Archive for category Witnesses
ICC to decide on witnesses refusing to testify in Ruto case: The trial against Kenyan Deputy President William Ruto and journalist Joshua Sang before the ICC continued on Monday, 17 February 2014, but several witnesses have refused to testify, an issue the judges are expected to rule on this week. Prosecutor Fatou Bensouda has asked the Court to summon seven witnesses, whom she alleges have refused to testify due to bribery, whereas Attorney General Githu Muigai argued that the Court cannot compel testimony. So far, 10 witnesses have testified. (The Star).
Genocide survivors outraged by ICTR acquittals: A Rwandan genocide survivors’ association declared the ICTR Appeals Chamber’s 11 February 2014 acquittal of two former army officers of charges related to the 1994 Rwandan genocide to be an “outrageous” decision and a “denial of justice.” Major Francois-Xavier Nzuwonemeye was acquitted because his alleged role in the assassination of the Prime Minister and killing of 10 Belgian UN Blue Helmets had not been proven beyond a reasonable doubt, and General Augustin Ndindiliyimana was acquitted because the Court ruled that he had not had effective authority over subordinates who had been abused. In both cases, the Appeals Chamber found errors in the assessments of the Trial Chamber. The sentence of a third officer, Innocent Sagahutu, was reduced from 20 to 15 years because the Court found that he had not ordered the killing of two Belgian UNAMIR peacekeepers. The Court also said that it would deliver a decision concerning the sentence of former army chief Augustin Bizimungu at a later date. (For more information on this topic, please click here and here). (AFP, ICTR, AllAfrica).
ICTY Accused, Milan Lukić, transferred to Estonia to serve sentence: Milan Lukić, who was sentenced to life in prison by the ICTY in 2009 for having committed crimes against humanity and violation of laws and customs of warfare, a conviction that was confirmed by the Appeals Chamber in 2012, has been transferred to Estonia, where he will serve out his sentence. (in Serbia).
Parties prepare final submissions after confirmation hearing concludes in Ntaganda case: Following the conclusion of the confirmation of charges hearing in the case against Bosco Ntaganda before the Pre-Trial Chamber of the ICC, both sides are preparing final written submissions. The Prosecutor and the Legal representatives of the victims have to turn in their submissions by 7 March 2014, and the Defense may reply to these submissions until 4 April 2014. The judges will decide whether to confirm the charges, decline to confirm the charges, or request further evidence within 60 days of receipt of the Defense’s written submission. Ntaganda is suspected of committing war crimes and crimes against humanity in Ituri, DRC between September 2002 and September 2003, and the Pre-Trial Chamber II concluded the five-day hearing concerning these charges on 14 February, 2014. (ICC-CPI).
STL trial bring sense of justice as fifth accused is joined to case: On 14 February 2014, exactly nine years after the assassination of Rafic Hariri, mourners and friends of the former Lebanese Prime Minister were hopeful that the STL will bring those accused of the bombing to justice. Several days prior to the anniversary of Hariri’s death, on 11 February 2014, the STL had joined the case of a fifth alleged Hezbollah member to the trial of the four alleged members currently accused. (For more information, please click here) (The Daily Star).
UNHCR recommends international investigation into Sri Lanka war crimes: The UN High Commissioner for Human Rights Navi Pillay has called on the UN Human Rights Council to conduct an independent international probe into the war crimes committed in Sri Lanka during the Liberation War. According to Pillay, the Sri Lankan government has consistently failed to address the human rights violations that occurred between 1972 and 2009. (The Daily Star).
ICTY Prosecutor comments on reconsideration motion in Perišić case: On Monday, 3 February 2014, ICTY Prosecutor Serge Brammertz announced that his Office requested that the ICTY Appeals Chamber reconsider its acquittal of Momčilo Perišić, the former Chief of Staff of the Yugoslav Army, who had been convicted to 27 years in prison for aiding and abetting crimes committed in Sarajevo and Srebrenica between 1993 and 1995. In its motion for reconsideration, the Office of the Prosecutor argued that the “specific direction” requirements on which the Appeals Chamber based the acquittal is incorrect and should be overturned. (ICTY).
Witness from explosive unit testified at STL: On Monday, 3 February 2014, Abdel-Badih al-Soussi, who was the manager of the explosives unit of the Internal Security Forces at the time Prime Minister Rafik Hariri was assassinated, testified before the STL. Although he had not gone to the crime scene immediately following the explosion, he had attended a meeting at the military court that afternoon, to which a member of the explosives bureau had brought car parts from the site. The judge ordered that the parts be examined and the site cordoned off to the public. Soussi testified that he did not ask that the car parts be returned to the crime scene, nor did the judge discuss during the meeting whether parts of the motorcade should be removed. (The Daily Star).
Judge replaced on Kenyatta Trial Chamber: Following a decision by the Presidency of the ICC, Judge Geoffrey A. Henderson replaced Judge Chile Eboe-Osuji in the case against Kenyan President Uhuru Kenyatta before Trial Chamber V(b). Judge Henderson is from Trinidad and Tobago, and was elected at the Assembly of States Parties to the Rome Statute in November 2013. He will serve as a judge at the ICC until 10 March 2021. Judge Eboe-Osuji had excused himself from the trial. (ICC-CPI).
U.S. urged to suspend aid due to human rights violations in Egypt: On Monday, 3 February 2014, the Working Group on Egypt, as part of the NGO Human Rights First, released a statement that it had sent a letter to U.S. President Obama, urging his administration to cease sending aid to Egypt until the Egyptian government progresses in transitioning to a democracy and improves human rights conditions within the country. According to the NGO, depriving Egypt of aid until progress has been made sends a clear signal that the U.S. does not tolerate the human rights abuses that have occurred in Egypt, which are documented in a report the group recently released. (Human Rights First).
Former Bangladeshi Minister indicted for war crimes: On Sunday, 2 February 2014, the International Crimes Tribunal-2 indicted Syed Mohammad Qaisar, a former Bangladeshi minister from the Jatiya Party, on 16 charges of war crimes, including the commission of genocide. He and his group, the “Quaisar Bahini”, allegedly committed crimes against humanity in Habiganj and Brahmanbaria during the 1971 Liberation War. According to the prosecution, Quaisar had also served as a commander of the Rajakars, which was an auxiliary group of the former Pakistani army. The opening statement of the prosecution will be made on 4 March 2014. (Z News).
AU issues statement urging united front concerning ICC and Kenya, Sudan cases: In a statement issued Saturday, 1 February 2014, the AU expressed that it was not pleased with the UN Security Council’s refusal to defer the trials of Kenyan President Uhuru Kenyatta, Kenyan Deputy President William Ruto, and Sudanese President Omar Al Bashir. The AU encouraged all of its members to comply with AU decisions and stand together on this issue in order to defer the proceedings. Botswana is currently the only AU member state that has officially opposed the AU’s decision to challenge the ICC cases. (Sudan Tribune).
Kenyan High Court allows Barasa extradition to ICC: The Kenyan High Court has dismissed a petition submitted by journalist Walter Barasa arguing against his impending extradition. Barasa faces allegations of bribery in relation to the Ruto and President Kenyatta trial. It is alleged that Barasa engaged in trying to bribe witnesses to withdraw their testimony. (For additional information on this topic, please click here) (Chicago Tribune, Star).
Rwandan former intelligence chief to appear in Paris court: France has opened its doors to the prosecution of alleged human rights abusers who participated in the Rwandan genocide in French courts. There are currently 27 cases waiting to be tried. Many human rights advocates are celebrating this decision because they claim France has not participated to the extent other countries have in years past. (SeattlePI).
Kenyan Government invited to make submissions on assistance to ICC: The ICC has invited Kenyan officials to appear before the court and to share their insight into how Kenyan law may assist the ICC in ascertaining more witnesses for the ongoing Kenyatta case. It is likely that Attorney General Muigai will make the trip to the ICC in two weeks. (For additional information on this topic, please click here) (Capital News, ICC).
Serbian political leader arrested for war crimes; protests in Kosovo: The leading Kosovo Serb politician, Oliver Ivanovic, has been arrested by the European Union Rule of Law Mission (EULEX) on suspicion of war crimes against ethnic Albanians. EULEX has the authority to handle sensitive cases that the local judiciary is unable to devote resources to. Demonstrators in Kosovo have expressed frustration over the arrest and are asking for Ivanovic to be released. For additional information on this topic, please click here) (BBC, World Bulletin).
AU calls on ICC to halt prosecutions against sitting heads of state: The AU is calling for solidarity in protest of ICC proceedings against sitting African presidents. AU members assert that Kenya and South Sudan need their presidents in place to avoid instances of instability and possible violence. (PressTV).
ICTY Appeals Chamber affirms Đorđević judgment but reduces sentence: On Monday, 27 January 2014, the ICTY Appeals Chamber affirmed Vlastimir Đorđević’s guilt for crimes committed against Kosovo Albanians in 1999. However, the Appeals Chamber also reduced his prison sentence from 27 to 18 years, because it reversed Đorđević’s convictions for aiding and abetting war crimes and crimes against humanity, as well as certain findings of the Trial Chamber concerning Đorđević’s participation in a joint criminal enterprise (JCE). Đorđević was originally convicted in 2011 for having committed war crimes and crimes against humanity through his participation in a JCE. (ICTY).
Mladic refuses to testify in ICTY Karadzic case: On Tuesday, 28 January 2014, Ratko Mladic refused to testify at Radovan Karadzic’s case before the ICTY. He refused to take an oath, and referred to the Court as “satanic.” After answering Karadzic’s first question concerning the posts and dates of his military career, Mladic subsequently refused to answer questions, citing to his health and the possibility of self-incrimination. Karadzic is facing 11 charges, including allegedly committing genocide at Srebrenica during the Kosovo conflict. (BBC).
ICC Prosecution witness questioned on USAID actions in Kenya: On Monday, 27 January 2014, Kenyan Deputy President William Ruto’s defense counsel Karim Khan questioned witness 356 testifying before the ICC about whether the witness knew of American Ambassador to Kenya Michael Rannerberger “trying to get people to give evidence against Mr Ruto”. The question was part of the defense’s argument that NGOs funded by USAID had influenced witnesses to testify against Ruto by paying them, and that Ranneberger had traveled to the North Rift region in order to discourage people from supporting Ruto. The witness said that he was not aware of the ambassador’s travel and USAID’s funding. When asked, the witness also said that he had not been influenced to testify by the $20,000 he received from the ICC’s Victims and Witnesses Unit. Khan asked further questions in a private session. (For additional information about this topic, please click here) (Kenya Monitor, Standard Media).
Lebanese firefighter testifies at STL about Hariri bombing scene: On Monday, 27 January 2014, Khaled Tubaily, a Lebanese firefighter who was one of the first to arrive at the site in Beirut where former Prime Minister Rafik Hariri was killed by a bomb, testified before the STL. He said that “volcanoes of fire” were erupting from the site, and that the damage reached as far as 4 kilometers away, which will help the prosecution in asserting that the bombing occurred above ground, whereas defense lawyers have stated that the explosion was likely underground. Five Hezbollah members have been indicted for the 14 February 2005 attack. (The Daily Star).
HRW Report criticizes Kenya’s protection of human rights and culture of impunity: Kenya has rejected a recent report released by Human Rights Watch (HRW), which criticizes Kenya for failing to properly address impunity, citing to the country’s failure to address the 2007-2008 post-election violence. Specifically, the report points to the government’s lack of support for the trials of Uhuru Kenyatta and William Ruto before the ICC. The report also criticizes slow reforms in the Kenyan police force, which allegedly unlawfully tortured and killed 120 individuals between May and August 2013. Kenya’s Cabinet Secretary for Foreign Affairs labeled the report as “outrageous and incomprehensible” and asserted that Kenya is complying with international law and that the allegations of force used by the police were based on security actions taken years ago. (Sabahi).
Resolution passed by Sri Lanka council on international investigation into war crimes: On Monday, 27 January 2014, two months before UN Human Rights Commissioner Navi Pillay will deliver a report concerning the Sri Lankan government’s progress in addressing war crimes committed during the Sri Lankan Civil War before the UN Human Rights Council, passed a resolution for an international probe into these alleged war crimes. Specifically, the resolution calls for an inquiry into the “ethnic cleansing” that allegedly took place and rejects Sri Lanka’s national inquiry mechanism in favor of an international inquiry.
Former Peruvian Government cleared of CAH for forced sterilization: Former Peruvian President Alberto Fujimori was cleared of the allegation that he and his cabinet forcibly sterilized about 300,000 indigenous women as part of a national program in order to reduce birth rates in poor, rural areas of Peru during his term in office. The prosecutor, who interviewed women affected by the procedures, determined that Fujimori had not committed crimes against humanity and that the women had not been coerced into undergoing sterilization procedures. Multiple human rights groups had urged the government to prosecute the cases of about 2,000 women affected by the procedures, and in 2010, the Inter-American Commission on Human Rights directed Peru to investigate the death of a woman who had undergone such a sterilization procedure. (Chicago Tribune).
Uganda skeptical of success of Kony talks: A telephone call which was supposed to occur between Ugandan official Henry Okello-Oryem and Joseph Kony has failed to materialize. Kony sent a letter to government officials in an apparent effort to ask for forgiveness and to an end to the violence in Uganda. Officials are skeptical that a serious rebel leader would ever be willing to sit down to discuss peace. (BBC).
Mladic expected to give testimony in Karadzic trial: Mladic has been called to give evidence as a reluctant witness for the defense at the ongoing ICTY hearing. Mladic has consistently refused to testify on the basis of self-incrimination. However, if he does testify Karadzic will be hoping that his evidence will undermine the prosecution’s charge that there was a partnership between the two men during the war. (Irish Times).
UN highlights ongoing crimes by pro-Assad and rebel forces in Syria: U.N. war crimes experts continue to discover and document evidence of torture and killings on both sides of the war in Syria. The same experts are growing more certain that they will be able to build a case that could be taken to the ICC. (Reuters).
ICC delays Kenyatta trial following continued defense pleas: The ICC has delayed the start of the Kenyatta trial after prosecutors asked for more time to strengthen their case. The prosecution’s case has been on the verge of collapse since losing one of its witnesses in December of last year. (Reuters).
War Crimes division in Kenyan courts encounters delays: The delayed formation of the ICD has left Kenyans worried that it may never materialize. The Attorney General’s office has stated that it wants to confirm that the creation of the ICD is done correctly so it can effectively compliment the work that has already begun. (All Africa).
ICC Prosecutor requests trial adjournment: Fatou Bensouda has asked the ICC for an adjournment in the trial of Kenyan President Kenyatta. The recent loss of two key witnesses means that the case does not satisfy the high evidentiary standards that are required. (BBC).
Kenyatta Witness explains leaving: The Mugiki witness who has declined to testify against President Kenyatta has revealed why he quit as an ICC witness. According to his statements the ICC investigation never reached a level of competence he felt necessary to compel his testimony and nor did the prosecution ever understand the ideology of the Mugiki. Lastly, the witness has stated that his primary desire to become a witness was to preserve his own life for fear of being killed because of his status as a Mugiki. (AllAfrica).
AU Leader condemns S. Sudan attacks: Nkosazana Dlamini Zuma, chairperson of the AU, has stated that the violence currently occurring in the capital of S. Sudan has escalated to what she believes to be war crimes. Former vice president Riek Machar and President Salva Kiir have expressed a willingness to meet to discuss a peaceful resolution. The S. Sudan government estimates that 500 hundred people have died as a result of the current conflict since Sunday last week. (Sudan Tribune).
Seselj Trial continues despite judge’s removal: The case against Serbian nationalist politician Vojislav Seselj has been continued with the addition of a replacement for judge Harhoff who was disqualified. Seselj has asked for the case to be thrown out and complains that the delays have amounted to an “unbelievable torture.” The court disagrees and will allow time for the replacement judge to assess witness testimony via video recordings before entering the deliberation phase. (IWPR).
Court/Tribunal: International Criminal Tribunal for Rwanda
Decision Title: Decision on Bernard Munyagishari’s Third and Fourth Motions for Admission of Additional Evidence and on the Appeals Against the Decision on Referral Under Rule 11 bis
Chamber: Appeals Chamber
Case Name: Bernard Munyagishari v. The Prosecutor
Date: 3 May 2013
- Both Defendant Munyagihari and the Prosecution appealed the Referral Chamber’s decision transferring, with conditions, his case from the ICTR to the national Rwandan courts. The defendant first asked the Appeals Chamber to consider additional evidence, which it rejected. The defense the presented ten grounds upon which it argued that the Referral Court erred when reaching the decision to transfer the case. The Appeals Chamber dismissed all but one, according to which the Appeals Chamber required that the Prosecution amend the Indictment to reflect that the national proceedings will not pursue joint criminal enterprise as a mode of liability. The Prosecution argued against two of the four conditions that the Referral Chamber had ordered to the national proceedings; the Appeals Chamber struck the conditions.
Principles found in decision:
- Even if proposed additional evidence meets the requirements under Rule 115 for admission after-the-fact, if the additional evidence would not have been dispositive in the original decision, the Appeals Court will not consider the evidence
- An Indictment against a defendant must completely and accurately reflect the charges against the defendant, so as to effectuate his right to be so informed. If the mode of liability is changed in a transfer case, this change must be reflected in an amended indictment
- The U.N. Security Council Resolutions regarding the ICTR do not require retention of high-level cases at the Tribunal
- In arguing that national proceedings will not adequately maintain international standards for the defendant’s detention, the defendant must show case-specific evidence of inadequate conditions for his transfer case. He cannot rely upon general evidence about the national prison system as a whole
- Ensuring a defendant’s rights to counsel does not require that an attorney appointed to represent an indigent defendant in a case transferred to a national court have previous international experience in order to ensure
- If a referring court requires third-party monitoring of cases transferred to national courts to ensure a fair trial, the monitoring system need not be established before the case is transferred to the national system
Decision Background: Mr. Munyagihari is indicted before the Tribunal for events stemming out of the Rwandan Genocide of 1992-1994. He is charged with conspiracy to commit genocide, genocide, or alternatively complicity in genocide, murder and rape as crimes against humanity. On 6 June 2012, the Tribunal’s Referral Chamber issued the Impugned Decision, in which it ordered the case referred for trial before the High Court of Rwanda. The referral of the case to a domestic court was subject to the domestic court’s ability to meet four conditions set out by the Referral Chamber.
In June 2010, both the defense and the prosecution filed notices of appeal against the decision to refer the case to a domestic Rwandan court. In November and December of 2012, the defense filed two motions for the consideration of additional evidence on the decision to refer the case to Rwanda, both of which the Appeals Chamber dismissed. The defense filed a third motion for the consideration of additional evidence on 11 February 2013, and filed a fourth motion to consider additional evidence on 4 April 2013. In his third motion, the defendant requested that, pursuant to Rule 115 of the Rules, an article published in the New York Times on 6 February 2013, and a communiqué published on 7 February 2013, regarding an alleged absence of a system to monitor any tribunal undertaken in Rwanda. In his fourth motion, the defendant requests that the Tribunal consider a report published on 25 March 2013 by Amnesty International, allegedly revealing serious deficiencies with the Rwandan judicial system and his ability to receive a fair trial in a national proceeding.
The defendant challenged the decision to refer his case to domestic Rwandan proceedings. He advanced ten grounds upon which he contested the decision.
The Prosecution also appealed the Impugned Decision, challenging in one ground of appeal the Referral Chamber’s subjection of the national proceedings to two conditions.
Third and Fourth Motions for Consideration of Additional Evidence—
The Appeals Chamber first considered the defense’s third and fourth motions to hear additional evidence on the referral of the case to domestic Rwandan courts. The Appeals Chamber noted that under Rule 115, a motion to hear additional evidence shall not be filed more than 30 days from the filing of the reply brief unless there is a showing of good cause for delay, and that this limit applies to appeals from referral decisions; the Chamber noted that the defendant filed his motions outside of the allotted time frame. However, because the articles of additional evidence were not published in their original source until after the 30-day window, and were thus not available during the allotted time frame, the Appeals Chamber found good cause for delay, and stated it would consider the evidence.
Rule 115 allows for the admission of additional evidence on appeal when a party has possession of material that was not presented at trial, and that represents evidence on a question of fact that was at issue during trial. In order to be considered on appeal, the evidence must not have been available at trial in any form, and must not have been discoverable in any form through the exercise of due diligence. The additional evidence must be relevant and credible. If the evidence is relevant and credible, but was available during referral proceedings, the Appeals Chamber may allow it if the moving party can establish that its exclusion would constitute a miscarriage of justice.
The Appeals Chamber found that the additional evidence presented in the Third Motion met all of the admission requirements under Rule 115. The Chamber, however, found that the additional evidence would not have been a decisive factor in the Impugned Decision. The Appeals Chamber found that the hearings on referral adduced satisfactory evidence of Rwanda’s willingness to hold the trial, and found concerns allegedly raised by the evidence in the Third Motion are speculative. As such, the Appeals Chamber found that the evidence in the Third Motion could have had any impact on the Referral Chamber’s decision to refer the case to Rwanda.
The Appeals Chamber found that the Amnesty International report requested in the Fourth Motion met all of the Rule 115 requirements for admission. However, the Appeals Chamber found that the evidence would not have been a decisive factor in the decision to refer the case to Rwanda. The Amnesty report concerned issues and problems that occurred in another defendant’s trial, and that the present defendant’s trial would be protected under Rwandan law by additional assurances and protections afforded to cases referred by the Tribunal; the former case did not have these protections. Thus, the Chamber found that the differences between the two cases were significant such that the Amnesty report could not have had an impact on the referral decision.
Pursuant to the above, the Appeals Chamber dismissed the defendant’s third and fourth motions to consider additional evidence.
Defense Challenge to the Impugned Decision—
The defendant challenged the decision to refer the case to the domestic Rwandan court system. He advanced ten grounds upon which he contested the Referral Chamber’s decision. Under Rule 11, the Tribunal may refer a case to national proceedings, upon findings that the defendant will receive a fair trial, and that the defendant will not be subjected to the death penalty.
The Referral Chamber holds the discretion to refer a case to national proceedings, and the Appeals Chamber will only interfere if the Referral Chamber’s decision was based on discernible error.
GROUND 1: The Prosecution declared that if the case were referred to Rwanda, it would no longer pursue joint criminal enterprise against the defendant as a mode of liability. The Referral Chamber found that it was not necessary to amend the Indictment against the defendant based upon this concession, finding that the defendant’s rights would not be prejudiced. The defendant argued that the Referral Chamber erred in failing to order the Prosecution to amend the Indictment to reflect the change in mode of liability.
- The Appeals Chamber found that failing to amend the indictment would subject the defendant to an indictment that did not clearly and accurately inform him of the charges he faces. The Appeals Chamber found that the Referral Chamber erred in not requiring amendment of the Indictment to give effect to the concession that joint criminal enterprise liability would not be pursued at the national level. The Appeals Chamber ordered the Prosecution to amend the Indictment to reflect its concession as to joint criminal enterprise liability.
GROUND 2: Noting that U.N. Security Council Resolutions referring the situation in Rwanda to the International Tribunals contemplated transferring the cases of intermediate and lower-ranked Rwandan officials to national courts, rather than the transfer of cases involving senior official, the defendant argued that the Referral Chamber erred in finding that his case could be transferred to Rwandan courts.
- The Appeals Chamber found that the Referral Chamber was bound by Rule 11 bis of the Rules when making its decision whether to refer the case, which did not require the consideration of the defendant’s level of responsibility
- The Appeals Chamber further found that the U.N. Resolutions left the implementation strategy for the Rwandan Tribunals to the discretion of the Tribunal. The U.N. Resolutions did not require the referral of only lower-level defendants to national courts. The Referral Chamber did not err in finding that it could refer the case to Rwanda
- The Appeals Chamber dismissed the defendant’s second ground of appeal
GROUND 3: The defendant argued that the Referral Chamber erred in finding that transferring the case to Rwanda would not lead to undue delay of the trial. The defendant noted four specific conditions which it contended that the Chamber did not adequately assess.
- The Appeals Chamber noted that the Referral Chamber addressed and rejected the defendant’s arguments regarding the four factor’s impact on undue delay, and that he could not use an appeal to relitigate the issues
- Regarding any error of the Referral Chamber to fail to consider the cumulative effects of the factors, the Appeals Chamber found that the consideration of the four factors cumulatively would not have changed the decision
- The Appeals Chamber rejected the third ground of appeal
GROUND 4: The defendant argued that the Referral Chamber erred in failing to establish that a presumption of innocence against the defendant would in fact be maintained during the national proceedings.
- The Appeals Chamber found that, when read in its entire context, the Impugned Decision indicates that the Referral Chamber adequately considered whether the defendant’s right to presumed innocence would be respected in practice in national proceedings
- The Appeals Chamber dismissed the fourth ground of appeal
GROUND 5: The defendant argued that he had previously been convicted in absentia through proceedings in Rwanda, and that therefore the referral of his case to Rwanda would violate Nin bis in idem. The Referral Chamber had found that the previous Rwanda judgment against the defendant was vacated by the Court of Appeals, and thus proceedings in Rwanda would not violate double jeopardy. The defendant noted that subsequent confusion around the disposition of that case (whether he had been convicted or acquitted) meant that the Chamber could not definitively find that a conviction had been nullified, and thus whether national proceedings would violate double jeopardy.
- The Appeals Chamber noted that evidence as to the previous Rwandan judgment does not establish whether the defendant was acquitted or convicted in that case. Thus, the Referral Chamber erred in basing its decision on the double jeopardy question on a finding that the defendant’s conviction had been vacated.
- The Appeals Chamber found, however, that the national Court of Appeals had vacated the judgment in that case, regardless of which finding on guilt was reached. Therefore, the Referral Chamber did not err in finding that national proceedings would not violate double jeopardy
- The Appeals Chamber dismissed ground five
GROUND SIX: The defendant argued that the Referral Chamber erred in finding that conditions of detention in Rwanda would meet international standards of detention, in light of evidence that allegedly showed that prison conditions in Rwanda do not meet international standards.
- The Appeals Chamber found that the Impugned Decision properly considered the legal framework in Rwanda, and its implications for meeting international standards of detention
- The Appeals Chamber found that the evidence presented, purporting to show the poor running of the Rwandan prison system, was irrelevant in that it concerned the total national prison system, and not the separate facilities for cases referred from the Tribunal
- The Appeals Chamber dismissed ground six
GROUND 7: The defendant argued that the Referral Chamber erred in finding that he would, in practice, have access to defense witnesses under the same conditions as those testifying for the prosecution.
- The Appeals Chamber found that the Referral Chamber sufficiently considered the defendant’s access to witnesses. Its considerations went beyond the legal framework in Rwanda, and examined in length factors implicating the defendant’s ability to access witnesses
- The Appeals Chamber found that the defendant failed to show that the Referral Chamber erred in its findings underlying its decision
- The Appeals Chamber dismissed ground seven
GROUND 8: The defendant argued that the Referral Chamber erred in finding that his right to an effective defense would be maintained in Rwanda. He argued that the Referral Chamber failed to ensure that Rwanda would be able to provide sufficient funds to defense counsel to carry out necessary work.
- The Appeals Chamber found that the Referral Chamber did not err in considering all of the relevant Rwandan law regarding the right of an indigent defendant to have effective assistance of counsel
- The Appeals Chamber noted that should adequate funding not be provided, the case is subject to revocation from Rwandan proceedings
- The Appeals Chamber dismissed ground eight
GROUND 9: The Referral Chamber held that it would be in the best interests of justice if the Rwandan proceedings were subject to some form of outside monitoring. The defendant argued that the Referral Chamber erred in allowing transfer of his case before an independent monitoring system in Rwanda has been established.
- The Appeals Chamber found that the defendant had not established how the fact that he has yet to be informed of which organization will monitor the national proceedings substantive affects his rights
- The Appeals Chamber found that the defendant failed to establish how his transfer to Rwanda before the actual appointment of monitors would substantively affect his rights or deprive him of the monitoring protections implemented by the Referral Chamber. The Appeals Chamber also noted that national proceedings are subject to revocation if monitors are not appointed
- The Appeals Chamber dismissed ground nine
GROUND 10: The defendant argued that the Referral Chamber directly interfered with proceedings of the national trial when it imposed conditions on any national proceedings. The defendant argued that the Referral Chamber does not have the power to directly interfere with national proceedings, and thus exceeded its jurisdiction. Further, the defendant argued that the fact that the Referral Chamber found it necessary to impose additional conditions on the national proceeding, meant that the national proceedings would not sufficiently guarantee his rights to a fair trial. As such, the defendant argued that the Referral Chamber erred in allowing the transfer.
- The Appeals Chamber found that while a referral chamber may add additional considerations on to a transfer case in order to ensure that a defendant will receive a fair national trial, it must be satisfied that the basic national proceedings will afford the defendant rights comparable to Article 20 of the Statute. Thus, in allowing the transfer, the Referral Chamber found that at base, the national proceedings would afford the defendant adequate rights
- The Appeals Chamber also noted that the conditions imposed upon the national proceedings are not mandatory: the Rwandan legal system may decline to accept the referred case if it does not wish to comply with the imposed conditions. Thus, the Referral Decision does not mandate any course of action from the national system, nor interfere with the independent and discretionary decisions of the national system. The Appeals Chamber found that the Referral Chamber has not exceeded its jurisdiction.
- The Appeals Chamber dismissed ground ten
The Prosecution appealed two of the four conditions upon which the Referral Chamber rested the transfer of the case to national courts. The first condition challenged was that Rwanda provide the defendant with a lawyer with previous international experience. The second condition was that the Rwandan authorities provide the Tribunal with a written assurance that Articles 54 and 55 of the Code of Criminal Procedure would not be used during the trial. The Prosecution argued that while a referral chamber may impose conditions on the transfer of cases to national courts, its discretion to do so was not unlimited, and the conditions must be limited to that which is necessary to ensure a fair national trial. The Prosecution argued that these conditions were not necessary to afford the defendant a fair trial, and as such constituted abuse of discretion. Further, the Prosecution argued that the referral chamber may not interfere too far on the sovereign conduct of the national court system, and argued that the two imposed conditions reached beyond the referral chamber’s authority to impose conditions on sovereign systems.
The Appeals Chamber found that there is no requirement at the Tribunal, or in any relevant international legal instrument, that an appointed attorney have prior relevant international experience. The Appeals Chamber found that if Rwanda appoints a national attorney who has all of the relevant national qualifications and licenses, the attorney provides the defendant adequate representation of counsel. Thus, it found that the Referral Chamber erred in requiring the first condition. The Appeals Chamber set aside the first condition.
The Appeals Chamber found that in regards to the second challenged condition, the Referral Chamber was concerned that the functioning of domestic Rwandan criminal procedure could potentially open defense witnesses to prosecution for acts testified to during the trial of a referred case. This could thus impact the defense’s ability to access witnesses for his case. The condition was meant to allay witness fears of prosecution, in order to increase defense access. The Appeals Chamber found, however, that following amendments to transfer laws in 2009, and improvements in witness protection, adequate safeguards are in place to address witness concerns and increase the likelihood of their appearance. As such, the Appeals Chamber found that the condition was not necessary to ensure a fair trial, that the concerns it addressed were speculative, and thus the Referral Chamber erred in requiring it. The Appeals Chamber set aside the second condition.
To access the full Decision, click here.
ICC dismisses Prosecution appeal on decision to adjourn Gbagbo confirmation hearing: On 16 December 2013, the ICC Appeals Chamber dismissed an appeal lodged by the Prosecution against a decision by the Pre-Trial Chamber on 3 June 2013 which adjourned the confirmation hearing of former Ivory Coast President Laurent Gbagbo and requested the Prosecution submit additional evidence on specific incidents relating to the charges against Gbagbo. The Appeals Chamber found that the Prosecution had failed to show that the Pre-Trial Chamber committed an error when treating 45 incidents relied on by the Prosecution as an Article 7 attack against a civilian population.
ICC rejects Prosecution appeal on amending temporal scope of Ruto, Sang charges: On 13 December 2013, the ICC Appeals Chamber dismissed the appeal of the Prosecution in the case against William Ruto and Joshua arap Sang which contested the Pre-Trial Chamber’s decision not allowing the Prosecution to amend the temporal scope of the charges against the two accused. The Appeals Chamber found that once the charges against an accused are confirmed it is no longer possible to amend or add charges. The Appeals Chamber confirmed that once the confirmation of charges is completed the only change that can be made to the charges is a recharacterisation of the facts while not exceeding the facts and circumstances of those described in the charges confirmed by the Pre-Trial Chamber.
Libya to allow US and UK authorities question ICC indicted Al-Senussi: Libya Justice Minister Salah Merghani has stated that Libya will allow authorities from the UK and US travel to Libya and question former Gaddafi Spy Chief Abdullah Al-Senussi over the 1988 bombing of a PanAm flight over Lockerbie Scotland. When asked if Al-Senussi, who is indicted for crimes against humanity before the ICC, would be questioned, Merghani is quoted as saying “Yes this is the intention … What we are working on is finalizing the arrangements for this as much as obtaining the evidence that’s available with the UK and US authorities … We all need to know the facts.”
ICTY Seselj case continues after Judge Harhoff’s disqualification: On 13 December 2013, the Trial Chamber of the ICTY decided that the trial against Vojislav Seselj would continue following the election of Judge Mandiaye Niang to the bench. Judge Niang was elected to the Trial Chamber after Judge Harhoff was disqualified on Seselj’s request. The Trial Chamber noted that Judge Niang is capable of assessing the credibility of witnesses while becoming familiar with the case.
ECCC Prosecution issues list of potential witnesses: On 17 December 2013 it was reported that Prosecutors on the ECCC case against Nuon Chea and Khieu Samphan issued a confidential listed of 96 witnesses who will give evidence about Khamer Rouge detention facilities and work sites. Witnesses are reported to include “Cambodian citizens, journalists, civil servants, military personnel, local authorities and monks” as well as seven experts and Kaing Kek leve (“Duch”) who was convicted by the ECCC and sentenced to life for crimes committed in Tuol Sleng prison.
UN Commission to be established for CAR crimes: On 16 December 2013, UN Secretary General Ban Ki-moon stated that the United Nations will establish a commission which will investigate crimes committed in the Central African Republic; which Ban Ki-moon as said “descended into chaos” this year after the Government was overthrown in March. Ban Ki-moon is quoted as saying he is “gravely concerned about the imminent danger of mass atrocities.” Bi Ki-moon said that the presence of humanitarian efforts, including African and French troops, and human rights monitors has improved the situation, but that “we must do more to meet this test of global solidarity.”
Ireland in discussions with ICC on witness relocation program: On 16 December 2013, Fatou Bensouda stated that the Government of Ireland is in negotiations with the ICC in order to establish a program which would relocate witnesses to Ireland after their testimony before the ICC. Speaking from Dublin, the Prosecutor stated that “Protection of witnesses is one of the court’s main priorities and in this regard the conclusion of witness relocation agreements with the court is a practical way through which [states] can help the court meet this challenge.”
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).