In this week’s review, news about the ICC Appeals Chamber’s Bemba et al., appeals judgments on conviction and sentence, the Katanga and Al-Mahdi decision on appeal of the Reparation Orders, the Special Tribunal for Lebanon Trial Chamber’s decision on Oneissi’s Rule 167 application for acquittal, the ECCC’s decisions on the fitness of Samphan and Chea, UNHCHR’s last speech to the UNHR Council, and more
Bemba et al., Appeals Judgment; convictions on presenting false evidence overturned, and some sentences reserved and remanded to Trial Chamber
On 8 March, the Appeals Chamber of the International Criminal Court issued two Judgments on appeal of both the convictions and sentences in the case of The Prosecutor v. Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido. In its Judgment on appeal of conviction, the Appeals Chamber overturned the conviction and acquitted three of the accuseds, Mr. Bemba, Mr Kilolo and Mr Mangenda, of presenting false evidence under Article 70(1)(b) of the Rome Statute. This acquittal was rendered under the reasoning that presenting false or forged evidence only applies to documentary evidence and not evidence in the form of witness testimony, as they were convicted.
All other points of appeals submitted by the accuseds to the Judgment during trial were dismissed by the Appeals Chamber, making the convictions final. In its Judgment on sentence, the Appeals Chamber remanded the decision on sentences to the Trial Chamber for a new determination in relation to Mr Bemba, Mr Mangenda and Mr Kilolo after finding that the Trial Chamber made several errors in regards to their sentences. The Appeals Chamber found errors in the Trial Chamber’s assessment of gravity in regards to the sentences imposed, and found that the Trial Chamber did not have the power to impose suspended sentences. A summary of both Appeals Judgments was released, with a public version of the full decision from the Appeals Chamber still awaited. (Summary of ICC AC Judgment on Convictions, Summary of ICC AC Judgment on Sentences)
ICC Appeals Chamber rejects Katanga’s appeal on the reparations order
On 8 March, the Appeals Chamber delivered its Judgment on appeal of the Reparations Order, delivered by Trial Chamber II on 24 March 2017, in the case against Germain Katanga. The Appeals Chamber dismissed the appeals of Mr. Katanga and the OPCV, and largely confirmed the Reparations Order; save for an amendment concerning several victims’ reparations. Addressing an appeal brought by the Legal Representatives for Victims, the Appeals Chamber reversed the part of the Reparations Order which rejected the applications of five victims claiming reparations for ‘transgenerational harm’ which was suffered by their parents during the attack. In order to decide whether the five victims should be awarded reparations, the Appeals Chamber ordered that the Trial Chamber reassess the causal nexus between the crimes for which Mr. Katanga was convicted and the psychological harm suffered. The Appeals Chamber also noted concern for the approach taken by the Trial Chamber for calculating harm, noting that it causes significant delays but that the approach adopted “did not amount to an error of law or abuse of discretion that would justify the reversal.” In noting its concern, the Appeals Chamber offered that “[r]ather than attempting to determine the “sum-total” of the monetary value of the harm caused, trial chambers should seek to define the harms and to determine the appropriate modalities for repairing the harm caused with a view to, ultimately, assessing the costs of the identified remedy.” The Appeals Chamber issued a public summary of the Judgment, but has yet to release a full decision. (Summary of ICC AC reparations judgment)
ICC Appeals Chamber confirms Al-Mahdi reparations order; amends victim anonymity options
The Appeals Chamber on 8 March delivered its Judgment on appeal of the Reparations Order of Trial Chamber VIII of 17 August 2017 in the case against Ahmad Al Faqi Al Mahdi. The Appeals Chamber largely affirmed the Reparations Order but reversed two aspects of the decision concerning the role of the Trust Fund for Victims (TFV) and victim anonymity. In doing so, the Appeals Chamber affirmed that the Trial Chamber may request the assistance of the TFV in screening victims who could potential be beneficiaries to reparations during this phase of the proceedings. However, in affirming that the TFV could participate in such a capacity if requested by the Trial Chamber, the Appeals Chamber amended the Trial Chamber’s Reparations order by confirming the right of the victims to contest before the Trial Chamber a decision of the TFV on their eligibility for reparations, and the ability of the Trial Chamber to review of such decisions by the TFV proprio moto. The Trial Chamber also amended the Reparations order in regards to the anonymity of victims, deciding that victims may shield their identity from Mr. Al-Mahdi during the reparations process and still be eligible to receive reparations, as long as their identity is disclosed to the TFV. (ICC AC reparations judgment)
Special Tribunal for Lebanon Trial Chamber dismisses Oneissi Defence’s application for acquittal in Ayyash et al. case
In an oral decision delivered on 7 March 2018, the Special Tribunal for Lebanon (STL) Trial Chamber dismissed the Oneissi Defence Rule 167 application for acquittal. The Trial Chamber found that at this stage of the proceedings – after the close of the Prosecution case, following Rule 167 of the STL Rules of Procedure and Evidence – it is satisfied the Prosecution provided sufficient evidence to show there is a case for Mr Oneissi’s defence to answer on all counts. Mr Oneissi is charged with conspiring to commit a terrorist act, being an accomplice to a terrorist act with an explosive device, being an accomplice to the intentional homicide of Rafik Hariri with 21 others and to the attempted homicide of 266 people with premeditation using explosive materials. The Trial Chamber found in relation to each of the counts that there is sufficient evidence on which it could convict Mr Oneissi. Specifically, the Chamber concluded that when taken cumulatively, the evidence is sufficient to prove that the assassination of Mr Hariri with 21 others and injuring 226 people was a terrorist act. The Chamber established that actions taken by Mr Oneissi, specifically the alleged preparation of the delivery of the false claim of responsibility and his alleged role in the recruitment of Ahmad Abu Adass to shield the perpetrators, could form an important part of the conspiracy to commit a terrorist act. Even though the Chamber accepted the evidence is circumstantial in nature, it argued that by inference from the totality of the evidence, it could conclude Mr Oneissi had the knowledge and was aware of the nature of the crimes as an accomplice. In reaching its decision, the Chamber referred to the complex body of telecommunication data, expert evidence as well as witness statements adduced by the Prosecution over the course of the Trial and found its legal support in the Lebanese Criminal Code, Lebanese law and the provisions of the STL Appeals Chamber Interlocutory Decision on applicable law. This ruling does not constitute a pronouncement of the guilt of Mr Oneissi. The test under Rule 167 differs from the requirement to prove the guilt of the accussed beyond reasonable doubt necessary for conviction. As the Trial Chamber stressed in its decision, it is yet to assess strength and weight of the evidence produced by the Prosecution. The Defence teams are scheduled to hold a pre-Defence conference on 8 March 2018 and will present their respective Defence cases in due course. (STL Press Release, Reuters, Naharnet)
Cambodia tribunal issues decisions on fitness of Nuon Chea and Khieu Samphan to stand trial
On 27 February, the Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) issued two decisions finding both Nuon Chea and Khieu Samphan fit to stand trial in Case No 002/02. The Chamber renewed its orders that the cognitive function of each accused continue to be tested at least every three months. The experts appointed by the Chamber opined that Chea’s cognitive function was in the normal range, and that his lower back pain and dizziness did not affect his ability to stand trial. The experts found that Khieu had no mental or cognitive problems that would affect his ability to exercise the necessary capacities outlined in the Strugar case, nor did he have any physical health problems that would affect his ability to stand trial. (Decision on Fitness of Khieu Samphan, Decision on Fitness of Nuon Chea)
UN High Commissioner Prince Zeid, gives last address to UN Human Rights Council
Prince Zeid bin Ra’ad, the current UN High Commissioner for Human Rights, has given his final address to the United Nations Human Rights Council. Referencing ongoing conflicts in Syria, DRC, Yemen, Myanmar and Burundi, Zeid heavily criticised the UN Security Council’s permanent members. He stated, “second to those who are criminally responsible- those who kill and maim- the responsibility for the continuation of so much pain lies with the five permanent members of the UN Security Council”. Prince Zeid did however commend France for their efforts to impose a code of conduct for the use of the UN Security Council veto. Prince Zeid reached the end of his four-year term, and has chosen not to seek a second appointment. (CoalitionfortheICC, Guardian).
Human Rights Council calls for International Commission of Inquiry on Syria into Eastern Ghouta events
On 5 March 2018 the Human Rights Council adopted a resolution requesting that the International Commission of Inquiry (ICI) conduct an inquiry into the situation in Eastern Ghouta, Syria. The resolution also called for full implementation of the Security Council’s proposed 30 day ceasefire, and for all parties to allow the safe passage of all people in need and the facilitation humanitarian aid. References to war crimes and crimes against humanity were removed from the final text of the resolution. The resolution was passed with 29 votes in favour, 14 abstentions and four opposed. The ICI will first need to have its mandate extended in a vote to be held later this month. (OHCHR, Anadolu Agency)
Duterte orders police and soldiers not to cooperate with ICC Preliminary Examination
On 1 March, President Duterte of the Philippines responded to calls for international investigations into his policies concerning an anti-narcotics campaign which has resulted in a high number of alleged extrajudicial killings by police, by instructing local law enforcement to not cooperate. Duterte has ordered Filipino police and soldiers not to cooperate with the recently opened ICC Preliminary Examination, saying that they should not answer any questions. Overall, Duterte is quoted as saying ““When it comes to human rights, or whoever rapporteur it is, my order to you: do not answer. Do not bother.” Reports state that Duterte was open to cooperating with a UN investigation but only if the UN’s current special rapporteur on extrajudicial killings, Agnes Callamard, was not involved. Following President Duterte’s election in June 2016, there have been 4,000 killings perpetrated by police in the Philippines, and hundreds of other killings committed by unknown gunmen. As a result, the ICC has launched a Preliminary Examination into the killings. (TheGuardian).
ECOWAS Court and African Court sign MOU on Protection of Human Rights
On 1 March 2018, the Economic Community of West African States (ECOWAS) Court and the African Court on Human and Peoples’ Rights signed a memorandum of understanding (MOU) intended to strengthen the protection of human rights in Africa. Under the MOU, both courts agreed to a number of initiatives including the sharing of information and research, cooperating on joint projects and establishing a Joint Committee that would ensure the effectiveness of cooperation between the courts. This agreement comes as part of a three-day working visit by ECOWAS Court judges to various courts established in Arusha, Tanzania. (ECOWAS Court, African Court, AIT Online)
Photo: President Rodrigo Duterte