Archive for category Uncategorized
UN Report details ongoing human rights abuses by M23: In a report published 9 October 2014, the Joint Office of the UN for Human Rights in the DRC (JHRO) has founds that during a time when M23 had effective control of parts of North Kivu, serious violations of human rights and international humanitarian law – which could constitute international crimes as well as crimes under the Penal Code Congolese – were committed by the group. The UN applauds the Congolese response in seeking justice against any wrongdoers. (UN News).
ICC sets date for Ntaganda Case: Bosco Ntaganda, former alleged Deputy Chief of the General Staff of the Force Patriotiques pour la Libération du Congo [Patriotic Force for the Liberation of Congo] (FPLC), is accused of 13 counts of war crimes. On 9 October 2014, Trial Chamber VI of the International Criminal Court (ICC) scheduled the opening of the trial in the case The Prosecutor v. Bosco Ntaganda on 2 June 2015. (ICC).
HRW Report outlines crimes against Yezidi women in Iraq: HRW has provided a detailed account of the alledged atrocities occurring to Yezidi men, women and children at the hands of the Islamic State (IS) fighters in Iraq. HRW states that forced marriages, abductions, sexual slavery and other international crimes have been and continue to occur. HRW recommends that the UN investigate and that the Iraqi government join the ICC. (HRW).
Kenyatta appears at ICC for status conference: On 8 October 2014, Kenyan President Kenyatta appeared before the ICC for a status conference. He is the first serving head of state to come before the Hague. Mr. Kenyatta is accused of orchestrating post-election violence during 2007. In response to these accusations, Mr Kenyatta says the charges against him are politically motivated and insists that the case should be thrown out. (BBC).
ICC issues an arrest warrant against Sudanese accused Banda: On 11 September 2014, the ICC issued an arrest warrant against Abdallah Banda Abakaer. Banda had previously been under a summons of the court until it decided that an arrest warrant was necessary to ensure the accused’s presence. Banda faces three charges of war crimes allegedly committed in September 2007 against AU Peacekeeping Mission in Sudan. (ICC).
Russell Tribunal condemns actions of Obama and Poroshenko in Ukraine: The informal Russell Tribunal trial, which met in Venice to hear evidence of war crimes committed by the West has condemned the actions of President Poroshenki and President Barack Obama. Allegations of military operations conducted by the West in the Donetsk region, which involved the destruction of schools and hospitals, were presented to the Tribunal. The Tribunal’s ruling wil be sent to the US Secretariat, the EU, and the ICC. (For additional information about this topic, please click here.) (Press, RT).
FIDH asks ICC to investigate crimes in Mexico: The ICC has been charged with the task of investigating a series of alleged violations of human rights committed between 2006 and 2012 in Baja California at the hands of Mexican soldiers. The court rejected a 2011 request by Mexican activists but at this point an investigation still remains a possibility. (Fox).
Croatian prosecutor and MICT sign memorandum on future prosecutions: Croatia’s Chief Prosecutor and prosecutor for the MICT, successor of the ICTY, have signed a memorandum of understanding aimed at more efficiently prosecuting persons charged with the alleged commission of violating international human rights law. The ICTY exit strategy will continue as necessary, allowing for MICT to effectively maintain its caseload in the most efficient manner. (Google News).
UN Releases Report on Libya: The UN has issued a report indicating that there are serious violations of international human rights and humanitarian occurring in Tripoli and Benghazi. Civilians are being abducted and are subjected to unlawful killings. There is also a deepening political polarization taking place in Libya, leading to many to a decision to leave the country. (UN News).
Sri Lanka NGOs respond to UN War Crimes Report: Several NGOs have criticized the UN for failing to understand the seriousness and nature of he problem in connection with civilian death during the end of the civil conflict in India. There are also allegations that the UN failed in its mandate to protect civilian populations by relocating. The UN has declined to comment on the report’s findings at this time. (Reuters).
Nuon Chea to appeal ECCC verdict: Cambodia defense attorneys for former Khmer Rouge leader Nuon Chea have decided to appeal on behalf of their client on the basis that he did not commit at least one of the crimes for which he was found guilty. The majority of evidence for the appeal is from documentary filmmaker Thet Sambath’s research into the killings. Apparently, there is evidence that Chea was not involved. At this point, sources say it is unlikely the case will be reheard. (VOA).
UN to send team to investigate rights violations in Iraq: The UNHCR said Monday that it will send an investigative team to Iraq to look deeper into the alleged crimes committed by the rebel group ISIS. The investigation is estimated to cost $1.2 million. The allegations of mass killings and other atrocities continue to mount against ISIS. The UN has said that this missions main purpose is to protect the people of Iraq. (For additional information on this topic, please click here) (IBT, Reuters).
Ble Goude confirmation hearing delayed: Charles Blé Goudé, national of Côte d’Ivoire, 42 years of age, allegedly bears individual criminal responsibility, as indirect co-perpetrator, for four counts of crimes against humanity, namely murder, rape and other forms of sexual violence, persecution, and other inhuman acts, allegedly committed in the territory of Côte d’Ivoire between 16 December 2010 and 12 April 2011. The ICC has decided to postpone the commencement of charges at the Defence’s request to give them time to finish their preparation. (ICC).
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.
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.
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.
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
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.