Archive for category Witnesses
Ruto and Sang appear in ICC status conference: On Tuesday 14 May 2013, ICC accused William Ruto and Joshua arap Sang appeared before the ICC Trial Chamber during a status conference to discuss the commencement of trial, appearance during trial and witness issues. William Ruto asked judges to waive his right of appearance and allow the Deputy President to appear once during the most important hearings. Making a short statement to the Court, Ruto emphasized his commitment to cooperate with the Court while stating “I am aware that my responsibility to the court as an individual must be balanced by my constitutional responsibility as Deputy President.” During the same status conference, Sang objected to an application by the Prosecution to recall two witnesses and add three new witnesses to the witness list. Sang also responded to the Prosecution’s proposal to limit the testimony of an investigator who is to be called before the Court to answer questions on issues concerning Prosecution witnesses. Both Ruto and Sang asked that the new trial date be set for November 2013 in order to allow the Defence to properly review Prosecution disclosure which the Defence says has been submitted late to the Defence. (For additional information on this topic, please click here).
Arrest of former Chadian police chief Djibrine welcomed: Campaigners and human rights groups in Chad have welcomed the arrest of the former head of the Directorate of Documentation and Security in Chad; former President Hissene Habre’s political police force during the 1980s. Djibrine is accused of the torture and killing of opposition activists in the 1980s, and was arrested based on a lawsuit filed by 13 Chadian individuals who suffered abuse under the leadership of Habre. It is unknown whether Djibrine will be tried domestically in Chad or in Senegal before the special tribunal created in conjunction with the African Union to try Habre.
ICC Prosecutor denies witness allegations and pressures Kenya’s cooperation: ICC Prosecutor Fatou Bensouda has denied allegations that witnesses have given the Court false information following the recent withdrawal of witness testimony by several witnesses who gave information against President Uhuru Kenyatta and Deputy President William Ruto. Bensouda stated that she is “not aware of any witness that has given false information to the ICC.” This week Bensouda also stated while in Geneva that the ICC maintains expectations that Kenya will cooperate with the prosecution on the cases. Bensouda stated “I have been very clear all the time about this matter. I have stated that what we want is the full and unwavering cooperation of the Kenyan Government. In the event that this doesn’t happen, we will have no option but to bring the matter to the attention of the Chamber for direction.” (For additional information on this topic, please click here).
HRW urges India to protect witness before ICT of Bangladesh: HRW has urged the Government of India to protect Bangladeshi national, Shukhoranjan Bali, who is said to be a key defence witness to the ICT of Bangladesh and was reported missing just before he was due to give testimony before the Tribunal. HRW alleged that Bali was abducted and forced to enter India where he was arrested for entering the country illegally. HRW stated “The apparent abduction of a witness in a trial at the ICT is a cause for serious concern about the conduct of the prosecution, judges and government.” Bali claims he was abducted while at the courthouse by police and held in the custody of the Bangladeshi authorities for several weeks before being forced to enter India. Bali has completed his 110 day sentence for entering India illegally but continues to be held in detention. HRW asked that Bali not be returned to Bangladesh before a possible claim for asylum can be heard by the United Nations High Commissioner for Refugees.
Argentinian convicted of CAH dies in prison: It is reported that Argentina’s former military leader Jorge Rafael Videla has died of natural causes in an Argentinian prison. Videla, 87, was serving a life since 2010 for the crimes against humanity related to his responsibility for the death of 31 individuals during Argentinian’s military rule from 1976 to 1983. The period from 1976 to 1983 is known for the regime’s “dirty war” which resulted in the torture and killing of over 30,000 people. In 1985 Videla was sentence to life in prison for murder, torture and other crimes but was pardoned due to an amnesty in 1990. In 2010 Argentina’s Supreme Court reinstated his life sentence by upholding a 2007 federal initiate which overturned Videla’s pardon.
Court/Tribunal: International Criminal Court
Decision Title: Decision on defense application pursuant to Article 64(4) and related requests
Chamber: Trial Chamber V
Case Name: The Prosecutor v. Uhuru Muigai Kenyatta
Date: 26 April 2013
Decision Background: On 23 January 2012, the Pre-Trial Chamber II for the Court confirmed charges of crimes against humanity against Uhuru Kenyatta. On 9 July 2012, the Trial Chamber set the trial commencement date at 11 April 2013. On 5 February 2013, the defense for Mr. Kenyatta filed an application with the Chamber, challenging the validity of the confirmation of the charges against Kenyatta, and asked that the confirmation decision be referred back to the Pre-Trial Chamber for reconsideration. On 20 February 2013, the defense again submitted a request to the court, asking that the 11 April trial date be vacated. At a status hearing on 7 March 2013, in response to several claims raised by the defense, the court vacated the 11 April trial date, and provisionally re-set the date for trial at 9 July 2013. On 11 March 2013, the Prosecution announced that it was withdrawing charges against Francis Kirimi Muthaura, who had been charged as a co-conspirator with Kenyatta.
Pursuant to the latest developments regarding the dismissal of the charges against Muthaura, on 28 March 2013, Kenyatta petitioned the court, asking that the Chamber terminate the proceedings against him, stay the proceedings, or remit the case back to the Pre-trial Chamber for reconsideration, pursuant to Article 64(4) of the Statute.
The Kenyatta defense advanced four grounds upon which he petitioned for the requested relief.
The defense first argued that the Prosecution committed grave error, and potentially acted in bad faith, when it neglected to disclose to the defense potentially exculpatory information. Namely, the defense pointed to the recant of Witness 4’s testimony, which had been used as evidence in the confirmation hearing. Witness 4 withdrew testimony regarding his presence at a meeting in 2007, at which he testified that Kenyatta had been in attendance. This meeting was important to the Prosecution case, as they argued that part of the conspiracy or plan to engage in post-election violence had been formulated at this meeting. The recantation of this testimony, however, was not disclosed to the defense until after the confirmation hearing. Likewise, the Prosecution failed to notice the inconsistencies in the testimony until late in the proceedings.
The defense argued that the non-disclosure constituted a serious “clear and systematic failure” by the Prosecution’s investigation, that fundamentally called into question the credibility and strength of the evidence used to confirm the charges against Kenyatta. The defense noted that the Pre-trial Chamber, in confirming the charges, relied heavily upon Witness 4’s testimony. The defense argued that the defects in the Prosecution’s investigatory practices and failure to turn over the relevant material to the defense, will have far-reaching and negative effects on the proceedings against Kenyatta and on the credibility of the court generally.
The second issue also related to the problems with Witness 4’s testimony. Namely, the defense pointed to the inconsistencies given by Witness 4, who first testified to the 2007 meeting, then recanted his testimony. The defense argues that the evidence given by Witness 4 was thus not substantial enough to hold up at the confirmation hearing, and that without the evidence of Witness 4’s testimony, the evidence against Kenyatta was insufficient such that the Pre-trial Chamber would not have confirmed the charges against him.
For the third alleged defect in the Prosecution’s case, the defense took issue with the Prosecution’s “protracted” investigation. Namely the defense argued that the even after the confirmation hearing, the Prosecution continued to engage in significant investigatory action, which resulted in the nature of the case against Kenyatta “fundamentally changing,” and thus leaving the defense with inadequate time to prepare in response to the Prosecution’s “shifting” case. The defense argued that the Prosecution had ample time to collect evidence and engage in investigation before the confirmation hearing, and the fact that it did not so do “with reasonable diligence” undermines the confirmation process. The defense argued that the Prosecution’s failures in this area violated the defendant’s rights under Article 67(2) of the Statute, and failed to comply with Court jurisprudence on the Prosecution’s investigative duties.
Finally, the defense argued that the dismissal of charges against Muthaura fundamentally changes or calls into question the case against Kenyatta. Namely, the defense argues that the dismissal of charges against Muthaura acts as an admission by the Prosecution of insufficient evidence of wrongdoing by Muthaura. Since Muthaura and Kenyatta were initially charged as co-conspirators to the same crimes, the admittance of insufficient evidence in Muthaura’s case necessarily also reveals an insufficiency of evidence to sustain the charges against Kenyatta, who was said to have acted in concert with Muthaura. In support of this argument, the defense again highlighted the problems with Witness 4’s testimony in establishing the factuality of the meeting at which the common plan was said to have formed.
In addition to the reliefs requested in the 28 March application to the court, the defense also asked in its most recent 64(4) Application that the Prosecution be reprimanded for its non-disclosure of Witness 4’s affidavit, in which the recantation was present, to the defense until significantly after the confirmation hearing. Although the Chamber reprimanded the defense for failing to formally list reprimand as a relief in its document, given the seriousness of the Prosecution’s alleged misconduct, the Chamber noted that it will entertain the arguments relating to reprimand.
Decision Review: The Chamber first reviewed the defense’s request for termination or an unconditional “stay” of the proceedings against him, in light of the issues raised. The Chamber first noted that, however the relief was characterized, it would result in a permanent cessation of the case against Kenyatta. As such, the Chamber decided to address termination or “unconditional stay” as one and the same.
A termination is usually argued for when the defense believes that for various reasons, a fair trial for the accused is impossible, at the present time or any time in the future. While the Chamber stated that the defense failed to specifically lay out the reasons for this relief (why the proceedings would be unfair), it gathered that it was based on the defense’s arguments of insufficient evidence. The Chamber noted that under Article 85(3), it has the power to terminate or stay proceedings where continuing with the case would cause a “grave and manifest miscarriage of justice” due to serious violations of the accused’s rights. Likewise, a Chamber need not find that the Prosecution acted in bad faith, only that the effects of certain actions violate the defense’s rights to such an extent that the essential conditions for a fair trial are permanently absent.
On the other hand, the Chamber noted that a conditional, rather than permanent, stay of proceedings is also an option, and most appropriate in situations where current defects to the defense’s rights exist, but may be remedied in the future. The court noted that not every violation of a defendant’s rights warrant a permanent stay or termination of the case: termination is an exceptional remedy of last resort, and often less severe remedies are sufficiently available to counteract the unfairness to a defendant, without cancelling the entire case.
The Chamber found that the Prosecution’s conduct in failing to disclose the information regarding Witness 4’s testimony to the defense until much after the confirmation hearing, created a “cause for serious concern,” and implicated both the integrity of the court proceedings, and Kenyatta’s rights as a defendant. However, the Chamber found that the problems caused by the Prosecution’s failures could be remedied at trial. Namely, the Prosecution would no longer be calling Witness 4, and the defense, in making its case, would be free to challenge the credibility and strength of the Prosecution’s evidence, particularly in light of the lack of Witness 4’s testimony. Furthermore, the Chamber did not find evidence of deliberate bad faith on the Prosecution’s part. The Chamber thus found that a stay or termination of proceedings, in this instance, would be disproportionate to the harm done, especially in light of the opportunities the defense will have to address the problems with the Prosecution’s case at trial.
Regarding the defense’s request to have the case referred back to the Pre-trial Chamber, the court noted that the Statute gives the Pre-trial Chamber jurisdiction over “preliminary issues” in a case. To refer an issue back to the Pre-trial Chamber, the Trial Chamber must be satisfied that the issue is a preliminary issue, and that referral is “necessary” for the “effective and fair functioning” of the Chamber. The validity of the confirmation hearing as a “preliminary issue” was not contested by the parties. The Chamber thus had to consider whether referral was necessary for the fair functioning of the trial, which necessitated looking at the merit’s of the defense’s arguments. The Chamber noted, however, that it would not go beyond a prima facie analysis of the defense’s claims. It will only refer the issue back to the Pre-trial Chamber if it is clearly self-evident that no reasonable Pre-trial Chamber could have come to the same conclusion it originally did, in light of the new or changed evidence.
The Chamber found that it is not necessary to remand the case back to the Pre-trial Chamber. The Trial Chamber found that issues with the case came to a head while the case was under the Trial Chamber’s competence; as such, the Trial Chamber found that it would be competent to review and resolve any issues with the proceedings. The Chamber found, however, that it is not within its competence to reconsider the evidence presented at the confirmation hearing, and redo the credibility assessments made by the Pre-trial Chamber. The Chamber reprimanded the defense for essentially attempting to use the Chamber, through a referral to the Pre-trial Chamber, as a defacto appeals court, to appeal the confirmation hearing decision, which it had previously attempted to do through the regular channels, and had failed. The Chamber did not agree with the defense that the issues with Witness 4 materially impacted the confirmation hearings.
In regards to the defense’ request for a reprimand, the Chamber noted that while not explicitly granted to it in the Statute, the Chamber does generally retain the right to issue a reprimand and a warning to the Prosecution for a failure to identify and disclose potentially exculpatory information, or information that affects the credibility of the Prosecution’s evidence. The Chamber also noted that the disclosure of potentially exculpatory information to the defense is a “fundamental aspect of the accused’s right to a fair trial.” The Chamber noted that it is clearly appropriate to issue such reprimands and warnings in cases where the Prosecution has clearly violated these obligations. Likewise, in certain situations, it can also be appropriate for the Chamber to order additional, more stringent sanctions, along with the reprimand.
The Chamber found that the most prudent remedy was a reprimand to the Prosecution. In reaching its decision, the Chamber took particular issue with the amount of evidence that the Prosecution gathered after the confirmation hearing, a point at which the vast majority of the investigation is supposed to be completed. Although the Prosecution is allowed to do some investigating after the hearing, if circumstances prior to the hearing made investigation in a given area difficult or impossible, this exception is not unlimited. The majority of the court found that the Prosecution should have and could have been more thorough in its pre-confirmation-hearing investigation, and the decision spent a significant amount of time chastising the Prosecution for its failure to act with reasonable diligence. The Chamber did, however, acknowledge the special difficulties presented to the Prosecution in conducting its investigation – namely, the unstable security situation in Kenya—and seemed to discount the Prosecution’s failure to act more quickly.
Along with the reprimand, the Chamber ordered the Prosecution to conduct a complete review of its case file, and certify to the court that it had done so, to ensure that no further violations of its disclosure obligations occur. It also ordered the Prosecution to make any necessary changes to its internal review system, as the Chamber found that it was deficiencies in the review system that lead to the oversights and non-disclosure of important information. Finally, due to the marge amount of investigation that the Prosecution engaged in after the confirmation hearing, the Chamber found that an appropriate remedy would be to allow the defense more time to conduct its own investigation and prepare for trial in light of the new evidence that was gathered after the confirmation hearing. While the Chamber typically finds three months as sufficient for additional time to prepare for trial, given the circumstances of the case, the Chamber will consult the defense regarding its needs to prepare for trial, before setting the new date, which tentatively remains at 9 July 2013.
To access the full Decision, click here
Guatemalan Tribunal finds first head of state guilty of genocide: On 10 May 2013, a three judge tribunal in Guatemala found the country’s former military leader Efrain Rios Montt guilty of genocide and crimes against humanity for his responsibility of ordering the killing of 1,771 Ixil Maya people in 1982 and 1983. Rios Montt was sentenced to 50 years for his conviction on genocide charges, and 30 years for the crimes against humanity charges. Though other international crimes tribunals have delivered convictions on the crime of genocide, Rios Montt is the first former head of state to be convicted of genocide. Mauricio Rodriguez Sanchez, Rios Montt’s former military intelligence chief who was tried with Rios Montt, was acquitted of the charges against him. Rios Montt is said to have been in power during the most violence phase of Guatemala’s civil war which lasted from 1960 to 1996.
Second witness withdraws testimony against Ruto: It is reported that a second ICC witness has informed the ICC Prosecution of his unwillingness to testify for the Prosecution against Kenya Deputy President William Ruto. In an affidavit sent to the ICC, the witness explained that he was a PNU official who was “induced and enticed” to be a witness when the ICC promised to reward him for his testimony by relocated him to America, Australian or Europe and promising that his standard of living would improve.
Haiti’s Duvalier trial enters preliminary observations proceedings: On 9 May 2013, the President of the Haitian Court of Appeal, Judge Jean Joseph Lebrun, moved the trial against former Haitian leader Jean Claude Duvalier from complaint proceedings into the preliminary observations proceedings. Duvalier is being prosecuted for crimes against humanity and misappropriation of public funds. The trial has heard complaints from victims and family members of victims who were tortured and abused in detention under Duvalier’s regime. The preliminary observations phase is set to begin 16 May 2013.
Chad agrees to allow investigations in Chad for Habre trial: On 9 May 2013, Chad’s Justice Minister Jean-Bernard Badare signed an agreement with Senegal’s Justice Minister Aminate Toure which will allow investigations in Chad to be used in the prosecution of former Chadian leader Hissene Habre trial before the Extraordinary African Chambers in Senegal. The agreement guarantees that judges from the Extraordinary African Chambers are allowed to travel to Chad, speak with witnesses and conduct prison visits.
Posted by iclmediareview in ICC, UN Security Council, Human Rights Violations, Crimes against Humanity, ICT of Bangladesh, Victims, War Crimes, Kenya, Gaddafi, Torture, Investigations, Witnesses, UN Human Rights Council, Fatuo Bensouda, Admissibility / Primacy, News about the Courts, Fair trial/Accused's rights, North Korea on May 9, 2013
Bensouda addresses UNSC on Libya trials as Al-Senussi’s family pleads for access: On 8 May 2013, ICC Prosecutor Fatou Bensouda addressed the UN Security Council on Libya proceedings before the ICC. Bensouda referred to the current cases against Saif Al-Islam Gaddafi and Abdullah Al-Senussi as Libya’s “Nuremberg moment”; stating that “By conducting fair, just, and transparent judicial proceedings for all alleged perpetrators, while also continuing to respect the ICC judicial process, Libya can set a lasting example for other States.” Bensouda also told the Security Council that the ICC Prosecutor’s Office is conducting on-going investigation into other crimes in Libya and against other Gaddafi officials who are outside of Libya. Bensouda said that her office would decide whether to lodge a new case in the “near future.” Bensouda highlighted Libya’s close cooperation with the Prosecution by citing to a recent visit to the ICC by Libya’s new Prosecutor General and Libya’s ICC focal point, and noting that she will be travelling to Libya soon. Bensouda’s address was followed on 9 May 2013, by a statement from the family of Abdullah Al-Senussi which urged Libya to allow Al-Senussi access to his lawyers and family. The statement emphasised that Al-Senussi has not been granted any access to legal representation during his detention and likened his detention to “passive torture.” (For additional information on this topic, please 1. click here, and 2. click here).
Kenya’s UN representatives ask for ICC trials to be terminated: On 2 May 2013 Kenyan Permanent Representative to the UN Macharia Kamau wrote UNSC President Menan Kodjo a confidential letter which asked the UN Security Council to terminate the cases against Uhuru Kenyatta, William Ruto and Josua arap Sang. Kamau asked that his petition be presented to ICC Prosecutor Fatou Besounda during her visit to the UN Security Council this week. The letter is reported to say: “What this delegation is asking for is not deferral. What this delegation is asking for is the immediate termination of the case at the Hague without much further ado.” Kamau’s letter is followed by a statement to the UN General Assembly last month by Kenya’s deputy Permanent representative Koki Muli Grignon who questioned the Court’s performance. In response to the letter, lawyers for accused William Ruto distanced Ruto from the plea, saying that “I have spoken to my client, His Excellency the Deputy President of the Republic of Kenya, Mr William Ruto, and I can confirm and he has made clear that he was not consulted on anything to do with New York. A letter being circulated is not government policy … His Excellency the Deputy President believes in the rule of law and he believes in Kenya observing its international obligations.” Bensouda dismissed the letter stating that: “The letter referred to by the Permanent Representative of Rwanda has not been transmitted to us. We therefore reserve our right to respond to it in detail in due course and we hope that will be given that opportunity once it has been transmitted to us.” (For additional information on this topic, please click here).
ICT of Bangladesh sentences Kamaruzzaman to death: On Thursday 9 May 2013, the ICT of Bangladesh handed down its fourth death sentence. In a packed courtroom in Dhaka, Muhammad Kamaruzzaman was convicted of five counts of mass killings, rape, torture and kidnapping and sentenced to death. Kamaruzzaman’s charges related to the death of at least 183 persons in Sherpur in northern Bangladesh during the 1971 independence war. As the fourth death sentence to be handed down since January, it is feared that today’s verdict will prompt another wave of violence in Bangladesh. Defence lawyer Ehsan Siddiky said that his client would pursue an appeal in what he claimed was a politically motivated trial. Kamaruzzaman will have one month to lodge his appeal.
Charges against Kenyatta amended: The ICC Prosecution has filed a new document containing charges (DCC) and pre-trial brief in the case against Kenyan President Uhuru Kenyatta which add charges of gun killings in Naivasha and Nakuru. In March 2013, the ICC Pre-Trial Chamber granted the Prosecution the opportunity to amend the charges to include gunshot crimes. The charges now allege that the Mungiki and PNU youth were deployed to areas near Nakuru where guns, machetes, knives, broken bottles and petrol bombs were used to kill and mutilate victims.
UN HR Council names North Korea crimes probe team: The UN Human Rights Council has named a three member team to investigate alleged abuses in North Korea. Following a mandate set by the UN Human Rights Council during its March session, the Council named former Australian judge Michael Kirby, Serbian human rights campaigner Sonja Biserko and an Indonesian Marzuki Darusman who has been monitoring abuses in North Korea for the UN HR Council since 2010. The team has been mandated to investigate “systematic, widespread and grave violations” and ensure “full accountability, in particular for violations which may amount to crimes against humanity.”
Guatemalan CAH trial enters into closing arguments: The trial against José Efraín Ríos Montt and José Mauricio Rodriguez Sanchez has entered its 26th session and proceeded to closing arguments after beginning in March and hearing the testimony of 90 Ixil Maya victims. The trial has heard testimony from victims who have recounted evidence of rape, assassination, torture, and infanticide relating to the charges. Since beginning proceedings, the trial has had several delays at the defence’s request.
Chad allows investigation into alleged war crimes: On 4 May 2013, it was announced Senegal and Chad have signed an agreement allowing Senegal to carry out an investigation into alleged war crimes committed by former Chadian dictator Hissene Habre in the 1980s. Habre was in power from 1982 until a 1990 military coup. He is accused being responsible for more than 40,000 political killings, torture and other human rights violations. The former dictator has been living under house arrest in Dakar, Senegal, since 1994.
(For additional information on this topic, please click here)
Bemba trial stalls: On 3 May 2013, it was announced once again that the Jean-Pierre Bemba trial at the ICC has stalled, as the defense continues to experience difficulties in getting witnesses to appear before the court. The latest witness failed to appear by video link did as a result of a fear for his security in the country he was based. An ex parte status conference to be attended by the defense, the Registry and the VWU has been scheduled to hear further discussions on the scheduling and the appearance of witnesses.
Kenyatta plans official visit to London: On 5 May 2013, it was confirmed that Kenyan President Uhuru Kenyatta will be making a three-day official visit to London for a conference on Somalia. Kenyatta is currently facing trial in front of the ICC for allegedly participating in crimes against humanity which occurred during the 2007-2008 Kenyan elections. London has a policy of only essential contact with anyone charged by the ICC.
Saif al-Islam appears in court: On 3 May 2013, it was reported that the son of deposed Libyan leader Muammar Gaddafi appeared in court in the town of Zintan last Thursday. Saif al-Islam is wanted by the ICC for war crimes charges but the trial in Zintan relates to a matter of national security according to the armed group in Zintan. The ICC lawyer, Australian Melinda Taylor, was herself detained for three weeks after a meeting in which Saif al-Islam is accused of handing over sensitive papers and information. ICC lawyers are skeptical of whether a fair trial can be achieved and consider likely that if convicted, Saif al-Islam will receive the death penalty.
Kenya truth commission: On 3 May 2013, it was announced that a report investigating violence and human rights abuses in Kenya will recommend prosecutions but will retain its primary focus of truth and healing. The Truth Reconciliation and Justice Commission has looked at past injustices going as far back as 1963. Ahmed Sheikh Farah, a member of the commission, says that the mandate of the commission has been to investigate and appropriate action on human rights abuses, politically motivated violence, assassinations, and corruption and land disputes.
Serbian President Tomislav Nikolic apologizes for Srebrenica crime, falls short of acknowledging genocide: President Nikolic has apologized for crimes Serbs committed during the break-up of Yugolsavia, including the infamous Srebrenica massacre. President Nikolic refused to call the massacre – in which thousands of Bosnian Muslims were killed – genocide, despite the recognition of it as such by UN war crimes prosecutors and previous Serbian leaders. President Nikolic was a senior figure in the Serbian Radical Party, and has been criticized after last year’s election during which he said “there was no genocide in Srebrenica.” The 1995 massacre resulted in the killing of over 8,000 Bosnian Muslims, and is seen as the worst European atrocity to date, post-WWII.
Kenya to ICC: Let us handle the cases: Earlier this week, Kajiado Central MP Joseph Nkaissery told the ICC that Kenya can and should be handling the ICC cases of three Kenyan citizens, including the newly elected President Uhuru Kenyatta. “The ICC should withdraw from handling cases against the three Kenyans because Kenya is not a failed state and can handle its own issues independently,” said Nkaissery. “We have a new constitution that spells out the beginning for the country.” The trials of President Uhuru and his deputy William Ruto for their alleged role in Kenyan election violence are set to begin later this year.
Kenyan President Uhuru Kenyatta discredits two ICC witnesses: President Kenyatta has discredited two of the prosecution’s witnesses in the weeks leading up to his ICC trial. According to Kenyatta, ICC Prosecutor Fatou Bensouda failed to disclose the transcripts of two witnesses to his defense team prior to the confirmation of his charges at the ICC. Kenyatta’s team instead allegedly received the transcripts on 17 April. “Certain passages of the screening transcript are capable of supporting the argument that OTP-11 and OTP-12 [two of the prosecution’s witnesses] fabricated their accounts, and that, following the defense’s refusal to cooperate with their extortion attempt, they colluded in order to devise a story falsely implicating Mr. Kenyatta in the post-election violence,” said counsel for Kenyatta’s defense. Kenyatta asserts that the prosecution’s failure to disclose these transcripts supports his earlier assertion that his case must be referred back to the Pre-Trial Chamber for reconsideration or terminated altogether.
Khmer Rouge prosecutors request declassified US State Department Cables: Prosecutors at the Khmer Rouge tribunal requested 26 declassified cables from the US State Department yesterday in order to add the cables to their case file. The cables – which are now decades old – are said to offer detail regarding Phnom Penh’s fall. The prosecution asserts that the cables will contradict claims that the evacuation of Phnom Penh was carried out in “the interest of the safety and well-being of its citizens.” Defense teams – particularly that of Nuon Chea – assert that the evacuation was necessary to alleviate a crisis situation in the crowded capital city, including shortages of food. The declassified cables were recently released in a searchable format by Wikileaks.
EU lifts Myanmar sanctions: On 22 April 2013, the EU agreed to lift all sanctions against Myanmar except for an arms embargo. The move by the EU may pressure the United States, which suspended most sanctions against Myanmar last year, to permanently lift sanctions. However, Human Rights Watch and other human rights activists have expressed concern over ongoing human rights abuses. An HRW report accuses the Myanmar government of crimes against humanity relating to the “ethnic cleansing” of Muslims last year.
Kenyan Deputy-President William Ruto selects lead counsel for ICC trial: On 23 April 2013, Kenyan Deputy-President William Ruto, whose ICC trial begins next month, selected Kamir Khan to be his lead counsel. Khan successfully represented Kenyan Francis Muthaura, whose charges were recently dropped by the ICC. Ruto also filed an application to waive his right to be present at all trial hearings; Khan argued the Rome Statute does not require a suspect to be present during court proceedings.
ICC President of Assembly of States Parties participates in events in Ethiopia and The Hague: On 19 April 2013, ICC President of the Assembly of States Parties Tiina Intelmann returned to The Hague after a four-day tour through Ethiopia. Upon her return, Intelmann participated in a meeting to assure that top judiciary candidates are appointed to the ICC. In Ethiopia Intelmann met with the Chairperson of the AU Commission to discuss the capabilities of the ICC to address gender based crimes and she meet with representatives of African state parties to the ICC. Intelmann also participated in a seminar focused on the ICC and complementarity; she said the long-term focus of the ICC is to prevent crimes and strengthening the rule of law.
Ntaganda’s trial raises DRC nationality question: On 26 March 2013, Bosco Ntaganda, a DRC warlord currently facing charges before the ICC, addressed the charges against him at the ICC. Ntaganda stated that he was born in Rwanda, but is a Congolese citizen; Ntaganda, however, stated that he prefers to speak in Kinyarwanda, a language connected to ethnic Tutsis and foreign to the DRC. This statement in front of the ICC began a debate in the DRC on what it takes to be “Congolese.” There is some controversy if Ntaganda is considered to be a Rwandan citizen as Rwanda is not a state party to the ICC. The ICC, however, released a statement that Ntaganda confirms he is a DRC citizen and the crimes he is accused of committing were in the DRC, which is a state party—so there is no issue of jurisdiction.
ICC Suspect Saleh Mohammed Jerbo reportedly killed in Darfur: Deputy general commander of the JEM-Bashar faction Saleh Mohammed Jerbo has been killed in a North Darfur battle last week according to the faction. The ICC indicted Jerbo last year for his alleged involvement in the killing of 12 peacekeepers during a raid by 1,000 rebels on a UNAMID compound in Sudan in 2007. Jerbo’s trial was set for 5 May 2014.
Former Commander Chhouk Rin takes the stand at Khmer Rouge tribunal: Former Khmer Rouge Commander Chhouk Rin, 60, took the stand yesterday at the Khmer Rouge tribunal. Judges and prosecutors described him as a hostile witness who was insulting the court and “wast[ing] everyone’s time.” Rin – who is serving time in Prey Sar prison after being convicted of killing 13 Cambodians and 3 foreigners in the mid-nineties – initially refused to cooperate or answer questions on the grounds that his imprisonment had diminished his health to such a degree that he could not undergo questioning. Rin eventually cooperated, and pointed to Nuon Chea as the mastermind behind the Khmer Rouge’s actions.
Thai legal team optimistic that falsified border map will lead to ICJ win: The Thai legal team says that Cambodia’s use of a falsified border map before the International Court of Justice is key evidence that may lead to a verdict in favor of Thailand. Head of the Thai legal team Virachai Plasai said the team first noticed Cambodia’s falsified map in 2011 and have since corrected the map in Thailand’s first written defense. However, he states that Cambodia has used the same map with “colorful adjustments” as recently as March 2012. The dispute between Cambodia and Thailand about the area surrounding the 11th century Preah Vihear Temple in the Dangrek Mountains is a century old, with the latest iteration of the dispute arising in 2008.
Guatemala suspends referendum with Belize over territorial dispute: Guatemala officially suspended the referendum regarding taking their enduring territorial dispute with Belize to the International Court of Justice. Guatemala seeks to recover 4,737 square miles of territory from present-day Belize. The area equals approximately half of Belize’s territory. Foreign minister Fernando Carerra said that “conditions do not exist” for holding the referendum asking the Central American countries’ citizens to approve the submission of the dispute to the ICJ. Carerra cited the Belizean government’s failure to accept Guatemala’s proposal for moving the referendum date forward and modifying Belizean election laws requiring 60% turnout and 51% majority to implement referendum terms.
ICC terminates Mastanga witess investigation: The investigation into allegations that Ugandan peace negotiator David Mastanga tampered with evidence provided by Witness 4 in the Kenyatta trial has been terminated. The probe most recently saw the ICC sending investigators to Kenya to interview Mastanga, who was never actually prosecuted over the claims. When contacted about the Court’s decision, Mastaga said “I want to take this opportunity to thank the office of the prosecutor and especially Fatou Bensouda for the timely decision of terminating all investigations against me.”
Bemba trial briefly postponed: There were no hearings in the Jean-Pierre Bemba trial at the ICC today, as the eighteenth defense witness’ appearance was postponed until Wednesday, April 17. The Court was planning on hearing the testimony remotely, as the defense cited “logistical difficulties” in bring the witness to the Hague, including that the witness does not have a passport or visa. The former vice president of Congo has been on trial since November 2010 for crimes against humanity and war crimes.
Justice minister requests forces to capture Darfur suspects in Sudan: Mohamed Bushara Dousa – Sudan’s justice minister – asked president Omer Hassan Al-Bashir to establish a joint force under the special crimes prosecutor to aid in capturing fugitives. Addressing a legal reform conference in Khartoum, Dousa also mentioned that the special prosecutor has completed investigations of 40 cases referred by the courts.
ICC warns against contacting witnesses: The defense teams of President Kenyatta and deputy William Ruto are prohibited from contacting their witnesses 24 hours prior to their testimony. The ICC directive prohibits the same activity for chief prosecutor Fatou Bensouda. Additionally, once a witness has begun to testify, “the calling party’s contact with the witness is restricted to its examination in court, unless otherwise authorized by the Chamber.” The judges of Chamber V did however say that parties are permitted to have “non-substantive” conversations within the 24 hour period.
Court/Tribunal: Special Court for Sierra Leone
Decision Title: Judgment in Contempt Proceedings
Chamber: The Appeals Chamber
Case Name: The Independent Counsel v. Hassan Papa Bangura, Samuel Kargbo, Santigie Borbor Kanu, Brima Bazzy Kamara
Date: 21 March 2013
Decision Background: The decision comes from an appeal by the defendants to the Trial and Sentencing judgments from September 2012 and October 2012, respectively. The defendants were charged with knowingly and willfully interfering with the Court’s administration of justice by attempting to bribe a witness to the Court. The were also charged with knowingly and willfully interfering with the Court’s administration of justice by otherwise interfering with a testifying witness. Kamara was specifically indicted for knowingly and willfully interfering with the administration of justice by disclosing information relating to the proceedings, in violation of a court order.
Kargbo plead guilty to the charges, pursuant to an agreement whereby he would become a witness at the trial. The judge stayed his sentencing until a determination regarding the other three defendants was reached. The other three defendants plead not guilty. The Trial Court found Bangura and Kanu guilty of the bribery charged, but acquitted Kamara as to that charge. The three accused were all otherwise found guilty on all of the other charges pending against them. Bangura received a 12-month sentence (taking into account time served on remand and rights abuses he experienced). Kargbo was sentenced to an 18-month suspended sentence due to his guilty plea and subsequent cooperation with the Court. Kanu and Kamara were both sentenced to 1 year 50 weeks for each count upon which they were convicted, to be served consecutively after already-existing sentences.
Kargbo filed an appeal, but did not actually appeal his sentence or conviction. Rather, he submitted that the Trial Court erred during his trial in three ways: failing to provide a reasoned opinion on an issue of fact and law appropriated raised during trial, failing to accord due weight to the threats against himself and his family as a result of his cooperation with the Court against the co-defendants, and failing to provide Kargbo appropriate protective orders.
Kamara filed notice of appeal in October 2013. The filing did not clearly set out the grounds for appeal, but appealed the conviction and sentence as being inordinately high due to the fact that it would run consecutively to other existing sentences.
Kanu also filed an appeal against his conviction and sentence, citing 27 grounds for appeal, which the Court noted failed to comply with the relevant Practice Direction guidelines, in form and content.
Although he asked for—and was given – an extension within which to file a proper Notice of Appeal, Bangura failed to do so.
The Independent Counsel filed responses to the defendants’ notices and grounds for appeal.
Decision Review: The Court noted that the Appeals Chamber reviews appeals from contempt convictions in the same manner that it reviews appeals from regular judgments, and that the applicable standards of review of judgments apply equally to contempt convictions. Because Kanu’s appeal focused on issues of fact, the Court re-iterated the standard for review of errors of fact, namely that it gives deference to the fact-finding of the Trial Chamber, and will not lightly overturn its findings. The Appeals Chamber will only reverse the fact-finding of the Trial Chamber and conduct its own analysis if the evidence relied upon by that Chamber could not have been accepted by any reasonable tribunal, or where the evaluation of the evidence was “wholly erroneous.” The Appellant claiming factual error must clearly articulate how the error of fact “occasioned a miscarriage of justice” – aka, how the error was critical to the verdict reached.
The Appeals Chamber also noted that it holds the discretion to determine whether any submissions by parties lack merit, and reserve the right to find that a party’s submission may not warrant a reasoned opinion from the Court in response. The Appeals Chamber noted that if submissions by any party are obscure, vague or otherwise insufficient, the Chamber may summarily dismiss those submissions. Generally, the Appeals Chamber will dismiss submissions where the grounds for appeal or other factual allegations in the submission are insufficiently developed. Mere allegations that the Trial Chamber failed to consider relevant evidence, or erred in its evidentiary evaluations, without providing information, evidence or argument in the pleading to show why this is the case, may be summarily dismissed by the Appeals Chamber.
In regards to the Kargbo’s appeal, the Appeals Chamber first noted that the Independent Counsel’s response to his appeal was not made within the applicable time window for filing a response. As such, the Appeals Chamber did not consider the Independent Counsel’s response. Going to the substance of the appeal, the Chamber noted that Kargbo was not appealing his sentence or his conviction, and was only addressing concerns regarding a protective order. Since he was not appealing his conviction or his sentence, the Chamber found that his submission was outside its competence to pass judgment, and dismissed the appeal.
In regards to the Kamara appeal, the Chamber noted that the defendant’s submission entirely failed to comply with requirements that the appeal clearly contain the grounds for appeal, and clearly indicate which filings contain the grounds for appeal, and which contain submissions by the party based on those grounds. The Appeals Chamber noted that this constituted a “fundamental flaw” with the defendant’s filings. As such, the Chamber found that it would be impossible for it to determine what information constituted grounds for appeal and which constituted submissions based on those grounds; for those reasons, the Appeals Chamber dismissed Kamara’s appeal in its entirety.
In regards to the Kanu appeal, the Chamber found that the defendant filed 27 grounds for appeal regarding his conviction, and 3 grounds regarding his sentence. He asked the Appeals Chamber to reverse the findings of guilt and convictions, and to vacate the Judgment in favor of a Judgment of Acquittal. The Chamber found, however, that the grounds submitted by the defendant in his appeal were obscure, contradictory, or vague. Noting that for this reason alone the appeal could be summarily dismissed, the Chamber proceeded to examine the defendant’s grounds for appeal.
In regards to the appeal of his conviction, the Appeals Chamber examined each ground, and found that each of the 27 grounds had fundamental flaws that necessitated their dismissal. Common issues that were present in many of the grounds were as follows: advancing the wrong type of claim, absence of submissions to support alleged grounds for appeal, failure to cite supporting law or principle, and confusing matters of substance and procedure. Additionally, throughout Kanu’s grounds for appeal, there was an overall lack of development of his arguments; namely, he continually failed to provide backup evidence or information to support his contentions, failed to provide adequate reasoning or support for his arguments, and generally failed to show or allege how certain allegations of error created the requisite “miscarriage of justice” needed to sustain an appeal.
In relation to Kanu’s sentencing appeal, the Chamber noted that in addition to arguing undue length of sentence considering his other sentences, Kanu also argued that the sentencing Trial Judge failed to take into account “mitigating actions” undertaken by Kanu, and that there was a significant disparity between the sentence he received and that given to co-defendant Bangura. The Appeals Chamber found that Kanu failed to even mention or address the mitigating factors that the Trial Court failed to consider, and summarily dismissed that element of the appeal. It further rejected the rest of Kanu’s grounds for appeal, noting that it took the time to examine the grounds for Kanu’s appeal – even though it could have summarily dismissed them due to the plethora of defects— in order that future counsel be reminded of the proper standards for submitting an appeal.
To access the full Decision, click here.