the Trial Chamber erred in fact in its findings on genocidal intent. The Trial Court had found that the evidence as-is, could not prove beyond a reasonable doubt that those engaging in the JCE had the intent to destroy the Bosnian Muslim and Croat populations in undertaking the aforementioned acts. A major issue regarding this count was how the Trial Court construed intent; specifically, whether the Trial Court erred in looking at the intent behind EACH culpable action, or if they should have looked at intent more broadly – the intent underlying the program of a series of culpable actions. The Appeals Court expressed the opinion that, generally, the Court  should look at the evidence taken together to infer mental state, rather than the mental state behind each individual act.

The Appeals Chamber found that the Trial Court used the proper method to assess intent. While the Trial Court initially looked at intent behind each action, its decision shows that it also looked at the evidence as a whole, to determine whether the evidence taken together could prove genocidal intent. The Appeals Court, looking at the language used to reason the Trial Court’s decision, did not find anything improper.  Nor did the Trial Court misapply the legal standard for intent to require that a substantial part of the groups were targeted, an error that the Prosecution claimed in its appeal.

The Appeals Court then addressed the Prosecution’s contention that the Trial Court erred in requiring that the actual perpetrators of the violence –and not the defendant himself, as an instigator—carry a genocidal intent, and disregarded evidence of the defendant’s own genocidal intent. The Appeals Court re-iterated the legal standard for a JCE, which states that members of a JCE can be liable even if they were not the actual perpetrators of the crimes, if the crimes can be imputed to the members of the JCE, and those members, in instigating the crimes, possessed genocidal intent. That a non-JCE member who carries out the acts at the behest of the JCE, does not possess genocidal intent, is not dispositive of whether genocidal intent existed and whether it was possessed by members of the JCE and thus whether the crime of genocide existed. The Appeals Chamber also noted that, given the nature of intent, it is not an element susceptible to direct proof, and must rather be inferred from largely circumstantial evidence.

The Appeals Chamber found that the Trial Court, in its decision, made findings regarding evidence of both the genocidal intent (or lack thereof) on the part of the actual perpetrators of the acts, and that of the participants of the JCE, including the defendant. Thus it did not agree with the Prosecution that the Trial Court erred in its analysis of intent. In fact, the Appeals Chamber hinted that the Trial Court used the intent of the perpetrators as part of the circumstantial evidence offered against the defendant. In this, the Appeals Chamber found nothing improper, although it did express a desire that the Trial Court’s reasoning on this point, and on the intent evidence in general, have been clearer and more detailed. The Court likewise rejected the Prosecution’s contention that the Trial Court failed to properly weigh the evidence, given that court’s decision against certain statements made by the defendant that suggest genocidal intent. Rather, the Appeals Court found the lower decision to have properly considered all of the evidence on the record, taking the statements in question along with the other evidence on the record.

The Appeals Court, however, did find issue with the Trial Court’s interpretation of the evidence. Namely, the Appeals Court noted that the statements themselves do or could suggest genocidal intent, a fact that defense counsel had actually concede at trial. Likewise, evidence showed that other JCE members did possess genocidal intent; other indirect evidence, it found, could also support such a conclusion. Reminding that at this stage of trial, for a Rule 98 bis claim, the evidence is assumed to possess its highest level of credibility, the Court found that the evidence on the record could reasonably support a finding of genocidal intent. As such, the Trial Court’s finding to the contrary was in error.

Finally, the Prosecution argued in its fourth ground of appeal that the Trial Court erred in finding that the evidence presented, even if it could not establish JCE liability, could be sufficient to prove other forms of criminal liability. Because the Trial Court’s decisions on the acts and intent under JCE and genocide liability/claims were upheld, however, the Appeals Chamber found that it did not need to address the potential for alternative forms of liability, which assumed that the JCE/genocide findings would be upheld.

To access the full Decision, click here.

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7 May 2013 – NEWS ABOUT THE COURTS

ICC trial of Kenyan Deputy President William Ruto postponed: Trial Chamber V has agreed to postpone the May 28 trial date of Deputy President William Ruto and Joshua arap Sang.  The parties had a closed-door status conference today regarding the schedule change and other procedural matters and will announce the new trial date after a status conference set for next Tuesday.

UN names members to North Korean human rights probe: Experts from Serbia, Australia, and Indonesia have been named by the U.N. Human Rights Council to carry out an inquiry into possible crimes against humanity in North Korea.  Retired Australian judge Michael Donald Kirby, Serbian founder and president of the Helsinki Committee for Human Rights Sonja Biserko and Indonesian lawyer Marzuki will pursue the year-long probe into what U.N. officials describe as “widespread and systematic human rights violations in North Korea.”

93 year old U.S. deportee charged with war crimes in Germany: 93 year old Hans Lipschis was taken into German custody over 70 years after the U.S. deported him for lying about his Nazi past.  Authorities arrested Lipschis after concluding that there “was compelling evidence” of his participation in war crimes in Auschwitz between 1941 to 1945.  The U.S. deported Lipschis when he immigrated to Chicago in the 1950’s. Previously, there was no evidence connecting him to war crimes, however, Germany has recently begun pursuing convictions because a person served in a death camp because the camp’s only function was to kill.  

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14 March 2013 – NEWS ABOUT THE COURTS

Khmer Rouge foreign minister Ieng Sary dies at 87: On 14 March 2013, the Extraordinary Chambers in the Courts of Cambodia (ECCC) confirmed that Ieng Sary, who was charged with crimes against humanity, genocide, and war crimes, has died. Sary was the brother-in-law of Khmer Rouge leader Pol Pot, and had served as foreign minister and deputy prime minister. During its brief reign from 1975 to 1979, the Khmer Rouge killed over 2,000,000 people. Lars Olsen, spokesperson for the court, stated that “[w]e understand that many people are disappointed that we cannot complete the proceedings against Ieng Sary and determine his guilt ori nnocence on the charges against him, but Case Two is not over, and the charges against Nuon Chea and Khieu Samphan will be pursued.”

Amnesty International calls for ICC action in Syria: On 14 March 2013, Amnesty International Deputy Director for the Middle East and North Africa Ann Harrison called upon the UN Security Council to refer war crimes cases, against both government and rebel forces, to the International Criminal Court (ICC). According to the group’s latest study, there is evidence of the use of “internationally banned weapons,” child soldiers, torture, extrajudicial killings, and the targeting of civilians. The ICC cannot act without a referral by the Security Council.

ICC Chief Prosecutor Fatou Bensouda requests charges against Francis Muthaura dropped: On 11 March 2013, ICC Chief Prosecutor Fatou Bensouda requested that the charges against Francis Muthaura for inciting the post-election violence of 2007 in Kenya, be dropped. Bensouda stated that the charges could not be sustained because the Kenyan government has failed to produce necessary documents, because most of the witnesses had died, and because the remaining key witnesses had been bribed. Although the court has yet to approve the request, it is expected to do so in the coming days.

US Congressman Eliot Engel calls for independent investigation in Sri Lanka: On 14 March 2013, US Congressman Eliot Engel of New York submitted a letter to Secretary of State John Kerry, stating that the United States should join the call for an independent international investigation” into the Sri Lankan government’s post-war actions. Engel’s letter, which cites numerous flaws with the current investigative mechanism, the Lessons Learnt and Reconciliation Commission (LLRC), echoes growing international sentiment that the Sri Lankan government has not made a good faith effort to investigate documented human rights abuses.

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21 February 2013 – NEWS ABOUT THE COURTS

Gbagbo lawyer slams “political trial” as ICC confirmation hearing continues:  In yesterday’s continuation of Laurent Gbagbo’s confirmation hearing, his lawyer spoke strongly against what he deemed a “political trial” at the ICC.  “The Ivorian people deserve better than a political trial, they deserve a trial of those who are really responsible for the country’s decade-long destruction and the court deserves to have been able to look at what really happened in Ivory Coast,” lawyer Emmanuel Altit told the court.  Gbagbo is charged with four counts of crimes against humanity for his alleged role as the mastermind of a campaign of violence during the 2010-2011 presidential election in Cote d’Ivoire.  Meanwhile, Gbagbo asserts that he was evicted from his rightful post as the Ivorian president through a plot by the French.  The hearing is expected to last into next week, with Gbagbo speaking on February 28.

ICTR explains delay in French delay of genocide trials: The ICTR registrar Christopher Bongani Majola cited “structural concerns” as the explanation for why the trials of Wenceslas Munyeshyaka and Laurent Bucybaruta have been delayed.  Their cases were referred to Paris under the ICTR’s 2007 completion strategy.  “The issue of the two cases transferred to France remain of grave concern to the entire tribunal,” said Majola.  “The cases have been delayed for quite a long time but the ICTR has not just sat down and done nothing. We have sent delegations to France to express our concerns that the investigations are moving slowly and that they are not reaching the trial stage.”  His remarks come on the heels of concerns expressed by Rwanda’s Prosecutor General Martin Ngoga over the delays.

EU calls on Cambodia to contribute more money to war crimes tribunal: The European Union called on Cambodia to contribute more funding  for the Khmer Rouge war crimes tribunal, where staff resignations and funding challenges have slowed proceedings.  Under the agreement establishing the tribunal, the United Nations is responsible for funding international staff and operations.  Cambodia is responsible for paying the “national side,” though the Cambodian government has since been criticized for failing to adequately support the tribunal.  The EU is encouraging the Cambodian government to increase its own contribution to the tribunal in the hopes of improving the tribunal’s sustainability and sense of ownership by the Cambodian people and government.

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