ICJ Media Review: ICC Trial Chamber finds South Africa in non-compliance but will not refer to UNSC

Saturday, July 8, 2017 - 00:00

By ICL Media Review

ICC Trial Chamber finds South Africa in non-compliance but will not refer to UNSC

On 6 July 2017, the ICC Pre-Trial Chamber issued a unanimous decision on South Africa’s compliance with the Rome Statute as a result of Sudanese President Omar Al-Bashir’s visit to the country in June 2015, and South Africa’s failure to arrest Al-Bashir during his visit.  The Pre-Trial Chamber decided that South Africa failed to comply with its obligations as a State Party to the Rome Statute by not arresting Al-Bashir, but decided to refrain from referring South Africa’s non-compliance to the UN Security Council and Assembly of States Parties.  The Chamber addressed the issue of head of state immunity in its decision, finding that because the Sudan situation was referred to the Court by the UN Security Council, Sudan is in the same position as a State Party, and therefore head of state immunity under customary international law did not apply. 

It similarly found that the Host Agreement for the African Union Summit, under which Al-Bashir was invited to the Summit, is not applicable when an ICC warrant is outstanding.   For this reason, it found that State Parties, i.e. South African, are under an obligation to execute an arrest warrant for an individual who is present on its territory, and South Africa failed to uphold this obligation.  The Pre-Trial Chamber, however, found that referral was unnecessary as it is unnecessary to achieve cooperation from South Africa where its domestic courts have already made a finding against the Government’s actions in this case, and as a result of South Africa’s efforts to obtain a legal determination from the Court on its obligations.  Although the decision was unanimous Marc Perrin de Brichambaut issue an independent opinion. (ICC-CPI)

Bemba defence team makes pre-emptive application on frozen assets

In the case of The Prosecutor v. Jean-Pierre Bemba Gombo before the Appeals Chamber of the ICC, the Defence team has submitted an application to lift the freeze ordered by Trial Chamber III regarding specific assets. In March, Trial Chamber VII ordered that Bemba pay a fine of 300,000 euros within three months, based on the Registry’s calculation of the value of his assets. Trial Chamber III had previously frozen certain assets belonging to Mr. Bemba.

Accordingly, the Defence has now issued this application pre-emptively on the basis that many of Bemba’s assets are currently frozen or not easily liquidated (such that it may take time to make some assets free) – they are therefore asking the Appeals Chamber to clarify if they would be in breach of Trial Chamber III’s freezing order if they request Bemba’s DRC bank to disclose the exact amount in his account, furthermore to take such steps as are necessary to ensure the availability to the Court of the funds in this account, in the event that the fine is upheld on appeal. Notably, this Defence application is pre-emptive because the execution of the 300,000 euro fine is suspended due to the Defence appeal against Bemba’s conviction and sentence. (ICC Court Filing)

UN Sec-Gen appoints head of investigation panel for Syria

On 3 July 2013 UN Secretary-General Antonio Guterres announced the appointment of Catherine Marchi-Uhel – a French judge with extensive experience in the judiciary and in public service, including in the fields of criminal law, transitional justice and human rights – as the first head of the independent panel to assist in the investigation and prosecution of those responsible for most serious violations of international law in Syria (often referred to as “the Mechanism”).

The Mechanism was established by the UN General Assembly in December 2016. Marchi-Uhel has served as the Senior Legal Officer and Head of Chambers at the ICTY, as an international judge at the UN Interim Administration Mission in Kosovo and the Extraordinary Chambers in the Courts of Cambodia (ECCC), and within the French Ministry of Foreign Affairs as well as UN peacekeeping missions. (UN News Centre)

FIDH announces submission of joint communication to ICC on crimes against humanity in Mexico

The International Federation for Human Rights (FIDH) have announced that, together with several Mexican organisations, it will submit a joint communication to the Prosecutor of the ICC requesting that the OTP open a preliminary examination into crimes allegedly committed in the Mexican state of Coahuila between 2009-2016. The report is based on investigative and legal work compiled with the support of over 100 Mexican organisations.

The report documents cases of, inter alia, arbitrary detention, torture and enforced disappearance which are alleged to amount to crimes against humanity committed against the civilian population of Coahuila. Mexico ratified the Rome Statute in 2005, and the report alleges that the lack of investigations underway in Mexico and the nature of the reported crimes make opening an investigation at the ICC imperative. (FIDH Press Statement)

ICC Trial Chamber rejects Bemba request for leave to appeal decision on reparations experts

On 29 June 2017, the Trial Chamber of the International Criminal Court rejected Bemba’s request for leave to appeal the Trial Chamber’s decision appointing experts to assist in the reparations proceedings. The Defence took issue with the extent of the orders in view of Bemba’s extant appeal against conviction and with the timetable ordered for submissions.

The Defence raised three issues on appeal including whether the Trial Chamber erred in 1) requiring Bemba to file submissions on reparations before issuance of an Appeal Judgment; 2) requiring Bemba to file submissions before knowing the scope of his conviction; and 3) setting a timetable which prevented Bemba from making meaningful submissions by, for example, instructing his own experts.  The Trial Chamber found that none of the matters raised were appealable issues within the meaning of Article 82(1)(d) of the Rome Statute because the issues did not raise legal or factual errors by the Trial Chamber or were not issues arising from the impugned decision. (ICC TC Decision)

ICC Judges visit Auschwitz-Birkenau

On 24 June 2017 the Judges of the International Criminal Court visited the Auschwitz-Birkenau concentration camp following a conference in Krakow, Poland. The purpose of the judges’ retreat was to improve appeals proceedings with a view to enhancing efficiency. (ICC Press Release)

Investigation claims fresh evidence of war crimes by UK soldiers

On 1 July 2017 it was reported that a Royal Military Police investigation gathered evidence that, between 2010 and 2013, members of the British Special Air Service (SAS) killed unarmed Afghan civilians and concealed the evidence. Many of the incidents appear to have occurred during night raids against suspected Taliban insurgents. The inquiry is set to conclude in the coming months, with a significant number of cases to be concluded or discontinued. The Ministry of Defence stated that the investigators had found no evidence of criminal behaviour by British armed forces in Afghanistan. The ICC is currently conducting a preliminary examination into crimes committed in Afghanistan by soldiers from the United Kingdom.  (The Times, Evening Standard, The Australian

Photo: ICC-CPI and fidh/Twitter 


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