Archive for category Witnesses
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).
Security Council to vote on deferral of Kenyatta trial: The fifteen member states of the U.N. Security Council will vote on a resolution this Friday, 15 November 2013, calling for a one year suspension of the ICC trials against Kenyan President Uhuru Kenyatta and Deputy President William Ruto. The AU backed resolution will need the support of at least nine member states in order to pass. Experts have predicted, however, that the resolution will fail since seven members are currently signatories of the ICC. (Global Post).
French court decides to extradite Rwandans: A French appeals court ruled this week that two genocide suspects could be extradited to Rwanda. The country has previously denied extraditions because of concerns suspects will be denied fair trial rights. However, French Judge Jean Bertholin assured Claude Muhayimana and Innocent Musabyimana that if the extradition was approved by a higher court, the two would “be guaranteed a fair trial” in Rwanda. Muhayimana and Musabyimana are accused of participating in mass killings of ethnic Tutsis during the 1994 genocide that claimed around 800,000 lives. (Global Post).
Kenyatta seeks public testimony of prosecution witnesses: Kenyan President Uhuru Kenyatta has asked the ICC to deny granting protective measures of prosecution witnesses. Kenyatta argued suppressing identities and granting immunity from self-incrimination “constitutes an incentive for witnesses to lie and put forward false claims.” Kenyatta stated any measures violated his right to a fair and public trial. ICC Prosecutor Fatou Bensouda earlier requested protective measures for ten of the fifteen witnesses expected to testify against the President. (The Star).
Habre proceedings to be aired in Senegal and Chad: The trial of the former dictator of Chad, President Hissene Habre, will be broadcasted on television and radio in Senegal and Chad. Senegalese Justice Minister Sidiki Kaba announced the two countries were in the process of “work[ing] out which media outlets . . . will be given responsibility for the transmission.” Habre is being tried by a special court in Senegal for crimes against humanity and war crimes related to his 1982-1990 rule. (Global Post).
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
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.
UN address ICC issues, including Kenya deferral and Sudan’s outstanding warrants: On Thursday, 31 October 2013, ICC President Sang-Hyung Song updated the UNGA on the workings of the Court, including the Kenya, Libya, Sudan and Ivory Coast cases. He asked all ICC stakeholders to uphold the integrity of the Rome Statute, and particularly highlighted the support needed from the UN to address the outstanding warrants in Sudan against the four individuals charged with committing genocide in Darfur. In a separate meeting, the UNSC representatives from Kenya and the AU were addressing the ICC concerning the possibility of deferring the ICC cases against President Uhuru Kenyatta and Deputy President William Ruto for one year. Under Article 16 of the Rome Statute, a prosecution can be deferred for up to 12 months by a resolution of the UNSC under Chapter VII of the UN Charter. (To read more about this topic, please click here.) (The Star, UPI).
Serbia to receive positive report from ICTY: Rasim Ljajic, the president of the National Council for the ICTY Cooperation, will mention Serbia’s cooperation with the ICTY in a report he will deliver to the UN in December, specifically referring to Serbia promptly delivering documents and allowing access to witnesses and archives. Ljajic met with ICTY prosecutor Serge Brammertz on Monday, 4 November 2013, and he met with Serbian prime minister Ivica Dacic and the chief Serbian prosecutor Vladimir Vucicevic on Tuesday, 5 November 2013. Ljajic and Brammertz discussed placing individuals sentenced by the ICTY into Serbian prisons, a possibility the Tribunal had previously declined. (World Bulletin).
Witness testifies that Karadzic was a weak leader: Former Bosnian Serb leader Radovan Karadzic’s trial resumed this week, with Karadzic’s former aide Jovan Zametica testifying that Karadzic had not had effective control over his army. Zametica joined the Republika Srpska (RS) in 1993 and became an advisor to Karazdic in 1994. He testified that Karadzic had been a weak leader of the RS; his army had apparently been disobedient, he had allowed local chieftains to make important decisions, and he had simply been a representative leader to the international community. He also asserted that Karadzic had been tolerant of non-Serbs, as shown by the fact that Zametica is a Muslim. Karadzic is charged with genocide before the ICTY. (Institute for War & Peace Reporting).
ICTR will help Rwanda with transferred genocide cases: The ICTR has promised to help the Rwandan National Prosecution Authority with the genocide cases the ICTR has transferred to Rwanda. ICTR prosecutor general Hassan Bubacar Jallow explained that although the work of the ICTR is winding down, it will continue to support the Rwandan prosecution to ensure that the cases are handled successfully and that the genocide suspects, many of whom have fled to France, are caught and prosecuted. Jallow, ICTR President Judge Vagn Joensen, and several senior officials from the ICTR are currently in Rwanda and will meet with the supreme court judges and Minister of Justice Johnston Busingye to review ICTR procedures. (Rwanda Focus).
MICT is tracking “big fish” wanted for Darfur genocide: Jallow announced on Monday, 4 November 2013 that three of the most wanted suspects for the genocide in Darfur will likely be caught soon, because the Mechanism of the International Criminal Tribunals (MICT) was able to obtain information that could lead to their arrest. The three fugitives are Felicien Kabuga, who allegedly financed the genocide, Protais Mpiranya, the former Presidential Guards commandant, and Augustin Bizimana, the former defense minister. Referred to as “big fish”, their cases would be handled by the MICT, as opposed to being transferred to Rwanda. (The New Times).
STL fines defense in Hariri case: Earlier this week, the STL fined defense lawyers for making “frivolous” appeals in order to delay the start date of the trial concerning the assassination of former Lebanese Prime Minister Rafic Hariri. The defense appealed the appointment of Judge Janet Nosworthy, who replaced the former president of the trial chamber upon his resignation in September, which was deemed a “frivolous” delay tactic by the Court. The defense also asserted that it needs more time to prepare for trial due to the high volume of evidence in the case, and that Lebanon was not cooperating in assisting the defense’s investigations. The Court did not reveal how much the defense was fined. (The Daily Star).
British MPs call executions in Iran crimes against humanity: British MPs have declared that the execution of 16 political prisoners on 4 October 2013 in Zahedan, Iran is a crime against humanity, and are calling on the UN to investigate these events. The British Parliamentary Committee for Iran Freedom stated that Mohammad Marzieh, the prosecutor general of Zahedan, had confirmed that the prisoners had been executed because they had killed revolutionary guards in Saravan. The committee also noted, however, that Hedayatollah Mir-Moradzehi, Saravan’s representative in the Iranian Parliament, stated that it was still unclear who had killed the revolutionary guards. The committee recommended that the UN Security Council and the UN Human Rights Council review the events. (Foreign Affairs Committee of the National Council of Resistance of Iran).
Chief of UN inquiry into human rights abuses in North Korea moved to tears: The chief of the first-ever human rights investigation of North Korea, Michael Kirby, said the inquiry uncovered “copious evidence” of human rights abuses in North Korea. “Some of the testimony has been extremely distressing. I am a judge of 35 years of experience and I have seen in that time a lot of melancholy court cases which somewhat harden ones heart,” said Kirby. “But even in my own case, there have been a number of testimonies which have moved me to tears.” Witnesses described such atrocities as a woman having to drown her baby, children starved and imprisoned from birth, and entire families tortured for watching foreign television. Though the inquiry repeatedly invited North Korean representatives to partake in public hearings and have an opportunity to question witnesses, North Korean officials have consistently declined, describing the investigation as a “political plot” and denying UN investigators access to the country. Most testimony during the inquiry has been obtained from North Koreans who have fled to South Korea seeking refuge. (BBC)
Britain refutes claims that Taylor is ill-treated in prison : Through their family spokesman Sando Johnson, the family of Charles Taylor held a press conference in Monrovia, claiming that British prison officers were withholding food and water from Taylor. Taylor was transferred to the British jail two weeks ago. “Information we got revealed that he is not given food and even water,” said Johnson. “If this continues for the next two days, Taylor may die in jail.” A spokeswoman for the British Prison Services has refuted the claims as “total nonsense.” Officials pointed out that under the terms of his sentence, representatives from the Committee for the Prevention of Torture are free to visit him at any time and monitor the conditions in which he is being kept. Taylor will likely spend the rest of his life in prison after being found guilty of supporting rebels during the Sierra Leonean civil war – during which 120,000 lives were lost – in exchange for diamonds. (AFP)
Thailand and Cambodia reaffirm amicable ties regardless of ICJ ruling on boarder dispute: Thailand and Cambodia reaffirmed their strong ties earlier this week prior to a ruling from the International Court of Justice regarding borders at the Preah Vihear Temple. The ruling, which will interpret the court’s 1962 ruling on the same matter, is due out November 11. Surapong Tovichakvchaikul, Thailand’s Deputy Prime Minister, said he held a talk with his Cambodian counterpart, Hor Nam Hong, and the two are making necessary preparations to safeguard peace along the border. He said that regardless of the November 11 ruling, the two countries will remain on good terms. Nam Hong gave similar assurances, stating that the relationship between the two countries would not be affected by the ruling, and he called on parties in both countries to accept the verdict in the name of peace. (Pattaya Mail)
Chea’s defense team denounces “showcase” trial: Lawyers from Nuon Chea’s defense team called his trial “a showcase of the conclusion that everyone involved wanted and expected from the day the tribunal was constituted,” stating that “no one in this court is interested in ascertaining the truth.” One lawyer – Voctor Koppe – cited political interference as preventing his team from obtaining the evidence they needed to adequately secure their defense. Chea (“Brother No. Two”) and former head of state Khieu Samphan stand trial for their role in the Khmer Rouge atrocities in Cambodia in the late seventies. Earlier this week, prosecutors requested the maximum sentence – life imprisonment – for the men. (AFP)
Suspended sentences possible for Kenyatta and Ruto: ICC judge Chile Ebo-Osuji has said that suspended sentences for President Kenyatta and Vice President Ruto of Kenya may be possible, meaning that if they are convicted, their sentence would not be imposed until they leave office. The African Union recently appealed to the ICC to delay their trial given their responsibilities in their home country with regards to reconciliation and development, and Judge Ebo-Osuji has stated that the court could consider any “real contributions” in sentencing. “Such mitigating circumstances could result in penitent credits or suspended sentence pending completion of term of office,” said Ebo-Osuii, “depending, of course, on other considerations as well.” However, the judge did caution the UN Security Council with regards to the AU’s bid for deferral. (All Africa).
Fifth witness in Ruto case speaks to symbolic protection against arson for ODM supporters: The fifth witness in the case against Kenya’s Deputy President William Ruto testified that houses belonging to ODM supporters in Kenya’s 2007 election were symbolically marked to spare them from being burned. He described how Kalenjin warriors burned homes belonging to Kikuyus, but skipped homes marked with “ODM 41.” “As we were running, I noticed that the houses that did not have the label ‘ODM 41’ were burning,” he said. He further testified that the young warriors were running with jerricans of fuel through the homes. (Standard Digital)
Posted by carolinguentert in Crimes against Humanity, Fair trial/Accused's rights, Fatuo Bensouda, Genocide, Guantanamo, Human Rights Violations, ICC, ICTY, Investigations, Kenya, News about the Courts, Other domestic courts, Post-Election Violence, Victims, War Crimes, Witnesses on October 22, 2013
ICC Appeals Chamber to announce judgment on Ruto’s presence at trial: On Tuesday, 22 October 2013, the Appeals Chamber of the ICC announced that on Friday, 25 October 2013, it will deliver its judgment on Prosecutor Fatou Bensouda’s appeal against the Trial Chamber, which had granted Kenyan Deputy President William Ruto conditional excusal from being physically present at his trial. The Appeals Chamber will decide whether he must attend the entirety of his hearing, instead of limited sessions. On Friday, 18 October 2013 the Trial Chamber granted Kenyan President Uhuru Kenyatta’s request to be excused from being present at his trial, but he must attend the opening and closing statements of all parties, hearings of victims, the delivery of judgment in his case, and if he is found guilty, sentencing hearings, the delivery of sentencing, the entirety of victim impact hearings, and reparation hearings. He was excused from being present at the other sessions to accommodate his presidential duties. Bensouda is currently trying to decide whether in addition to Ruto’s case, she should appeal the Trial Chamber’s decision regarding Kenyatta. (ICC-CPI, The Star). (For additional information on this topic, please click here and here).
Fourth witness in Ruto trial disowns testimony: The fourth witness in the trial against Kenyan Deputy President William Ruto disowned part of the testimony presented by the prosecution, which linked Ruto to the term “madoadoa”; a blot in the voting pattern. The witness denied having been at 64 Stadium in Eldoret during the 2007 election campaigns, even though the prosecution maintained that the witness had previously told them that he had attended the rally. The witness also denied having heard Ruto refer to Kikuyus as “madoadoa” in the context of three-piece voting for the Orange Democratic Movement. Presiding Judge Chile Eboe-Osuji said that any evidence given by the prosecution that conflicts with the witness’s statements would not be accepted by the court. (Capital FM).
Amnesty International says U.S. drone strikes could be war crimes: After investigating nine missile attacks that recently took place in Pakistan, Amnesty International issued a report that the secret drone campaign the CIA undertook against suspected terrorists in Pakistan may constitute war crimes, and that the US officials who conducted the attack should be tried for these attacks. The report was issued in conjunction with an investigation by Human Rights Watch concerning six missile attacks in Yemen, which the group believes may violate international human rights law, the laws of armed conflict, and Barack Obama’s guidelines concerning the use of drones. Both groups have focused their investigations on civilian deaths. (The Guardian).
ICC announces new investigation strategy: The ICC’s 122 member states received guidelines last week concerning a new investigation strategy soon to be adopted by the ICC. Experts say that the new strategy will improve evidence gathering, and although details about the guidelines have not been released, they will aid the Office of the Prosecutor (OTP) in bringing cases. For example, prosecutors will be able to ensure that cases are ready at an earlier stage in ICC proceedings and that court investigators can corroborate evidence collected by third parties, both of which have been challenges prosecutors have faced in the past. Judges at the ICC have previously criticized the OTP and the ways in which evidence was collected and investigations conducted, which this new strategy is meant to rectify. (Institute for War & Peace Reporting).
Guantánamo prosecutor agrees al-Qaida suspect should be tried in federal court: The chief war crimes prosecutor of the Guantánamo Bay Navy Base said on Monday, 21 October 2013 that he agrees with the Obama administration’s decision to prosecute Abu Anas al Libi in a federal court as opposed to a military commission. Libi is an alleged al-Qaida conspirator accused of participating in the 1998 U.S. embassy bombings in Nairobi, Kenya, and Dar es Salaam, Tanzania, which killed 224 people. Libi was detained by U.S. forces on 5 October 2013 in Tripoli, Libya, interrogated on a war ship, and brought to a New York court; he was not brought to Guantánamo. (Miami Herald).
Russian MFA to terminate Mladic’s ICTY trial: The Russian Ministry of Foreign Affairs (MFA) announced that it is working towards the early termination of General Ratko Mladic’s trial before the ICTY. Opposition to the trial led to the formation of the Public Committee for the Protection of Mladic six months ago, which views the work of the Tribunal as violating international law, because the judge presiding over the case is Dutch, and a Dutch battalion was present in Srebrenica, which the group believes would create impartiality. Mladic is accused of committing genocide and crimes against humanity in the blockade of Sarajevo, where 10,000 people died, and an incident in Srebrenica, where between 7,000 and 8,000 Bosnians were killed. (InSerbia).
Ruto responds to AU request for deferral: Mere days after the AU urged the permanent international court to defer the case against two Kenyan executives, Deputy President William Ruto reiterated his intention to cooperate fully with the ICC. On Tuesday, 15 October 2013, Ruto stated that he “more preferably . . . would want to work with the court’s decision to grant [the executives] excusal from continuous attendance” in The Hague. The AU, on the other hand, announced its plan to find alternate means of deferrral if the ICC did not delay the Kenyan President’s trial for one year pursuant to Rome Statute Article 16. (Voice of America).
Russian committee seeks termination of ICTY’s Mladic trial: A Russian committee established specifically to research the charges and legality of the ICTY’s case against Bosnian Serb commander Ratko Mladic has requested the UN Security Council terminate the remaining proceedings. According to committee Chairman Pavel Dorohin, the Tribunal is prejudiced against Serbs and the judges consistently deny the accused fair trial rights. Mladic faces charges of genocide and crimes against humanity over accusations the military leader directed attacks against civilians during the 1992-1995 Bosnian War. (In Serbia).
ICC witness in Ruto trial talks death, destruction: An ICC prosecution witness testified on Tuesday, 15 October 2013, to discovering dead bodies, some eaten by animals, and burnt down and looted houses in the wake of Kenya’s 2007 presidential election. The witnesses statements were presented as evidence in the shared trial against Deputy President William Ruto and radio journalist Joshua arap Sang for crimes against humanity. Ruto argued the “methodology of the prosecution to manipulate, buy and bribe witnesses in their bid to incriminate us in these allegations [was] appalling.” (All Africa).
Cambodia-Thailand land dispute to be resolved next month at ICJ: On 11 November 2013, the ICJ is expected to rule on the ownership of an area of land near the Cambodian and Thai border. The 4.6 square km disputed area is in close proximity to the Preah Vihear temple Cambodia was awarded in 1962 by the ICJ. Cambodia is prepared to cooperate with Thailand after the decision is issued and claims the verdict will not affect the country’s good relationship with its neighbor. (Global Times).
ICC judges to rule on admission of untried evidence: Former Vice President of the DRC Jean Pierre Bemba has filed motions challenging the prosecution’s request to admit nearly 3,000 pages of transcripts not previously admitted as evidence in the ICC trial. Bemba alleged the introduction of transcripts the defense had no opportunity to cross examine violates fair trial rights. The former Vice President argued the Court’s Rules of Procedure and Evidence affords an accused the chance to “make submissions on reliability, probative value or prejudice of . . . potential new evidence.” ICC Prosecutor Fatou Bensouda, however, argued the relevance and probative value of the evidence outweighed any potential prejudicial effect on Bemba. (Open Society Foundation).
Rwandan President criticizes ICC: Rwanda’s Paul Kagame is the latest African President to criticize the ICC for prosecuting sitting heads of state. In a recent African Review report, Kagame accused Western powers of unfairly targeting Africans and engaging in “selective” justice. Zimbabwe’s president previously warned Kenyan President Uhuru Kenyatta against attending his pending ICC trial in The Hague because of bias. (News 24).
ICC Annual Report: Busiest year in record, but more support needed from Security Council: The International Criminal Court issued their annual report to the UN General Assembly, noting that this is their busiest year on record with eight situations under investigation, eight under preliminary examination, and several cases at the trial stage, including the trials of Deputy President William Ruto, journalist Joshua arap Sang, with President Uhuru Kenyatta’s trial set to kick off in mid-November. The report also called upon the UN Security Council to provide greater support to the Court. “UN Security Council referrals to the ICC – such as Libya and Darfur – risk becoming futile without the necessary support [from the Council] to enforce the Court’s decisions,” according to the report. (UN News Source) For more on this story, please click here:
AU may request that ICC defer Kenyatta case: AU Commission Chair Nkosazana Dlamini-Zuma told a delegation visiting from the UN Security Council that the cases against Kenya’s sitting President Uhuru Kenyatta and the country’s Deputy President William Ruto should be deferred for a year. She cited the need for the leaders to focus on Kenya’s security, highlighting the recent terrorist attacks on Nairobi’s Westgate shopping mall. The AU is set to hold their summit late this week about the ICC, and a formal request for a deferral of these trials may result. The UN Security Council also has the power to defer ICC cases under Article 16, though this action requires the unanimous support of all Security Council members. (Voice of America News)
Second witness resumes testimony in Ruto trial at ICC: The second witness in the trial against Deputy President William Ruto of Kenya expanded on his testimony from earlier in the week, focusing on the management of the Orange Democratic Movement (ODM) party. He gave specific details regarding the names of coordinators in target provinces, described their management structure, and expanded on the group’s priorities, and specifically named Ruto as one of the coordinators in question. (Standard Media)
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.
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