ICL Media Review - Week 36

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Friday, September 9, 2016 - 12:51

By ICL Media Review

In this week's review, news about the ICC decisions on Bemba's financial information, Ongwen pre-trial briefs and an order for disclosure, victim participation in Bemba appeal, Kosovo Tribunal prosecutor’s appointment, ICC delegation’s visit to Israel and more.

New court room at the International Criminal CourtICC Trial Chamber rejects Prosecution request in Bemba contempt case for financial information from Registry

On 7 September, the Trial Chamber of the International Criminal Court rejected the Office of the Prosecutor’s 10 August request to obtain financial information from the Registry regarding the main case of The Prosecutor v. Jean-Pierre Bemba Gombo. The Prosecution made the request with regard to the current case against Bemba Gombo, who is charged with offences against the administration of justice. According to the prosecution, the requested information is relevant to any sentencing determination in the case, as it will assist in the assessment of both the actual and potential pecuniary damage to the Court. Notably, they pointing to Article 78(1) of the Rome Statute, which covers taking the gravity of the crime into account, and Rule 145(1)(c) of the Rules of Procedure and Evidence, which requires consideration of the extent of damage caused. The Chamber rejected the request as premature as sentencing submissions have yet to be made, the case is still being deliberated, a judgment pursuant to Article 74 of the Rome Statute has yet to be made, and there has been no conviction. The judges are currently in deliberation over the judgment and sentencing, after closing oral statements were made over the course of three days from 31 May to 2 June 2016. (ICC TC decision)

Dominic OngwenPre-trial briefs submitted in Ongwen case

On 6 September, the ICC’s Office of the Prosecutor and the Victims (represented by the Common Legal Representative) filed respective pre-trial briefs in accordance with the Trial Chamber IX’s order of 30 May. Along with the OTP’s 285-page brief, the Office submitted a separate list of evidence, list of witnesses and a summary of anticipated testimony. The purpose of the OTP’s pre-trial brief is to facilitate the preparation for trial by summarising the principal evidence underlying the prosecution’s case, arguing that beyond a reasonable doubt Dominic Ongwen committed crimes – both personally and via his involvement in the Lord Resistance Army’s Sinia brigade – including persecution, sexual and gender-based crimes and the conscription and use of child soldiers. Separately, the Common Legal Representative of 592 victims authorised to participate in the Ongwen case submitted a pre-trial brief in order to outline the main view and concerns of the victims of the LRA’s method of warfare, which allegedly included attacks on the civilian population and extreme violence, including the mutilation of lips, ears, breasts, eyes and limbs. Ongwen faces 70 charges of war crimes and crimes against humanity, allegedly committed in northern Uganda between 1 July 2002 and 31 December 2005, in the case of The Prosecutor v. Dominic Ongwen at the ICC. (Prosecution Brief, Prosecution Filing on Evidence, Victims' Brief)

Samphan and Chea defence request documents on forced marriage

In the ongoing trial of Khieu Samphan and Nuon Chea for crimes against humanity and genocide at the ECCC, the defence has requested that judges allow the admission of evidence that would arguably help to contextualise the charge of forced marriage being brought against the defendants. It would furthermore support the testimony of expert witness 2-TCE-82. The documents referenced by the defence include 2,200 transcribed interviews, prompting Deputy Co-prosecutor William Smith to protest that their admission would be untimely and unreasonable, requiring extensive analysis, translation, and redaction. The ECCC judges have yet to rule on the defence request. Separately, the lawyers for the civil parties in the case have informed the Court that they will appeal the decision not to hear rape allegations lacking a nexus to forced marriage. (The Phnom Penh Post)

Chief Prosecutor of Kosovo Tribunal appointed

American lawyer, David Schwendiman, has been appointed as the Chief Prosecutor for the special Kosovo Tribunal being established in The Hague. The Court, mandated to try those responsible for war crimes during the 1998-1999 Kosovo war, will apply Kosovo law and consider atrocities committed by those on both sides of the conflict, including notably by the Kosovo Liberation Army against ethnic Serbs. Prosecutor Schwendiman was previously the EU’s lead prosecutor in the Special Investigative Task Force on Kosovo and a war crimes prosecutor in Bosnia. (Reuters)

Jean-Pierre BembaICC Appeals Chamber allows victims to participate in Bemba sentencing appeal

On 1 September, the Appeals Chamber (AC) allowed the victims to participate in the appeal proceedings in the Bemba case. The AC granted victims the right to participate “in the trial and sentencing proceedings...for the purpose of presenting their views and concerns in respect of their personal interests in the issues on appeal”. To ensure so, the AC allowed the legal representative of victims to file “consolidated observations within 30 days of the notification of the last response to the documents in support of the appeals” of maximum 30 pages. Additionally, the AC granted both Bemba and the Prosecutor the right to file a response to such victims’ observations. To reach such a decision, the AC noted that Article 68(3) of the Statute grants the Court the power to permit victims’ “views and concerns to be presented and considered at stages of the proceedings”. Considering that Trial Chamber III authorised 5,229 victims to participate in the trial proceedings in the Bemba case, and noting that the “appeals against the Sentencing Decision are directed against the entirety of the decision”, the AC found that the personal interests of such victims were “affected by the appeals in the same way as during the sentencing proceedings”. (ICC AC decision)

ICC Trial Chamber rejects Ongwen leave to appeal order to disclose calls and money to witnesses

On 2 September, the Trial Chamber IX (Single Judge Bertram Schmitt) rejected the Ongwen defence leave to appeal the decision ordering inter alia Mr Ongwen to disclose “payments or promises of money” made to potential witnesses. Considering that it violated the accused's right to remain silent, the defence requested leave to appeal the Decision on Prosecution Request for an order that Mr Ongwen cease and disclose payments to witnesses and that the Registry disclose certain calls made by Mr Ongwen. Recalling the definition of an ‘appealable issue’ and stating Article 82(1)(d) of the Statute, the Chamber considered that the cumulative criteria to lodge an appeal were not met by the defence application. The Chamber noted that the defence failed “to articulate how the Issue affects the fair and expeditious conduct of the present proceedings” or the outcome of the trial. (ICC TC decision)

African Union logoAfrican Court names new vice president

On 5 September, Justice Ben Kioko from Kenya was elected the Vice President of the African Court on Human and Peoples’ Rights (ACHPR). Kioko was previously elected judge of the ACHPR in July 2012 for a six-year term and has extensive legal experience, including drafting and negotiating human rights instruments and treaties for the AU. The decision was announced as the Court, based in Arusha, Tanzania, started its 42nd ordinary session. In addition, Judge Sylvain Ore from Côte d’Ivoire was named president and two new judges were sworn in. The Court is made up of 11 judges from African Union member states and meets four times a year. (Daily Nation)

Israel consents to visit of ICC delegation

Israeli Foreign Ministry spokesperson, Emmanuel Nahshon, has said that an ICC delegation will be allowed to visit Israel in the context of the Court’s preliminary examination into the situation in Palestine. Although the details of the visit are yet to be defined, senior Israeli officials stressed that its ultimate aim will be to engage in a dialogue about the Prosecution’s work, Israel’s legal system and the preliminary examination process. “We have nothing to hide”, said one of the officials, adding that Israel “would be happy to show the court at The Hague how serious, professional and independent the Israeli legal system is”. On 16 January 2015, the Office of the Prosecutor announced thatit was opening a preliminary examination into the situation in Palestine, two weeks after the Palestinian Authority lodged an Article 12(3) declaration, accepting the jurisdiction of the ICC over alleged crimes committed during the 2014 Gaza war, also known as Operation Protective Edge. The preliminary inquiry, which focuses on the alleged crimes committed “in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014”, will allow the Prosecutor to establish whether the Rome Statute criteria for opening a formal investigation are met, taking into consideration issues of jurisdiction, admissibility and the interests of justice. The decision to allow an ICC delegation into the country is unprecedented, as Israel has repeatedly refused to cooperate with external investigators, denying entry to the UN Commission of Inquiry in both 2009 and 2014. It comes only a few weeks after two Palestinian NGOs published a report critising the Israeli Defence Forces for closing 27 cases of suspected war crimes during the 2014 offensive - including the shelling of hospitals and UN shelters - without a single indictment. “This is an additional opportunity to make clear that Israel believes there is no room for the intervention of the Court at The Hague and that it has neither the authority nor the justification to handle the Palestinians’ complaints”, added one of the Israeli officials. (Haaretz, Global Research, The Independent)
ICL Media Review is an independent UK Small Charity, which aims to provide a daily survey of news and developments affecting international criminal law and international human rights in a neutral and impartial manner.

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