ICJ Media Review: ICC judges hear closing arguments in Ntaganda trial

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Monday, September 3, 2018 - 10:27

By ICL Media Review

 

In this week's review, news about closing arguments in the Ntaganda trial, hearing scheduled for Jordan / Bashir appeal, resentencing in Bemba et al scheduled, the International Commission of Jurists (ICJ) releases legal briefing note on genocide, UN Fact Finding Mission makes findings on Myanmar genocide, possible war crimes in Yemen and more.

ICC judges hear closing arguments in Ntaganda trial

On 28 August, Trial Chamber VI of the International Criminal Court began hearing the closing arguments in the Bosco Ntanganda case with submissions from the Prosecution, Defence and the Legal Representatives of the Victims over the course of three days. ICC Prosecutor Fatou Bensouda called for Ntaganda’s conviction, stating that he personally committed crimes, including the use of children under the age of 15 to participate in hostilities. The Prosecution has alleged that, in addition to using child soldiers, Ntaganda coerced female soldiers into sexual slavery and attacked civilians in ethnic groups. On the second day of closing statements, the legal representative for 283 victims claimed that Ntaganda used child soldiers, “under the spell of alcohol and drugs” to “kill, rape and pillage the enemy.” She further claimed that Ntaganda was directly involved in the recruitment of thousands of children to serve in his army in the northeastern Democratic Republic of Congo. Ntaganda faces 18 counts of war crimes and crimes against humanity in connection with his role in a militia group during the conflict that devastated the Ituri region in 2002 and 2003.  Ntaganda, who voluntarily surrendered to the ICC in 2013, has maintained that he was a peacemaker and a “soldier, not a criminal.” He is accused of several counts of war crimes and crimes against humanity, including sexual violence, murder and the use of child soldiers,  committed in Ituri, DRC between 2002 and 2003. His trial commenced on 2 September 2015. (Associated Press NewsReuters, Business Live, Reuters)

ICC Appeals Chamber issues order on conduct of hearings in Jordan/Al-Bashir Appeal including guidance questions

The ICC Appeals Chamber scheduled the hearing of the submissions related to certain issues arising from the appeal of the Hashemite Kingdom of Jordan against the decision of Pre-Trial Chamber II from 11 December 2017. The revised schedule envisions hearing the submission from the parties and amici curiae in a four-day period between 10 and 13 September 2018, as opposed to the initially scheduled three days. In the same order, the Chamber requested the parties to provide answers to 38 questions grouped into three sets which “are intended to guide the parties and amici curiae in their submissions.” The first group of questions focuses on the applicable customary international law and conventional law on the immunity of a head of state.

The second group of questions is related to the Chapter VII of the UN Charter, such as the power of the UN Security Council to waive, displace or override the immunity of a head of State under applicable law. The third set of questions pertains to the relationship between the 1953 Convention on the Privileges and Immunities of the Arab League and the provisions in the Article 98(2), 86, 87(7) and 97 of the Rome Statute.  The Chamber seeks to explore the application of the “international agreements” provision in the Article 98(2) vis-a-vis the 1953 Convention; actions taken by Jordan to communicate its difficulties in executing the arrest warrant against Mr Al-Bashir in accordance with the Article 97 and the relationship between the general obligations of the countries under Article 86 to cooperate with the ICC and paragraph 2 of the Resolution 1953.  Each of the parties and the amici curiae were allocated with time and order in which they are expected to address the court on the given issues.  (ICC, Appeals Chamber Order)

Date set for decision on re-sentencing of Bemba et al. case

Trial Chamber VII issued a Scheduling Order setting 17 September 2018 as the date for the delivery of the re-sentencing decision in the Bemba et al. case. Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido were convicted by the Trial Chamber on 19 October 2016 of offences against the administration of justice, including tampering with witnesses and soliciting false testimonies. While the Appeals Chamber partially acquitted Mr Bemba, Mr Kilolo and Mr Mangenda and confirmed the rest of the convictions in the judgment on 8 March 2018, it found the Trial Chamber had committed a series of errors in reducing the corresponding sentences against three of the Accused – Mr Bemba, Mr Kilolo and Mr Mangenda. The Trial Chamber sentenced Mr Bemba to one year of imprisonment and a fine of EUR 300,000, Mr Mangenda to 24 months of imprisonment and Mr Kilolo to 30 months of imprisonment and a fine of EUR 30,000. Consequently, the Appeals Chamber reversed the sentences and remanded the matter to the Trial Chamber for a new determination. (ICC, Trial Chamber VI, Scheduling Order)

Legal briefing note on the crime of genocide released

On 27 August, the International Commission of Jurists (ICJ) released a legal briefing note on the international crime of genocide. The briefing note is in the form of a Q&A and comes following the recent call from the Independent Fact-Finding Mission on Myanmar for an investigation into crimes under international law committed in Myanmar, including genocide. It is intended to assist in the determination of whether the situation in Myanmar can be considered genocide and whether anyone could be found criminally responsible. It covers the legal definition of genocide and focuses on the meaning of genocidal intent. It then goes on to discuss examples from various jurisdictions, including jurisprudence from the International Criminal Court, International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia. (ICJ website)

UN Independent International Fact Finding Mission advises genocide charges for Myanmar military officials

The United Nations Fact-Finding Mission on Myanmar released its report on 27 August. It said that six generals, including Commander-in-Chief Senior-General Min Aung Hlaing, must be investigated and prosecuted for genocide in the north of Rakhine State, as well as for crimes against humanity and war crimes in Rakhine, Kachin and Shan States. The crimes against humanity recognised by the report  in Kachin, Shan and Rakhine States included murder, imprisonment, enforced disappearance, torture, rape, sexual slavery and other forms of sexual violence, persecution and enslavement. It also found the elements of crimes against humanity of extermination and deportation were present in Rakhine State. The Mission has drawn up a list of alleged perpetrators as priority subjects for investigation and prosecution, whom it believes had effective control and bear the greatest responsibility. Whereas the report observed that civilian authorities had little scope to control the actions of the military, it also found that civilian authorities had contributed to the crimes through their acts and omissions. (Mission ReportOHCHR Press ReleaseThe GuardianNew York TimesCNN)

Bemba ineligible as DRC Presidential candidate due to ICC contempt conviction

The Independent National Electoral Commission of the Democratic Republic of Congo has declared Jean-Pierre Bemba to be ineligible for presidential candidacy. Mr Bemba was excluded on the basis of his conviction by the International Criminal Court (ICC) for bribing witnesses. The country’s electoral laws preclude persons convicted of corruption from standing for election. (BBC)

Defence seeks reconsideration of ICC Trial Chamber’s decision on order of Ntaganda’s unsworn statement

The Defence for Bosco Ntaganda requested that the Trial Chamber of the International Criminal Court revise its second order on closing remarks to the effect that Mr Ntaganda’s unsworn statement be the last submission before the case is adjourned. The existing orders contemplated that the Prosecutor would have a right of reply to the statement as well as the Defence’s submissions. The Defence contended that the issue directly concerned the rights of the accused and the proper conduct of proceedings. It said that new arguments, as well as new facts, can be a proper basis for a Trial Chamber exercising its discretion to reconsider, especially when necessary to prevent an injustice or simply where there is reason to believe that the original decision was erroneous. (ICC)

Bosnian court sentences former Bosnian Serb official to 11 years prison for war crimes

The Court of Bosnia-Herzegovina sentenced Jovan Tintor, a former high-ranking Bosnian Serb official, to eleven years in prison for war crimes committed in 1992 in Vogosca, on the outskirts of Sarajevo. Tintor, who was an associate of former Bosnian Serb leader Radovan Karadzic and who headed Vogosca when Bosnian Serbs took over parts of Bosnia, was found to have systematically attacked Vogosca’s Muslim and Croat population, committing crimes including imprisonment, torture and murder of civilians. (Washington Post)

Saudi-led coalition dismissed UN report on Yemen crimes; US calls alleged violations concerning

In the wake of a report by UN investigators asserting that all parties to the conflict in Yemen have committed a substantial number of violations of international humanitarian law, a Saudi-led coalition has rejected the report as inaccurate. Arguing that the report omitted Iran’s role in continuing the war, the coalition pledged to provide a detailed legal response at a future date. The UN investigators’ report asserted that many of the violations in Yemen may amount to war crimes, noting the widespread arbitrary detention, rape, torture, and recruitment of children as young as eight years old. The United States, which is backing the Saudi-led coalition against the Iranian-backed Huthi rebels, called the report “concerning,” and said that its support for the coalition is not unconditional. Since 2015, the conflict in Yemen has killed nearly 10,000 people, including nearly 7,000 civilians.  (France24)

UN MICT rescheduled hearing date for review proceedings of Ngirabatware 

In the case against Augustin Ngirabatware before the International Residual Mechanism for Criminal Tribunals, the Appeals Chamber issued an order scheduling a review hearing from 24 to 28 September in Arusha, Tanzania. Ngirabatware was convicted of direct and public incitement to commit genocide and instigating and aiding and abetting genocide, as well as rape as a crime against humanity, but the rape conviction was reversed in 2014. In June 2017, the Appeals Chamber granted Ngirabatware’s request for review of his convictions in light of new information of an evidentiary nature. While the review hearing was originally scheduled for February 2018, the hearing was adjourned until further order following the withdrawal of Ngirabatware’s counsel and appointment of new counsel.  (UN MICT Appeals Chamber Order)

Photo: YouTube screengrab (ICC-CPI)

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