In this week’s review, news about Alfred Yekatom’s transfer to the ICC, the Pre-Trial Chamber’s order for the OTP to reconsider its decision not to investigate the Gaza Freedom Flotilla attack for a second time, submissions in Ntaganda case on closing briefs, Bemba request on frozen assets, the Cambodian Deputy PM on future of ECCC and more:
Bemba requests that ICC Registry unfreeze assets
Jean Pierre Bemba has requested that the ICC Registry unfreeze his assets, which have been frozen for almost ten years while his trial was ongoing. Mr Bemba was acquitted of war crimes and crimes against humanity by the ICC Appeal Chamber in June this year. Defence counsel Peter Haynes submitted that it was unlawful for the court to continue to keep the assets frozen four months after Mr Bemba’s acquittal and that the Registry had not kept an accurate record of his assets. The Registry has claimed that unfreezing his assets will be a complicated process due to the EUR 1.8 million Mr Bemba owes the court for advanced legal fees and the EUR 300,000 fine he was ordered to pay. The fine was part of his sentence for the Article 70 case concerning offences against the administration of justice. This follows an earlier application for the unfreezing of assets which was made in June 2017. (International Justice Monitor)
CAR war crimes suspect Alfred Yekatom transferred to The Hague
On 17 November, the authorities of the Central African Republic (CAR) transferred to The Hague Alfred Yekatom (also known as “Rambo”), who is alleged to have commanded a group of 3,000 members operating within the group called the Anti-Balaka movement. On 11 November 2018, an arrest warrant was issued by Pre-Trial Chamber II which covered alleged crimes committed by Yekatom in locations in CAR including Bangui and the Lobaye Prefecture from December 2013 to August 2014. The crimes were committed within the context of an armed conflict, not of an international character, between two armed groups – the Seleka (a coalition of mostly Muslim armed groups), and the Anti-Balaka (a predominantly Christian armed group opposing the Seleka). The crimes for which Yekatom has been charged relate to “systematic attack[s] was carried out by the Anti-Balaka against the Muslim civilian population and anyone perceived to support the Seleka.”
Yekatom has been charged with the war crimes of “murder, torture and cruel treatment, mutilation, intentional attack against the civilian population, intentional attack against buildings dedicated to religion, enlistment of children under the age of 15 years and their use to participate actively in hostilities, displacement of the civilian population and destruction of the adversary’s property”, and the crimes against humanity of “murder, deportation or forcible transfer of population, imprisonment or other severe deprivation of physical liberty, torture, persecution, enforced disappearance and other inhumane acts.” On 20 November Judge Tomoko Akane issued a decision scheduling Yekatom’s first appearance before Pre-Trial Chamber II to take place on 23 November at 11am.
Following Yekatom’s transfer, the ICC Prosecutor, Fatou Bensouda, issued a statement which included the following message; “To the people of the Central African Republic, I make this pledge: my Office will continue its quest for the truth and to seek justice under the Rome Statute. With firm determination, we are progressing with our investigation into the conduct of all sides.” (Scheduling Decision, ICC Arrest Warrant, ICC Press Release, OTP Press Release, BBC, Jeune Afrique)
ICC Pre-Trial Chamber decides on Comoros’s application for judicial review of OTP decision not to investigate Gaza Freedom Flotilla attack; asks OTP to reconsider again
On 15 November, the majority of the Pre-Trial Chamber I (PTC) of the International Criminal Court (ICC) issued a decision affirming the application for judicial review by the government of the Union of the Comoros. The initial application filed by the Comoros on 23 February 2018 sought judicial review by the PTC over two Decisions made by the Office of the Prosecutor (OTP) on 29 November 2017, that the OTP would not proceed with an investigation of the 2010 raid conducted by Israeli military forces against a humanitarian aid flotilla en route to the Gaza strip.
The PTC found that the OTP is required to comply with its 16 July 2015 Decision to reconsider an investigation. The PTC noted that it is one of the main functions of the Chamber to exercise judicial oversight over the responsibilities of the Prosecutor during the early stages of investigations.
The PTC also found the Prosecutors November 2017 decision not to investigate was not non-reviewable as a ‘final decision’ per Rule 108. However, the PTC found that, in regards to article 53(4), they did not have the power under the Statute to review the Prosecutors decision in this case, and this part of the February 2018 application was dismissed. Nevertheless, the Chamber ordered the Prosecutor to reconsider her 6 November 2014 Decision in accordance with the 16 July 2015 Decision and the five main errors identified therein. The PTC ordered the prosecutor is to reconsider her decision by 25 May 2019. Judge Péter Kovács issued a partially dissenting opinion to the judgment. Judge Kovács accepted the Prosecutors November 2017 decision as being final, and therefore was not eligible for review. Further, the judge noted the 23 February 2018 application should have been dismissed for a lack of standing held by the applicant.
The Union of Comoros referred the situation to the ICC OTP in May 2013, for alleged war crimes and crimes against humanity committed by the Israeli Defence Force. In 2014 the Prosecutor decided there was no reasonable basis to proceed with an investigation into the Israeli raid on the Humanitarian Aid Flotilla. In response, by 16 July 2015, the PTC issued a decision for the OTP to reconsider investigation. On 29 November 2017, the OTP issued its Final Decision reaffirming the decision that preliminary examinations must close, which led to the application in February this year. (ICC-PTC)
Parties in Ntaganda case submit responses to Defence closing brief and closing submissions
On 7 November, a number of new filings were made in the case against Bosco Ntaganda at the ICC. The Office of the Prosecutor (OTP) filed a response to the Defence closing brief and the Defence also filed a response to this response. The Office of Public Counsel for Victims filed both a closing brief and a response to the Defence closing brief on behalf of the Former Child Soldiers. The Common Legal Representative (CLR) of the Victims of the Attacks also filed both a closing brief and a response to the Defence closing brief. The closing briefs from the prosecution and the CLR were filed on 20 April 2018, followed by a corrected version on 8 May 2018. The Chamber granted a filing extension to the Defence on 29 May 2018, and the Defence closing brief was eventually filed confidentially on 2 July 2018, followed by a corrigendum that was filed on 9 July 2018.
In the OTP’s response, the Prosecution submitted that the Defence had misstated the law and the scope of the charges, and made counterarguments that were sparse and unconvincing. The OTP argued that Ntaganda was individually criminally responsible under Article 28 of the Rome Statute. In response, the Defence filed a submission setting out to prove that the allegations against Mr Ntaganda were “unsupported by the evidence, untrue and once they are removed from the equation, the Prosecution’s theory crumbles.”
The CLR’s response to the Defence closing brief addressed matters which related to the interests of the victims he represented “in order to demonstrate the weakness of the Defence’s position”. The Former Child Soldiers response to the Defence Closing Brief insisted that the evidence on the record proved beyond reasonable doubt that Mr Ntaganda was criminally responsible. The Former Child Soldiers, in their own closing brief, also requested that the Chamber find Mr Ntaganda guilty of the war crimes of conscripting and enlisting children and using them to participate actively in hostilities as well as subjecting them to rape and sexual slavery.
Similarly, the CLR’s closing brief reiterated that the evidence showed that Mr Ntaganda bore criminal responsibility for the crimes he committed as a direct perpetrator pursuant to Article 25(3)(a), through his orders and instructions pursuant to Article 25(3)(b), and as a superior pursuant to Article 28(a) of the Rome Statute. (ICC OTP Response to Defense Closing Brief) (ICC Defence Reply to OTP Response to Defence Closing Brief, CLR Response to Defence Closing Brief, ICC Former Child Soldiers Response to Defence Closing Brief, ICC Closing brief for CLR, ICC Former Child Soldiers Closing Brief)
Cambodian Deputy PM Claims Work of ECCC has concluded
Deputy Prime Minister of Cambodia, Sahr Kheng, announced that the ECCC, which handed down convictions of top Khmer Rouge leaders Nuon Chea and Khieu Samphan last week, will not be undertaking any further prosecutions, though it will hear appeals of those recently convicted. Mr Kheng referred in his announcement to the terms of reference of the Tribunal, which empower it to prosecute only senior leaders and those most responsible for atrocities that occurred under the regime. The prosecution has prepared cases against four mid-ranking leaders of the Khmer Rouge regime, however, the Deputy PM’s statement questions whether those will progress further. It is reported that other former Khmer Rouge members have also been reassured by Mr Kheng that they will not face prosecution. Prime Minister Hun Sen, a former mid-level commander in the Khmer Rouge, has repeatedly indicated that no further prosecutions would occur, as they could cause unrest. (The Guardian)
MICT President Meron Challenges Serbian Prime Minister’s Denial of Genocide in Srebrenica
The President of the UN International Residual Mechanism for Criminal Tribunals (MICT), Theodor Meron, has challenged Serbian Prime Minister, Anna Brnabic’s statement that the crimes committed in Srebenica were not genocide where 7,000 Bosniaks were killed by the Bosnian Serb Army in the 1995 attack. While Brnabic acknowledged that a ‘terrible massacre’ occurred at Srebrenica, she said in an interview with German program Deutsche Welle that she did not believe it was genocide. Meron’s response noted that the ICTY clearly established in several judgments that the crimes committed in Srebrenica constituted the crime of genocide. Ratko Mladic and Radovan Karadzic were both convicted of genocide by the ICTY, and the ICJ has also made the finding that the massacres in Srebrenica constitute genocide. Meron expressed “disagreement and disappointment” with Brnabic’s statement and suggested that “legal interpretations of international crimes better be left to international criminal tribunals”. (Balkan Insight)
Minister indicates Malaysia may join the ICC
The Malaysian Human Resources Minister, Mr Kula Segaran, has indicated that Malaysia may ratify the Rome Statute of the International Criminal Court (ICC). Mr Segaran made the announcement in a speech to 10th Consultative Assembly of Parliamentarians of the ICC and the Rule of Law (CAP-ICC) and the 40th Annual Forum of PGA in Kyiv, Ukraine, on 17 November. Mr Segaran was speaking in his capacity as chairman of the Parliamentarians for Global Action (PGA) Malaysia, a non-profit, international network of legislators. Mr Segaran expressed particular regret that Malaysia had not ratified the Rome Statute in 2014 following the downing of flight MH17. He did not specify an exact time-frame but indicated Malaysia was expected to ratify the statute “soon.” (New Straits Times)
Rights Group Accuses Abu Dhabi Crown Prince of War Crimes, Complicity in Torture and Inhumane Treatment in Yemen
The human rights group “International Alliance for the Defense of Rights and Freedoms” has filed a law suit in a domestic court of France against the Crown Prince of Abhu Dhabi, Sheikh Mohammed bin Zayed al-Nahyan, for his alleged role in ordering bombings in Yemen which killed civilians. The Prince is accused of war crimes, complicity in torture and inhumane treatment. The complaint references evidence from UN experts on possible war crimes and acts of torture, and evidence from human rights groups on arbitrary detentions and the use of illegal cluster bombs. French prosecutors are currently reviewing a similar complaint filed in April against the Saudi crown prince, starting a legal process which is likely to last years. (Reuters)