ICJ Media Review: Saif Gaddafi defence challenge admissibility of ICC case

Like Saif al-Islam Gaddafi
Monday, June 18, 2018 - 07:52

By ICL Media Review

In this week's review, news about the Gaddafi admissibility challenge, interim release of Bemba and victims’ reparations, Special Tribunal for Lebanon final brief and closing presentations schedule, Amicus Curiae in Rohingya jurisdiction question and Jordan Article 87(7) appeal, German arrest warrant for Syrian official and more:

Saif Gaddafi defence challenge admissibility of ICC case

In the case against Saif Al-Islam Gaddafi before the ICC, the Gaddafi Defence submitted a challenge to the admissibility of the case, arguing that Gaddafi has already been tried in Libya for the same conduct. The Defence submitted that Gaddafi was convicted and sentenced to death in 2015 by the Tripoli Criminal Court, and that the right not to be tried twice for the same conduct is an internationally recognised human right. Further, it submitted that the exceptions under Article 20(3) of the Statute do not apply, noting that the proceedings against Gaddafi in Libya cannot be construed as having been conducted for the purpose of shielding him from criminal responsibility, or having not been conducted independently or impartially. It argued that, although the ICC’s Appeals Chamber in 2014 rejected Libya’s appeal challenging the admissibility of the case, it reached an opposite conclusion in proceedings against Abdullah Al-Senussi.  The Defence also submitted that Gaddafi’s trial in Libya related to the “same conduct” as that alleged before the ICC, namely, for his role in crimes including the killing of civilian demonstrators opposed to the regime of Muammar Gaddafi. Although Libya subsequently passed a law dropping Gaddafi’s sentence, the Defence argued that such executive action is not relevant to the question of whether national court proceedings were for the purpose of shielding Gaddafi. (ICC Defence Brief)

ICC Trial Chamber orders interim release of Bemba from detention 

On 12 June, Trial Chamber VII of the International Criminal Court ordered the interim release of Jean Pierre Bemba Gombo, while he awaits sentencing for offences against the administration of justice. This decision follows Bemba’s acquittal on the charges in the main case against him. On 8 June, the Appeals Chamber, by a majority, overturned the conviction of Bemba by Trial Chamber VII for crimes against humanity and war crimes alleged to have been committed in the Central African Republic. The Chamber then ordered an urgent status conference on Bemba’s continued detention, which was held on 12 June 2018. The Chamber found that Bemba’s acquittal on the charges in the main case meant that Bemba’s four years in custody amounted to 80% of the maximum penalty for the offences against the administration of justice, and his continued detention would therefore be disproportionate. The Chamber considered that the risks that justified detention (failing to attend trial, obstructing the proceedings or continued offending) no longer existed. The Chamber noted that Belgium had previously demonstrated a willingness and capacity to supervise Mr Bemba if he were released. The Chamber ordered Mr Bemba’s release with various conditions including notifying the court of his address, not contacting witnesses in the case and refraining from making public statements. (DecisionICC website, ICC TC Order)

Bemba Trial Chamber invites submissions on victim reparations proceedings following acquittal

In the case against Jean-Pierre Bemba Gombo before the ICC, the Trial Chamber invited the Defence, the Legal Representative of the Victims, the Office of Public Counsel for Victims, the Office of the Prosecutor and the Trust Fund for Victims to file confidential submissions on the reparations proceedings by 29 June. The order comes in the wake of the Appeal Chamber’s recent reversal of Mr Bemba’s conviction and its acquittal of all remaining charges. (ICC TC Order)

Lebanon tribunal Trial Chamber re-schedules filing of the final briefs and presentation of closing arguments in Ayyash at al case

In the revised scheduling order issued on 12 June, the Special Tribunal for Lebanon Trial Chamber modified modalities concerning the filing of the final briefs and set a date for the presentation of closing arguments in the Ayyash at al case. Taking into account completion of outstanding evidence, including the anticipated evidence of Mr Taylor in the week of 25 June 2018, the Parties and participating victims are expected to file their respective briefs soon afterwards. The Chamber opted for a consecutive filing of briefs, ordering the Prosecution together with Legal Representatives for Victims to file their briefs first on 16 July 2018, followed by the Defence on 13 August 2018. Subsequent to the filing of the briefs, the Chamber is expecting to hear oral closing arguments in the weeks of 27 August to 7 September 2018. The Trial Chamber suspended its initial Scheduling Order issued on 11 April 2018 due to the change in circumstances, including the calling of witnesses by the Oneissi Defence, the application for disqualification of the Trial Chamber Judges, the joint Defence and Prosecution requests for reconsideration of the initial order and the resolution of the outstanding evidentiary matters. (STL TC Scheduling Order)

ICC Pre-Trial Chamber decides on amicus request and receives further amicus request from Bangladeshi Non-Governmental Representatives

The ICC’s Pre-Trial Chamber I issued a decision granting leave for a number of additional organisations and persons to submit amicus curiae observations in connection with the question of the Court’s jurisdiction over the alleged deportation of more than 670,000 members of the Rohingya people from Myanmar into Bangladesh. The Pre-Trial Chamber had received requests from the Women’s Initiatives for Gender Justice, Naripokkho, Ms Sara Hossain and the European Centre for Constitutional and Human Rights, and noted in its decision that, rather than addressing the scope of the Court’s territorial jurisdiction, the applicants’ observations would focus on how sexual and gender-based violence can be appraised within the crime of deportation. The Pre-Trial Chamber also received a request for leave to submit amicus curiae observations from the Bangladeshi Non-Governmental Representatives (“BGNR”), an informal group of Bangladeshi civil society organisations, humanitarian agencies, jurists, human rights advocates, and scholars. The BGNR argued that, by having engaged directly with Rohingya people who have fled/been deported to Bangladesh, it is uniquely placed to offer assistance to the Pre-Trial Chamber. (ICC PTC DecisionICC Amicus Curiae Request)

Amicus curiae submissions made in Bashir/Jordan Appeal

In the case against Sudanese president Omar Hassan Ahmad Al-Bashir before the ICC, the Appeals Chamber received amicus curiae observations on the merits of the legal questions presented by Jordan’s appeal regarding a visit by President Al-Bashir to Jordan in March 2017. In his submissions, Professor Nicholas Tsagourias described the relationship between the different sources of law in the court’s Statute, arguing that neither treaty nor customary law can be used to reinterpret the provisions of the Statute. Professor Tsagourias also clarified that Sudan is not a “third state” for the purposes of the Statute whose cooperation is required prior to a request for surrender. Finally, he argued that Sudan’s obligations under Resolution 1593 prevail over its other obligations under treaty or customary law. (ICC Amicus Submissions)

Cambodia tribunal Pre-Trial Chamber issues two decisions to make public submissions regarding Im Chaem

The Extraordinary Chambers in the Courts of Cambodia’s Pre-Trial Chamber issued two separate decisions regarding the making public of submissions regarding Im Chaem. One document addressed Im Chaem’s Co-Lawyers request that the Pre-Trial Chamber reclassify as public, Im Chaem’s response to the International Co-Prosecutors submissions against her. The request was made in in the interests of transparency in and attempt to balance the “inaccurate and misleading” information available on the internet. The Pre-Trial Chamber found it appropriate to reclassify the Defence response to the Final Submission to public. Further, the Chamber decided to unredact Im Chaem’s name in submissions, as well as names of deceased Khmer Rouge officials. Though names and addresses of people under protective measures would still be redacted.

Similarly, the International Co-Prosecutor requested the Pre-Trial Chamber reverse the Co-Investigating Judges decision to redact the public version Closing Order & the Impugned decision or, alternatively, to reclassify it as public. The Pre-Trial Chamber noted reasons of transparency, education, and legacy for reclassifying the decisions. However, the Chamber noted that some redactions would still be necessary. As such, the Office of the Co-Investigating Judges have been ordered to issue public versions of the Closing Order as well as the Impugned Decision.  (ECCCECCC)

German prosecutors issue international arrest warrant for Syrian official for war crimes and crimes against humanity

It was reported on 8 June that German federal prosecutors had issued an arrest warrant for Jamil Hassan, head of Syrian Airforce Intelligence, on charges of crimes against humanity and war crimes. He is reportedly accused of overseeing torture, rape and murder – including the summary executions of political detainees – between 2011 and 2013 in Syria. Hassan was one of 10 high-ranking Syrian officials named in a criminal complaint filed with the prosecutors in Germany in November 2017. (ReutersECCHR)

Rights groups submit report to the ICC on alleged crimes against humanity committed by Mexican authorities 

Human rights groups have appealed to the ICC Prosecutor to investigate documented crimes and to end the impunity of the authorities in Chihuahua, Mexico. Several human rights groups, including FIDH and the National Commission for Human Rights submitted a joint report to the ICC Prosecutor stating there is a “reasonable basis to believe” that alleged gross human rights violations committed by the Mexican Army (FAM) constitute crimes against humanity. Systematic torture, enforced disappearances, extrajudicial detention, murder, rape and sexual violence are alleged to have been perpetrated during the first phase of the Chihuahua Joint Operation (OCCH) between 2008 and 2010, in the wider context of the war against drugs. The human rights groups documented 35 cases, gathered evidence from 121 direct victims and analysed other publicly available sources including official information from government sources.

The collected information points to the existence of a clear policy “to show the results” engaged in by members of the armed forces with the knowledge of the highest military and civilian officials. The figures contained in the report show that the number of violent deaths increased in the Chihuahua region after the implementation of OCCH, from 2,600 in 2008 to 6,407 in 2010. The human rights groups further voice their concerns that the alleged perpetrators, including mid-levels of the command chain responsible for the commission of the alleged crimes, act with impunity. The report alleges that there is a continuous denial policy and that actions taken by the authorities, including investigations and trials, also show no sign of “genuine national proceedings.” The situation in Mexico has reportedly deteriorated after the recent entry into force of the Internal Security Act. FIDH, in collaboration with other groups, has previously submitted communications to the ICC concerning issues in Coahuila between 2009 and 2016, and Baja California between 2006 and 2012. To date, the ICC Prosecutor has not taken any known steps towards issues in Mexico. (FIDH Report)

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