ICJ Media Review: ICC requests Kazakhstan's cooperation in the arrest and surrender of Omar al-Bashir

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Saturday, September 9, 2017 - 11:14

By ICL Media Review

In this week's review, news about the Ntaganda and a ‘no case to answer’ motion at the ICC, Stanisic, and Simatovic retrial testimony, ICC and Kazakhstan cooperation on Bashir, Burundi CAH and the ICC, an ICTR convict in US Court and more

ICC Appeals Chamber upholds decision to deny Ntaganda right to file ‘no case to answer’

In the case of The Prosecutor v. Bosco Ntaganda ongoing at the ICC, the Appeals Chamber has upheld Trial Chamber VI’s decision to deny Ntaganda the right to file a ‘no case to answer’ motion, and in doing so clarified the ICC’s position on ‘no case to answer’ proceedings. The Appeals Chamber held that, while ‘no case to answer’ procedures are not expressly addressed in the ICC’s legal texts, a “Trial Chamber may, in principle, decide to conduct or decline to conduct such a procedure in the exercise of its discretion,” though the procedure is not “necessarily required” to protect a defendant’s fair trial rights.

Accordingly, the Trial Chamber in the case at hand was not obliged to provide for such a procedure; in arriving at this conclusion, the Appeals Chamber made a point of distinguishing the Court’s legal framework from those of common law jurisdictions – recalling that “the Court’s legal framework combines elements from the Common Law and Romano-Germanic legal traditions” – and emphasized that there were many other ways the Court ensures a defendant’s fair trial rights, including the obligation of the Prosecutor to “investigate incriminating and exonerating circumstances equally” and the need for a Pre-Trial Chamber to “determine whether there is sufficient evidence to establish substantial grounds to believe that the persons concerned committed each of the crimes charged” prior to committing the person concerned to trial.

Thus ultimately the discretion of the Trial Chamber as to whether or not to conduct a ‘no case to answer’ procedure is not limited by internationally recognised human rights or as a result of the adoption of an adversarial trial structure. (ICC Judgment)

Testimony heard in Stanisic and Simatovic retrial

In the retrial of two former leaders of the Serbian State Security Forces, Jovica Stanisic and Franko Simatovic, at the Mechanism for International Criminal Tribunals (MICT), a protected witness has testified that Simatovic had been the “commander-in-chief” of Serbia units that committed crimes against Croats during an attack on the village of Saborsko in 1991. The witness – who was a member of the police in the breakaway Serbian Autonomous Region of Krajina at the time – also specified that defendant Stanisic had acted through his assistant, defendant Simatovic, to arm, train, and control units that expelled and killed Croat civilians from 1990 to 1992.

In response, the defence team of Simatovic pointed out that the witness had no direct information, only hearsay, about who had commanded the attack on the village of Saborsko, and further highlighted that the same witness had previously said that another commander, Martic, had commanded the attack. The witness replied that both Martic and Simatovic had played a part. Stanisic and Simatovic face war crime charges for the alleged persecution, murder, deportation and forcible resettlement of Croat and Muslim civilians in Croatia and Bosnia & Herzegovina between 1991 and 1995. (Balkan Insight)

ICC requests Kazakhstan's cooperation in the arrest and surrender of Omar al-Bashir

The ICC Pre-Trial Chamber has requested the Republic of Kazakhstan to cooperate in the arrest and surrender of Sudanese President Omar al-Bashir should he enter its territory. Al-Bashir has reportedly accepted an invitation to participate in an Organization of Islamic Cooperation Summit in Astana on 7-11 September 2017. The ICC issued arrest warrants for al-Bashir in 2009 and 2010 in relation to allegations he committed genocide, crimes against humanity and war crimes. Kazakhstan is not a State Party to the ICC Statute and so is not obligated to comply with the request. All States were nonetheless urged to cooperate fully with the Court in UN Security Council Resolution 1593. (ICC Court RecordSudan Tribune)

UN Commission of Inquiry recommends ICC action in Burundi 

On 5 September 2016, the UN Commission of Inquiry on Burundi said it had “reasonable grounds to believe that crimes against humanity have been committed and continue to be committed” at “the highest level of the state”. Describing a “climate of fear”, the commission chair Fatsah Ouguergouz stated that the abuses could be considered as a “state policy” and were part of a “general or systematic attack against the civilian population”. Investigators asked the ICC to open an investigation as “as soon as possible”. Burundi’s government powerfully rejected the allegations denouncing UN “mercenaries” in a plot to “enslave African states”.

In 2016, Burundi announced it will withdraw from the ICC as from 27 October 2017, date after which the Court will only be able to open a case “if asked to do so by the Security Council”. Since the beginning of the political crisis in April 2015 – when President Nkurunziza “decided to run for a third term” while his opponents said it was unconstitutional. While estimations are complicated since investigators could not enter Burundi, UN and NGOS estimate that up 2.000 people were killed, more than “400,000 people have fled and dozens of opposition activists have been forced into exile”, and hundreds of cases of torture and extrajudicial killings took place along with sexual violence. From 1993 to 2006, a civil war between majority Hutus and minority Tutsis is meant to have killed 300,000 people. (AljazeeraBBC, Reuters)

Rwanda's government applauds rejection of ICTR convicts appeal in US Court

The Rwanda Government has welcomed the US federal decision rejecting Beatrice Munyenyezi’s appeal for lack of merit. Mrs. Munyenyezi was sentenced in the US to 10-year imprisonment in 2013 for lying on immigration paper about her role in the 1994 Genocide against the Tutsi to obtain the US citizenship. She faces deportation after serving her sentence. She was also an accused and convicted before the ICTR, where she was sentenced to life. Munyenyezi’s husband, Arsene Ntahobali, was sentenced to life imprisonment by the ICTR, along with her mother in law, Pauline Nyiramasuhuko, minister of family welfare and women promotion during the Genocide. Munyenyezi is a “wanted Genocide suspect who played a major role in the 1994 Genocide in the former Butare Prefecture, now Huye District”.

Prosecutors described her as an active member of the National Republican Movement for Democracy and Development (MRND), then ruling party and as a “piece in the machinery” of the Genocide explaining that “she did not carry out the killings but was just as guilty of those crimes because she helped identify Tutsi to be slaughtered at a roadblock outside of her family’s hotel”. Dr Jean Damascene Bizimana, executive secretary of the National Commission for the Fight against Genocide (CNLG) welcomed the US decision as positive move and sounded optimistic that she will be deported like other suspects in the past (Prof. Leopold Munyakazi, Jean Marie Vianney Mudahinyuka, alias Zuzu, Enos Kagaba and Marie Claire Mukeshimana). Bizimana considers that it shows that “US does not accept that those who committed genocide in Rwanda should live freely in the country without facing justice, other countries should emulate this”, a view shared by Johnston Busingye, the Minister for Justice and Attorney General emphasizing the need for judicial cooperation between countries. (New Times)

Sri Lankan government stands behind Ambassador accused of war crimes

Last week, criminal lawsuits were brought by human rights groups in South America (headed by International Truth and Justice Project) against former Sri Lankan army commander, Jayasuriya, for his role in “the final phase of Sri Lanka’s civil war in 2009” during which 40,000 to 70,000 people were allegedly killed. These lawsuits aim to open investigations, remove Jayasuriya’s diplomatic immunity and expel him. In response, the President of Sri Lanka, Maithripala Sirisena, stated he will “not allow anyone in the world to touch Jagath Jayasuriya or any other military chief or any war hero in this country”. Allegations, denied by Sri Lanka’s military, state that Jayasuriya “oversaw military units that attacked hospitals and killed, disappeared and tortured thousands of people”.

The President’s comments are perceived as a “to woo majority ethnic Sinhalese, most of whom oppose action against military personnel accused of crimes in the fight against minority Tamil rebels”. Since 2015 UNHRC joint resolution where Sri Lanka committed to “a judicial mechanism to prosecute those accused of human rights abuses” and to create a new constitution respecting the varied ethnicities and religions, rare progress was made. While the country initially accepted to allow foreign judges, it finally decided “that only local courts could investigate the allegations”. (AljazeeraWashington PostABC News)

Researchers explore motives for rape during conflict

It has been reported that researchers are analyzing views of former rebels in the Congolese conflict. Researchers interviewed 100 former rebels from the Democratic Forces for the Liberation of Rwanda (FDLR) about sexual violence. They obtained two main conclusions. First, if rape, especially during conflict, is considered biologically natural, there are limits. Soldiers said women’ bodies are discussed as a territory, much like the one that they try to conquer through the conflict. Interviews show that ‘classic’ rapes are seen as natural consequences of the conflict in Congo. However, rebels consider that “group rapes, genital mutilation, and rapes of children” are “abnormal”. To them, it indicates that the perpetrator “is mentally disturbed, intoxicated or barbaric”. Second, researchers observed that “race, nationality, and ethnicity are all used to justify or condemn various sexual assaults”.

According to former FDLR rebels interviewed, sexual violence are mostly perpetrated by Congolese described as unable “to resist their biological “urges” and “needs””. Researchers highlight that they are reporting – and not endorsing – the rebels’ perceptions to understand how to prevent sexual violence. They call NGOs and policymakers in the field of sexual violence prevention to pay more attention to “how rumors, prejudices, and stereotypes about different groups of people, along with ideas about what’s “natural” in sexual and gender relations, can be transformed and dismantled”. (Washington Post)

International Rohingya groups call on protection against abuses in Myanmar

The European Rohingya Council and other international Rohingya bodies have asked the international community to invoke their ‘responsibility to protect’ over Rohingya in the Rakhine state of Myanmar. Rohingya, for the first time since October 2016, have come under attack from the Myanmar Armed Forces. The European Rohingya Council has alleged that State Counsellor Aung San Suu Kyi’s government departments “paved the path” towards the violence, by labeling the Rohingya community as “terrorists” or “terrorist sympathisers.”

Additionally, on August 9, 2017, India’s Union Minister of State for Home Affairs, Kiren Rijiju stated in Parliament that the Indian government was firm on deporting all 40,000 Rohingya currently sheltered in India. (News18)

HRW says torture used against political opponents in Egypt

In a report issued on Wednesday, Human Rights Watch (HRW) accused Egyptian security forces of widespread torture of detainees, which the human rights group says it may amount to a crime against humanity. “HRW believes the torture epidemic in Egypt likely constitutes a crime against humanity, due to its widespread and systematic practice,” reads the report. HRW said the report was based on interviews with 19 former detainees who detailed the abuse and torture they were subject to in Egyptian prisons, which also included electrocution and rape. Egypt’s foreign ministry dismissed the report, claiming it was based on undocumented testimonies and that it ignored the steps that the government has taken on human rights and accountability for individuals involved in torture cases. (News24)

Inter-American Commission on Human Rights to draft country report on human rights situation in Venezuela

On Tuesday, the Inter-American Commission on Human Rights (IACHR) announced that it will prepare a third report on the overall human rights situation in Venezuela. The IACHR informed that such decision was made following a comprehensive evaluation of the general human rights situation in Venezuela and of the grave political and social crisis affecting the country, and that it was based on a request from civil society. The report will focus on four main areas: 1) democratic institutions; 2) violence and citizen security; 3) freedom of expression; and 4) impact on economic, social and cultural rights.

The IACHR has already issued two similar reports in 2003 and 2009, and it has continued to closely monitor the deteriorating human rights situation in the country. The organization also claims it has repeatedly asked Venezuela to consent to an in loco visit for the purpose of the report, and that the government has always denied it. In light of this, IACHR reports that it will base its analysis of the overall human rights situation using, amongst other things, information collected through hearings, public sources, petitions and cases system, and responses provided by the state to the IACHR request for information on a number of human rights issues. (Reliefweb)

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