Archive for category Witnesses
ICC opens investigation into recent war crimes and CAH in CAR: A report issued by the ICC on Wednesday, 24 September 2014, confirms that an investigation has been opened into crimes committed in the Central African Republic by the mainly-Muslim Seleka alliance and the mostly Christian anti-Balaka militia. The allegations include murder, rape and recruiting of child soldiers. Investigators for the ICC will now begin the process of gathering evidence to support charges against those suspected of committing war crimes and crimes against humanity since the conflict began in 2013. (Reuters).
African Commission undertakes fact finding mission into CAR violations: From 10 to 14 September 2014, a three member delegation of the African Commission on Human and Peoples’ Rights conducted a find finding mission in the Central African Republic. The mission consisted of, among other things, discussions with CAR officials, working sessions with UN representatives, meetings with NGOs, visits to refugee camps and gathering of testimony from victims and witness. The delegation intends to issue a detailed report with recommendations to the Assembly of Heads of State and Government of the African Union in January 2015. In the meantime, the delegation has expressed concern that serious violations of human rights have and are continuing to be committed in the CAR. (ReliefWeb).
Karadzic trial closing arguments to be held on 29 August: The ICTY has scheduled closing arguments for 29 September 2014, in the case against Radovan Karadzic. The former Bosnian Serb president faces charges of genocide, crimes against humanity and violations of the laws or custom of wars for crimes committed during the 1992-1995 Bosnian conflict. (ICTY).
Sweden arrests two Rwandans for involvement in 1994 genocide: Two unidentified Rwandans suspected of involvement in the 1994 Rwandan genocide have been arrested in Sweden. The arrests come some two months after a Swedish appeals court confirmed a genocide conviction against Stanislas Mbanenande, a low level commander involved in five massacres in western Rwanda. (All Africa).
HRW says assassination spree in Libya possible CAH: The scores of political assassinations in Libya since 2012 may amount to crimes against humanity, said Human Rights Watch. These assassinations include the 19 September 2014, killing of five civilians, two activists, members of the security forces and a cleric in the eastern city of Benghazi. Human Rights Watch stated that the failure and unwillingness of the government of Libya to initiate investigations into the crimes and prosecute those responsible has “fostered a culture of impunity that has fueled further abuses.” (Human Rights Watch).
Israel and Palestine consider investigations and next steps for crimes on both sides: The Israeli military is investigating suspected war crimes committed by its operations during the recent conflict in the Gaza Strip. It is estimated more than 2,000 Palestinians were killed in Israel’s military campaign in July and August this year. Palestine’s Authority President Mahmoud Abbas said the country will soon decide whether to sign the Rome Statute of the ICC and be able to file a complaint against Israel in the Court for war crimes. (For more information on this topic, please click here) (The Times of Israel, McClatchy DC).
ECCC announces 17 October as date for final phase of trial: The second phase of the trial of Nuon Chea and Khieu Samphan at the ECCC is scheduled to being on 17 October 2014. In this final phase, the two former senior leaders of the Khmer Rouge face allegations of genocide, forced labor and political purges. The two were convicted last month of crimes against humanity for their roles in forced evacuations. (Voice of America).
NGO report provides new evidence of HR violations by Sri Lanka: The British rights group, Freedom From Torture, released a report today, 24 September 2014, documenting acts of detention, torture and sexual violence in Sri Lanka. The acts, carried out by Sri Lanka’s security forces, have mostly been aimed at ethnic Tamils and have occurred since the country’s civil war ended in 2009. Sri Lanka’s cabinet spokesman Keheliya Rambukwella claims the “report is totally biased” and Freedom From Torture “have anti-Sri Lanka elements and continue undue pressure on Sri Lanka by leveling baseless allegations.” (UCA News).
UN Commission on Syria highlights crimes committed by Assad regime: The head of the U.N. commission investigating war crimes in Syria, Brazilian diplomat Paulo Sergio Pinheiro, said the “Syrian government remains responsible for the majority of the civilian casualties, killing and maiming” in the country. Speaking in front of the 47-nation U.N. Human Rights Council in Geneva on Tuesday, 16 September 2014, Pinheiro described the sieges and attacks which have killed nearly 200,000 people since the start of the Syrian civil war. (US News).
ICC Prosecution Witness testifies about Ruto’s presence at fundraising event: On Tuesday, 16 September 2014, the ICC heard testimony from witness 604 relating to a fundraising event attended by Kenya’s Deputy President William Ruto. The witness’ statements appeared contradictory from earlier testimony. Ruto faces three counts of crimes against humanity for acts committed after the 2007 presidential election in Kenya. (All Africa).
Belgium welcomes accused acquitted of genocide at the ICTR: It is being reported that former Rwandan general Augustin Ndindiliyimana has been granted a Belgian visa. Ndindiliyimana was acquitted of genocide by the ICTR Appeals Chamber this past February. The ICTR has pushed for member states to host acquitted persons and those who have served their sentences. (All Africa).
Victims’ lawyer says Kenyatta phone records fake: Victims’ lawyers in the ICC case against Kenyan President Kenyatta Uhuru claim cell phone data records provided to the prosecution are fabricated. Lawyer Fergal Gaynor accused the President of devoting “enormous resources” to end the case and obstructing access to important records. (All Africa).
Argentina gives Government records to Inter-American Court of Human Rights: Documents relating to some 280 meetings of military leaders ruling the country of Argentina from 1976 to 1983 were disclosed to the Inter-American Commission on Human Rights on Tuesday, 16 September 2014. Argentina’s Defense Minister, Agustin Rossi, delivered the records which reveal, among other things, how the leaders ruled the country at the time and the decisions that were made. (Telesurtv).
Group of NGOs asks ICC for local tribunal and justice without delay in CAR: Several human rights groups, such as the Central African Human Rights League and the International Federation for Human Rights, have urged the ICC to launch an investigation into crimes against humanity, genocide and war crimes committed in the Central African Republic. The groups have also requested the U.N. peacekeeping mission to help in the establishment of a special court in the CAR to fight impunity and bring to justice those responsible for serious violations of international law. ICC Prosecutor Fatou Bensouda has already opened a preliminary investigation into crimes committed in the CAR. (All Africa).
ICC confirms charges against Bosco Ntaganda: The ICC has confirmed 18 counts of war crimes and crimes against humanity against Bosco Ntaganda. The Prosecutor brought evidence of attempted murder, rape and sexual slavery that occurred in Congo’s Ituri district in 2002 and 2003 to the attention of the ICC. HRW expresses the hopes of many other human rights organizations which is that this decision to charge one ranking official of the ICC will lead to many more. (HRW).
CAR inquiry finds CAH and war crimes, but hesitates to affirm that genocide committed: The latest inquiry into the violence in CAR appears to contradict earlier reports of ethnic cleansing. The report states that anti-Muslim propaganda coming from non-Muslim quarters does no mean that genocide is being planned or that there is a conspiracy to commit genocide. Amnesty International objects to the findings in the latest report and argues that the displacement and violence against Muslims sectarian in nature and evidence that a genocide or massive displacement is occurring. (MWC News).
ICC decided to fund Saif Gaddafi legal team: The ICC has made the decision to fund the defence of Saif Gaddafi as a way to increase his chances of obtaining a fair trial before the court. It is likely that Gaddafi would be sentenced to death if found guilty by a court a Libya. UK politicians and military figures have protested this action by the ICC. (Telegraph).
Former Norwegian Minister willing to testify to crimes in Sri Lanka: Erik Solheim, former international development minister for Norway, is prepared to give evidence before any recognized international tribunal detailing the atrocities he witnesses during the final months of the decades-long Sri Lankan conflict. Solheim was involved in the brokered peace agreement that fell through in 2006. (Mint).
Mladic Trial hears first defence witness: The ICTY heard its first witness in the Ratko Mladic case. Mladic has been charged with 11 offenses, ranging from hostage taking to genocide. Mladic maintains his innocence. (Aljazeera).
Gaddafi ICC Admissibility Decision expected from Appeals Chamber 21 May: The Appeals Chamber of the ICC has scheduled a hearing on 21 May 2014 to deliver the judgment on the admissibility of the case against Gaddafi. (ICC).
Rwanda Court begins first genocide case transferred from ICTR: The genocide trial of Pastor Jean Uwinkindi is a first for the ICTR. Uwinkindi is charged with genocide and extermination as a crime against humanity. He is accused of killing Tutsis himself as well as ordering the execution of many others. (Hirondelle).
African Commission asked to intervene in second round of mass death sentences in Egypt: The application for the African Commission to intervene is the second application on behalf of the individuals sentenced to death on 22 March. The Freedom and Justice Party first asked the Commission to intervene concerning the first group (529 individuals) sentenced to death on 25 April, whereby the AC ordered Provisional Measures ordering Egypt to suspend the death sentences and up hold the individuals’ rights. Thereafter, Egypt has sentenced an additional 687 to death and the FJP is now asking for similar provisional measures in relation to this second group. (MEM).
ICC witness goes on hunger strike: Floribert Ndjabu has begun a hunger as a way to force the ICC to make a decision regarding his state of detention and application for asylum in the Netherlands. Ndjabu was one of three witnesses who sought asylum in the Netherlands after providing testimony for the prosecution in its case against the Congolese militia bosses Mathieu Ngudjolo Chui and Germain Katanga. (Yahoo News).
Government of Kenya granted extra time to leave to appeal witness summons decision: The ICC has granted a ten day extension to file leave to appeal the summons of eight witnesses to be forced to testify in the case against Deputy President Ruto. The ICC has made it clear that the time extension has been granted to the Kenyan government to make any application they find appropriate without prejudice to the Chamber’s decision. Standard Digital).
Clooney’s fiancée represents Senussi’s rights at the ICC: Amal Alamuddin currently represents Muammar Gaddafi’sformer spy chief, Abdullah al Senussi, against charges of crimes against humanity. Alamuddin has garnered international attention for her choice of controversial clients, including her work as legal adviser to Bahrain’s king. (The Guardian).
North Korea publish list of US human rights abusers: In response to a recent UN report detailing a number of alleged human rights abuses committed by the United States, the North Korean government has released its own report accusing the United States of its own human rights abuses. NK makes allegations of racism and that the US is the most violent nation in the world. (All Voices).
Secretary General alarmed at potential human rights violations in Egypt: The UN Secretary General Ban Ki-moon is concerned at the news that another preliminary mass death sentence has been handed down in an Egyptian court. This recent decision comes on the heels of a 24 March decision where 529 defendants were convicted of numerous crimes. There is fear that the mass sentencing and stricter laws regulating protests may lead to more instability in the region. (UN).
ICC Prosecutor initiates preliminary investigation into Ukraine: ICC Prosecutor, Fatou Bensouda, has decided to open a preliminary examination in Ukraine to investigate the alleged crimes committed on its territory from 21 November 2013 to 22 February 2014. During the preliminary stages of her investigation, Ms. Bensouda will confirm that the jurisdiction, admissibility and the interests of justice standards are satisfied before a the ICC proceeds any further. (ICC).
Seif Gaddafi attends trial via video; trial adjourned until May 11: Seif al-Islam Gaddafi appeared for his second appearance in court in Tripoli via videoconference sourced from the city of Zintan. Gaddafi replied in with a no when he was asked if he had a lawyer. It is unclear why he has not been transferred to Tripoli to appear in person. The session has been adjourned to May 11. (AP).
ICT of Bangladesh delays trial of Jamaat-e-Islami leader: A severe heat wave has caused the ICT to defer the hearing of Jamaat-e-Islami to May 6. The temperature in Dhaka hit 40.2 degrees Celsius on Thursday, which led to the absence of a prosecution witness. (bdnews).
Court/Tribunal: International Criminal Court
Decision Title: Decision on the “demande de mise en libertè provisoire de Maitre Aimé Kilolo Musamba [Request for provisional release of Aime Kilolo Musamba]”
Chamber: Pre-Trial Chamber II
Case Name: Prosecutor v. Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido
Date: 14 March 2014
- The Single Judge presiding over the defendant’s request for provisional pre-trial release denied the request, citing the existence of continuing risks necessitating the defendant’s continued detention.
Principles found in decision:
- Pre-trial detention is an exceptional remedy that must be deemed both necessary and proportional; however, where a trial court makes these determinations, the presumption of innocence that attaches to a defendant will not prevent pre-trial detention
- In determining whether detention is still necessary, the court will look to whether the conditions that necessitated the defendant’s detention at the time of arrest continue to exist. The court will look at whether there are any “changed circumstances” at the time of an application for release that would militate against the defendant’s continued detention
- In determining whether detention is necessary, the court, under article 58(b)(1), will look to whether the defendant poses a flight risk, whether there is a risk of obstruction of the trial proceedings, or whether there is a risk of future crimes. The court makes this determination in the alternative, meaning that only one condition must be present for the necessity of detention to be established
- A consideration of the defendant’s personal or professional character or qualities does not factor into the court’s determination on the necessity of continued detention
- A consideration of any prejudice to the defendant’s professional or personal life created by continued detention does not factor into the court’s determination on the necessity of continued detention
Decision Background: This decision stems out of the charges against Musamba, alleging that he engaged in various forms of witnesses tampering in the main case against Jean-Pierre Bemba Gombo. The court issued a warrant for the arrest of the above-named defendants on 20 November 2013. On 16 December 2013, defense counsel for Musamba submitted a request to the court to hold a hearing on the question of provisional pre-trial release for the defendant. Per a decision granting extended time, the court granted the Prosecutor, the Kingdom of Belgium and the Kingdom of Netherlands until 13 January 2014 to submit any observations on the defense request for provisional release. The Prosecutor objected to any provisional release of the defendant.
Decision Review: The issues of provisional release was decided by a Single Judge in the Chamber. Upon application by a defendant for provisional release, the Single Judge whether the personal “shall continue to be detained,” or “shall be released, with or without conditions,” (quotations omitted). Pre-trial detention is an exceptional measure, and must be proven to be both necessary and proportional. The presumption of innocence that attaches to the defendant, however, does not preclude pre-trial detention if deemed necessary by the court. Detention will apply when the statutory requirements for pre-trial detention continue to be met at the time of application for release.
In order to make such determination, the Single Judge makes a new inquiry into whether facts exist at the time of application sufficient to warrant the defendant’s continued detention. The Single Judge may rely on upon the same information that first justified retaining the defendant, and may undertake the inquiry based upon the factors that underlay the initial decision to retain the defendant. These factors are: whether there are reasonable grounds to believe that the person committed the crimes alleged by the Prosecutor, and whether the arrest and detention of the defendant appears necessary for one or more of the reasons articulated in article 58(1)(b) of the Statute.
On the first prong of the assessment, the Single Judge determined that numerous documents of evidence obtained by the Prosecutor – including reports and transcripts of conversations between the defendant and the witnesses with whom he is alleged to have tampered – established reasonable grounds to believe that the defendant had committed the charged offenses. The burden of proof at the pre-trial to establish a “reasonable belief” that the defendant committed the charged crimes is lower than the beyond-a-reasonable-doubt standard that adheres in finding a defendant guilty.
As to the second prong, the defense had argued that changed facts and circumstances made his continued pre-trial detention no longer necessary. Under the Statute, the court may find that changed circumstances (circumstances different from those found at the time of arrest to necessitate the defendant’s continued detention) requires the defendant’s pre-trial release. A “changed circumstance” sufficient to allow the defendant’s pre-trial release is either a change in some or all of the facts underlying a previous decision on detention, or a new fact satisfying a Chamber that a modification of its prior ruling is necessary. To determine whether there is a changed circumstances, the Single Judge will look at whether the factors laid on in article 58(1)(b) still exist at the time of the application for provisional release. Those factors are: appearance at trial/flight risk, defendant’s obstructing or endangering the investigation of the Court proceedings, and risks related to future crimes. These factors operate in the alternative, meaning that the fulfillment of one requirement is sufficient to warrant continued detention. Further, the question is the possibility of the occurrence of the risk, not that the risk posed by defendant’s release will actually occur. The possibility of future risk is proven by specific and concrete elements.
The defendant cited frozen assets, the surrender of his passport to Detention Center officials (the defendant is a Belgian national), and his willingness to check in with Belgian officials on a weekly basis throughout his release, as counting against finding him a flight risk such that continued detention would be necessary. Second, the defendant argued that the fact that he is no longer serving as counsel on the main Gombo case militates against finding him to be a continued risk to the administration of the main case.
The defendant had provisioned to the Court written statements from friends and family regarding his character; the Single Judge, however, determined that this information is not relevant to the decision, as personal or professional quality does not factor in to the determination of the necessity of continued pre-trial detention. Further, the Single Judge found that the fact that the defendant has not in the past been found guilty of any other crime does not affect the risks associated with the current conduct for which the defendant was arrested. Likewise, the Single Judge found that the potential for prejudice to the defendant’s personal or professional life, posed by his continued detention, is not a factor that is considered in making the detention determination.
The Single Judge found that despite the efforts taken by the defendant to prove his lack of flight risk, the extensive network he maintains with the associates of Gombo – and the resources available to them – still presented a substantial flight risk were they to release the defendant. Further, the Single Judge noted that releasing the defendant to Belgium, as requested, would pose a flight risk due to the relative ease of travel without need for travel or identifying documents between borders in the area. The Single Judge also found that the fact that the defendant is no longer serving as an attorney on the Gombo case, does not establish that the defendant does not maintain sufficient contacts with the network that could provide a manner of flight. Particularly concerning the Single Judge was the possibility of indirect or direct financial support coming from the network that could facilitate flight.
Additionally, the Single Judge noted the nature of the crime – attempts to tamper with witnesses in the main case, by a barred attorney on the case – as a significant factor in his findings. The Single Judge noted that these crimes pose a great risk to the main case, where the outcome of the case is still pending. The Single Judge noted the possibility of the impact of the defendant’s actions, which had yet to be determined, and the serious problems they pose to the fair and effective administration of justice. He also noted the defendant’s actions’ potential to undermine general public trust in the administration of justice as a major consideration.
Further, the Single Judge noted that evidence from the main case revealed several instances where the defendant directly tried to influence the proceedings through contact with witnesses. The Single Judge found that these instances were seriousness enough to warrant the defendant’s detention in order to prevent further witness tampering. The Single Judge found, based on the defendant’s prior conduct, that a risk remained that the defendant would continue to try to interfere with either the main case, or the proceedings in his own case. Therefore, the Single Judge found that, pursuant to the requirement in article 58(1)(b), a risk of interference by the defendant remains so long as trial proceedings continue.
Finally, and related to the Single Judge’s finding regarding the risk of obstruction, the Single Judge found that the defendant’s past conduct created a substantial risk for the commission of future crimes – namely, continued obstruction and interference with trial proceedings.
The Single Judge found that alternative release – supervised release under the conditions which the defendant offered to be bound – would not mitigate against these risks. The Single Judge found that the majority of the defendant’s alleged conduct occurred through communications with witnesses in the outside world, such that keeping the defendant in a controlled, detention environment is the only way to ensure that these risks are effectively managed.
Based on the foregoing, the Single Judge denied the defendant’s request for provisional pre-trial release.
To access the full Decision, click here