In this week’s review, news about Saif Gaddafi’s admissibility challenge, ICC’s decision to revoke Besouda’s visa, human rights concerns on Brunei laws, Ntaganda submissions on Judge Ozaki and more:
ICC PTC rejects admissibility challenge of Saif Gaddafi based on conviction in Libya
On 6 June 2018, Mr. Gaddafi asserted to the Pre-Trial Chamber (PTC) of the International Criminal Court (ICC) that on 28 July 2015, he was convicted by the Tripoli Criminal Court for substantially the same conduct as alleged in the proceedings before the ICC, and further that he was released from prison on 12 April 2018. The argument from Gaddafi being such that the case against him at the ICC as inadmissible. The Defence made submissions that Mr. Gaddafi was detained in Libya from 20 November 2011 and 12 April 2016, and was sentenced to death in July 2015. They argued that this was a decision on the merits of the case which if tried at the ICC would trigger the non bis in idem prohibition.
The PTC rejected the admissibility of the challenge. It reasoned that the trial of Mr. Gaddafi in 2015 was held in absentia which under Libyan law entitles Gaddafi to a new trial which he can attend. Therefore, the Chamber decided this means that the hearing held in Libya was not final, and thus did not support the assertion that Mr. Gaddafi would be tried twice for the same case. The Chamber also took into consideration the issuing of the death penalty by the Libyan Court. These factors led the Chamber to conclude articles 17(1)(c) and 20(3) of the Rome Statute , which cover issues of admissibility, were not satisfied by the Defence, and thus the Mr. Gaddafi’s admissibility challenge was rejected. (PTC Decision)
US revokes ICC Prosecutor, Fatou Bensouda’s visa
The United States of America have revoked the visa of ICC Prosecutor, Fatou Bensouda, after threatening to do so on 16 March 2019. It is speculated that the visa revocation resulted from the ICC’s investigation into possible crimes committed by America and its allies in Afghanistan. US Secretary of State Mike Pompeo suggested visas of other ICC personal may also be revoked or rejected in future. In relation to the Prosecutors visa, Mr. Pompeo said that “If you’re responsible for the proposed ICC investigation of US personnel in connection with the situation in Afghanistan, you should not assume that you will still have or get a visa, or that you will be permitted to enter the United States.” He added that the US would consider economic sanctions against the ICC. In response, the Office of the Prosecutor said the Prosecutor would continue her duties ‘without fear or favour’. (BBC)
New Criminal Law in Brunei Provides for Death by Stoning for Gay Sex and Adultery, Human Rights Group Express Outrage
Human rights groups have condemned new criminal laws in Brunei which impose punishments of death by stoning for anal sex, extramarital sex and abortion, 40 lashes for lesbian sex and amputation for theft. The laws, which are based on Islamic Sharia law, appear to be a continuation of the Prime Minister’s longterm imposition of a restrictive form of Islam on the country. Human Rights Watch has stated that the laws violate international law, which prohibits torture and the use of the death penalty for adultery and homosexuality. Michelle Bachelet, the UN high commissioner for human rights, has called upon Brunei to refrain from capital punishment. However, the Prime Minister’s office has released a statement defending Brunei’s right as a sovereign, independent country to make and enforce its own laws. (New York Times)
Ntaganda Defence Requests Stay of Deliberations Pending Opportunity to Litigate Disqualification of Judge Ozaki
The Defence team for Mr Bosco Ntaganda has requested a temporary stay of proceedings, asking for the opportunity to litigate whether Judge Ozaki should be disqualified from the case. Judge Ozaki’s suitability to continue to preside over the Ntaganda case has been called into question following her decision to accept an appointment as Japanese ambassador to the Republic of Estonia. The Defence submits that there are substantial grounds to believe that the Judge should be disqualified from hearing the case and that allowing the trial to continue could cause irreversible prejudice to the accused’s right to a fair trial. In particular, the Defence raise concerns over Judge Ozaki’s lack of candour regarding her appointment and a potential loss of confidence in her judicial independence. A plenary meeting of ICC judges on 4 March decided that Judge Ozaki may continue to preside over the case, as her ambassadorial appointment does not contravene Article 40(2) of the Rome Statute, which requires that a Judge “not engage in any activity which is likely to interfere with their judicial functions or to affect confidence in their independence.” (Defence Request, ICLMR)
ICC Trial Chamber IX partially grants Ongwen leave to appeal decision on ‘defects series’
On 1 April 2019, ICC Trial Chamber IX partially granted an application by the Ongwen defence team for leave to appeal the Trial Chamber’s Defects in the Confirmation Decision. In its request, the Defence sought leave to appeal two separate issues arising from the Trial Chamber’s Decision of 7 March dismissing four ‘Defect Series’ motions filed by the Defence on 1 February 2019. The first issue concerned the Trial Chamber’s dismissal of arguments related to the formulation of the charges as untimely and without providing sufficient information for its late filing. The Defence sought leave to appeal the dismissal on the basis of respect for the rights of the accused.
The second issue concerned the question of whether dismissing jurisdictional arguments on forced marriage as untimely, is accurate. In its findings, the Chamber considered that the first issue can potentially have a substantial impact on the trial and an immediate resolution by the Appeals Chambers may materially advance the proceedings and therefore granted leave to appeal. The Chamber decided not to grant leave to appeal the second issue concerning jurisdictional arguments. On 1 February 2019, the Ongwen Defence collectively filed four ‘Defect Series’ motions alleging that the Confirmation of Charges Decision suffers various defects. In its submissions, the Defence objected the sufficiency of information included in the Confirmation Decision issued by the Pre-Trial Chamber on 23 March 2016.
The Defence further sought to challenge the jurisdiction of the ICC vis-à-vis the existence of indirect co-perpetration or forced marriage. The Trial Chamber rejected the Defect Series motions in their entirety on 7 March. Relying on Rule 134(2) of the Rules, the Chamber noted that the parties are precluded from raising such challenges for the first time during the trial. Furthermore, the Trial Chamber underscored that by virtue of Rule 134(2) of the Rules, the Defence was required to seek leave to raise the challenges on the formulation of the charges in the Defects Series. For the same reason, the Chamber also dismissed the Defence’s jurisdictional arguments as untimely. (ICC TC Decision)
ICC President calls on US to join court
The President of the International Criminal Court (ICC), Chile Eboe-Osuji, has called on the US to join the Court at a keynote address delivered at the American Society of International Law annual meeting in Washington DC on 29 March. President Eboe-Osuji outlined the historical contribution by the US to the field of international criminal law focusing on the role of Nuremberg Prosecutor Robert H Jackson and the involvement of the US in establishing the ad hoc tribunals and the ICC. President Eboe-Osuji finished by calling on the United States to “join her closest Allies and Friends at the table of the Rome Statute,” and in the meantime, support the Court, “whose values and objectives are entirely consistent with the best instincts of America and her values.” The relationship between the US and the ICC has recently deteriorated, following threats by the Trump administration that it would revoke or deny visas to any members of the court involved in investigating the actions of US forces in Afghanistan or other countries. (ICC)