In this week’s review, news about responses to Bemba’s claim for compensation, Bensouda’s address on Libya to the UNSC, MICT investigation into Karadzic’s participation in a public event, the AC Bashir / Jordan decision and more:
Prosecution and Registry respond to Bemba’s claim for compensation and damages
On 6 May, the Registry and the Office of the Prosecutor (OTP) submitted their own responses to Pre-Trial Chamber II of the International Criminal Court (ICC), on the Bemba compensation claim amounting to EUR 42.4 million. The basis of Bemba’s claim was a perceived grave miscarriage of justice during his trial, as well as negligent mismanagement of his seized assets while he was imprisoned. The OTP submitted that Mr. Bemba failed to establish that a grave miscarriage of justice occurred for four core reasons. First, Mr. Bemba has used the compensation hearing as a venue to repeat arguments already ‘ventilated’ at trial. Second, the OTP noted how Mr. Bemba had failed to show how a grave and manifest miscarriage of justice had occurred within the meaning of article 85(3) of the Rome Statute, given that Mr. Bemba’s was acquitted on appeal. Third, Mr. Bemba’s submissions are factually incorrect and based on an inaccurate view of the trial record. Finally, Mr. Bemba’s claim does not meet the high threshold for a compensation claim under the Rome Statute and should be dismissed in limine.
The OTP went on to explain how though Mr. Bemba’s claim argued the case against him was ‘error-strewn’ no such errors were articulated in his submissions. Similarly, the Registry argued that the legal framework of the Court does not support Mr. Bemba’s claim. The Registry noted that it acts as a means of communication between states and the Court, and that frozen assets or seizures occur according to national laws. As such there was no responsibility for the Court to manage Mr. Bemba’s assets during his trial. The Registry also argued in the alternative that for the Chamber to contemplate a claim of damages, further submissions would be needed, and the states where assets were located would need to be considered as participants to the proceedings. (ICC-OTP, ICC-Registry)
ICC Prosecutor addresses UN Security Council on Libya situation
On 8 May, ICC Prosecutor Fatou Bensouda gave her seventeenth address to the United Nations Security Council on the situation in Libya. She noted the ongoing and increasing violence in the country and that the ICC was continuing to assess whether crimes within the jurisdiction of the ICC may have been committed. The Prosecutor urged civilian and military commanders in Libya to avoid committing Rome Statute crimes. The Prosecutor also updated the Security Council on the case of Saif Al-Islam Gaddafi. Stating that the Pre-Trial Chamber on 5 April 2019, found the case against Mr. Gaddafi admissible.
Quoting the Chamber, the Prosecutor stated that granting amnesties for serious acts which constitute crimes against humanity is incompatible with human rights, and denies victims the right to truth, access to justice, and reparations where appropriate. The Prosecutor noted that there are outstanding warrants for Al-Tuhamy Mohamed Khaled and Mahmoud Mustafa Busayf Al-Wefalli. She stated how their remaining at large sends a message to victims that alleged perpetrators can evade justice and continue to commit crimes with impunity. Ms. Bensouda called on the Security Council to giving its clear and vocal support to the apprehension of these suspects. The Prosecutor concluded that “…my Office’s progress in the Libya situation is frustrated, and confidence in the ICC is undermined when, year after year, warrants of arrest remain unexecuted. The credibility of this Council is also tarnished if it fails to take concrete measures to secure the arrest and surrender of suspects.” (ICC-OTP).
MICT investigates Karadžić for taking part in event from cell
Radovan Karadžić is being investigated for using a phone without authorisation to participate in a public event in Podgorica, Montenegro. Mr Karadžić is currently in the UN detention unit in The Hague, where he is awaiting transfer to a host country to serve his life sentence. The phone call was made without prior approval from the detention’s commanding officer. MICT Registrar Olufemi Elias announced that the MICT is investigating the phone call. Mr Karadžić’s defence counsel, Peter Robinson, confirmed his client took part in a public discussion in Podgorica, but said that he understood that Mr Karadžić had used the opportunity to send a message of tolerance. On 20 March 2019, the MICT Appeals Chamber upheld all of Radovan Karadžić’s convictions on appeal and imposed a longer sentence of life imprisonment. Mr Karadžić was convicted of genocide, crimes against humanity and violations of customs of war through participation in a joint criminal enterprise. He was held to be responsible for some of the acts of his subordinates in the Srebrenica genocide. (The Guardian, BBC)
ICC partly reverses Jordan Al-Bashir decision
On 6 May, the Appeals Chamber of the International Criminal Court (ICC) released its decision on the appeal of the Hashemite Kingdom of Jordan in the case of Mr Omar Al-Bashir. The Appeals Chamber confirmed the Pre-Trial Chamber II’s (PTC) original decision to the extent that it found that Jordan had breached its obligations under the Rome Statute to arrest Mr Al-Bashir in 2017. It held that the removal of head of state immunity as a bar to the ICC’s jurisdiction under Article 27 of the Rome Statute represented the status of customary international law. It therefore concluded that head of state immunity did not apply to international courts as a matter of customary international law. Thus, it held that head of state immunity was not applicable in the situation where Jordan, as a state party to the Rome Statute, had been requested to arrest a head of state, when Sudan was under an obligation to cooperate fully with the Court following a UNSC Resolution.
However, the Appeals Chamber decided, by majority, to reverse the PTC’s decision to refer the matter of Jordan’s non-compliance to the Assembly of States Parties and the United Nations Security Council. The majority concluded that the PTC had erroneously exercised its discretion in referring Jordan’s non-compliance to the ASP and UNSC, based on an incorrect conclusion that Jordan had not sought consultations with the Court. The dissenting judges, Judge Ibañez and Judge Bossa, would have characterised the referral differently, holding that it was not a punitive measure but instead a means of encouraging cooperation with the ICC. As a result, they would have held that the PTC’s discretion was exercised appropriately. Mr Al-Bashir was overthrown as President of Sudan on 11 April 2019 after months of protests. He is the subject of two ICC warrants concerning war crimes, crimes against humanity and genocide alleged to have been committed in Darfur, Sudan from 2003 to 2008. Since his fall from power there has already been a public campaign among Sudanese people calling for his surrender to the ICC. (ICC press release, Reuters)
Al-Mahdi transferred to prison in Scotland to serve nine year sentence
On 3 May, the Presidency of the International Criminal Court (ICC) announced that Mr Ahmad Al Faqi Al-Mahdi was transferred to Scotland to serve his sentence of imprisonment on 29 August 2018 under Article 103 of the Rome Statute, the Court’s founding treaty, and the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the International Criminal Court on the enforcement of sentences imposed by the International Criminal Court. Mr Al-Mahdi’s transfer was not immediately announced in consideration of his safety and security. Mr Al-Mahdi was the first accused before the ICC to plead guilty. He was convicted on 27 September 2016 for the war crime of intentionally directing attacks against religious and historic buildings in Mali, in June and July 2012 and sentenced to nine years’ imprisonment. (ICC Press Release)
Remains of Nearly 85,000 Genocide Victims Finally Receive Burial in Rwanda
The remains of 84,437 victims of the Rwandan genocide were buried last Saturday at the Nyanza Genocide memorial in the capital, Kigali. The burials occurred during the 100 days of mourning that begins in Rwanda every April 7, to commemorate the 100 days of violence that took 800,000 lives in 1994. The remains were found last year when 143 pits containing bone and clothing fragments were discovered beneath homes on the outskirts of Kigali. The remains buried on Saturday came from the 43 pits that have been exhumed so far, with 100 still to be done. (Africa News)
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