In this week’s review, news about Bemba’s claim for compensation, dismissal of Ongwen’s defect series, Kwoyelo’s request for ICC transfer, ICC OTP in Bangladesh, South Sudan accountability and human rights and more
Bemba seeks compensation from ICC
The defence in the matter of the Prosecutor v Jean Pierre Bemba Gombo has filed a claim for compensation and damages against the International Criminal Court (ICC). In submissions filed before Pre Trial Chamber II, the defence first claims under the ICC’s power under Article 85 of the Rome Statute to award compensation in the event of a “grave and manifest miscarriage of justice.” The defence also seeks compensation for the loss arising out of the seizure of property, either under Article 85 or as a result of liability arising out of the Court’s duty to properly manage those assets.
Regarding the first part of Mr Bemba’s claim, the submissions point to various errors in the Bemba trial judgment and issues in the way the case was conducted, arguing that these factors together amount to a miscarriage of justice. For example, the defence argues that there were errors in 8.3% of the evidence citations, which demonstrate a pattern of mismanagement of the trial process which resulted in a miscarriage of justice. The defence also argues that the prosecution dropped one investigation and instead presented a case based on command responsibility that was not based on evidence. It submits that this case should have been dropped in the first place but was not due to the prosecutor’s focus on charges against Mr Bemba.
The submissions also set out the basis on which compensation should be measured, referring to Rule 175 of the Rules of Procedure and Evidence. The defence claims damages for Mr Bemba’s incarceration over ten years resulting in loss of liberty and injury to feelings, aggravated damages as a result of the Prosecutor’s refusal to avow that the detention was false imprisonment, and consequential loss as a result legal costs and property that was damaged, devalued or destroyed.
Regarding the second part of the claim on the mismanagement of Mr Bemba’s assets, the defence submits that the Court did not take any steps to manage or preserve the value of Mr Bemba’s assets and as a result was negligent in the handling of those assets. Mr Bemba seeks EUR 42.2 million in compensation with regards to this claim. Mr Bemba was convicted on 21 March 2016 by Trial Chamber III of the ICC for war crimes and crimes against humanity allegedly committed in the Central African Republic between 2002 and 2003. This conviction was overturned by the Appeals Chamber on 8 June 2018. (ICC)
ICC TC dismisses Ongwen ‘defects series’ on concerning confirmation process
The International Criminal Court’s Trial Chamber has dismissed, ICC accused, Dominic Ongwen’s request that the trials confirmation process be dismissed. The Chamber dismissed the request as it did not meet the requirements of Rule 134(2) of the Courts Rules of Procedure and Evidence and thus was untimely. Rule 134(2) provides that at the beginning of the trial the Court shall ask the Defence and Prosecution to make objections or observations regarding the Confirmation hearing. Such observations or objections may not be made later in the proceedings without leave from the Chamber. Further, the Trial Chamber noted it does not have appellate jurisdiction over decision of the Pre-Trial Chamber. On 1 February 2019, the Defence filed four motions alleging that the Confirmation of Charges Decision suffered from ‘serious defects’. It was requested that the Chamber dismiss the charged modes of liability (direct perpetration and indirect co-perpetration), as well as all allegations under the charged modes of liability (command reasonability and common purpose liability) , in addition to the charges of persecution, forced marriage and enslavement as crimes against humanity, and conscription and use of children under the age of 15 in war, as war crimes. Amongst this, the Chamber found the Defence made no clear application to be granted leave per Rule 134(2) nor did it provide sufficient reasons as to why this challenge was raised two years after the commencement of the trial. (ICC TC Decision)
UN Investigators Say Western Congolese Massacres May Amount to Crimes Against Humanity
UN investigators have published a report on atrocities in the Democratic Republic of the Congo, which reveals that around 19,000 people have become displaced due to the violence, at least 900 people have been killed and almost 1,000 buildings destroyed. The attacks were reportedly committed by villagers of the Battened ethnic group against villagers in the Banunu community after a dispute over the burial of the Banunu Chief. Investigators have said that the atrocities could amount to the crimes against humanity of murder, torture, rape and other forms of sexual violence, as well as persecution. (New York Times)
Former LRA Commander Kwoyelo asks for his case to be transferred to the ICC due to delays in proceedings
During the hearing on 11 March 2019, Thomas Kwoyelo requested Uganda’s International Crimes Division (the ‘ICD’) in Gulu to transfer his case to the ICC. Mr Kwoyelo argued that due to delays in the proceedings, which have been ongoing for 10 years, his access to justice has been severely denied. Mr Kwoyelo, a former commander of the Lord’s Resistance Army (‘LRA’) is facing 93 charges of war crimes and crimes against humanity allegedly committed between January 1995 and December 2005. Mr Kwoyelo has been in detention since 2008. His initial appearance before the ICD took place in 2011. The hearing on 11 March 2019 before the ICD in Gulu was preceded by a series of postponements. His initial appearance in 2011 was delayed due to questions over the applicability of amnesty law. The Supreme Court denied this applicability in 2015. Even though the confirmation of charges hearing was initially scheduled to take place in 2016, it was only in August 2017 that the 93 charges against Kwoyelo were confirmed.
However, due to problems like lack of quorum in the defence lawyers and the lack of funding, the main phase of the trial only began on 24 September 2018. On 4 November 2018, the defence applied for bail due to the years already spent in detention as well as the fact that Mr Kwoyelo was a child when he was abducted by the LRA. Lack of translation of the indictment to Acholi language, availability of the sureties and preparedness of the Prosecution for the opening statements led to a further series of adjournments. The trial, together with the hearing on bail, finally happened on 11 March 2019. During the hearing, the Prosecution objected to Mr Kwoyelo’s request to transfer the case to the ICC on procedural grounds and the appropriateness of such request within the framework of the Rome Statute. Besides the request, defence counsel, as well as counsel for victims, made complaints about the lack of funding and assistance provided by the government. In counsel’s view, the lack of remuneration supports the application for the transfer: “If the government cannot support him, then it doesn’t support complementarity and that is why I support the view of him being transferred to the ICC.” Due to the lack of assistance, counsel for the victims threatened to withdraw from the case. The hearing of the bail application was deferred until 20 March 2019 and the proceedings will continue in the ICD in Gulu.(International Justice Monitor)
ICC OTP concludes first visit to Bangladesh for preliminary examination on Rohingya Muslims
A delegation from the ICC Office of the Prosecutor has concluded its first visit to Bangladesh. The visit was part of the OTP’s ongoing process of preliminary examination of the alleged deportation of the Rohingya people from Myanmar to Bangladesh. The delegation met with a number of stakeholders, including senior officials from judiciary, government and law enforcement agencies, humanitarian agencies active in the country and members of the diplomatic community. In view of the OTP’s ongoing assessment, the delegation visited the refugee camp in Cox’s Bazar and met with several representatives of the victims. Unlike during the investigations phase, the members of the OTP did not collect evidence or engage in other investigation activities. Preliminary examination serves as a baseline for the assessment of criteria enshrined in the Rome Statute to decide whether an investigation into the situation is warranted. Under Article 53(1) of the Rome Statute, the Prosecutor must consider issues of jurisdiction, admissibility and the interests of justice in making its determination. The Chief of the ICC’s Jurisdiction, Complementarity and Cooperation Division (‘JCCD’) Phakiso Mochochoko told reporters in Bangladesh that the preliminary examination would be “all about individual responsibility.” The statement hinted that the examination will be directed towards those perpetrators who allegedly gave instruction, those in command, direct perpetrators and those who facilitated the commission of the alleged crimes. The ICC Prosecutor decided to open the preliminary examination into the alleged deportation of the Rohingya people from Myanmar to Bangladesh in September 2018. (ICC Press Release, France24)
Commission on Human Rights in South Sudan Urges Accountability for Perpetrators of War Crimes & Crimes Against Humanity
The Commission on Human Rights in South Sudan has stated that Courts outside South Sudan have jurisdiction to try South Sudanese individuals, who have been identified by investigations as possibly bearing responsibility for crimes against humanity. The Commission also encouraged other countries to invest in transitional justice in South Sudan, as efforts to establish a truth and reconciliation commission continue to progress slowly. The Commission focused on the importance of ending impunity, with Commission member Andrew Clapham saying “Despite these delays in the establishment of justice mechanisms within South Sudan, perpetrators of violent crimes in South Sudan should not think they can escape justice, as they could be prosecuted in international courts or domestic courts in other countries.” (OHCHR)
Amnesty Issues Warning to UK Companies Operating in Israeli Settlements
Amnesty International has warned UK companies against operating in occupied Palestinian territories, saying that doing so would make them complicit in human rights abuses. Amnesty has drawn the companies’ attention to the UN guiding principal on business and human rights, which states that all companies have a responsibility to respect international humanitarian and human rights law wherever they operate in the world. Amnesty has urged the companies to read it’s new report on the subject, which states that ‘no company can be involve itself in this economy without contributing to – or being linked to – human rights abuses.’ (Amnesty International)
Russia criticizes international criminal tribunals at UNSC meeting
During the UNSC Arria Formula Meeting, the Russian representative said that Russia will help the UN to stop the creation of any new criminal tribunals and from repeating “mistakes of the past” by referring more cases to the ICC. During his presentation, the Russian representative criticized the functioning of international criminal institutions and respective criminal investigations and spoke of them as “unpromising, low yield areas.” He said that objectively looking at how the institutions discharge their duties, the “experiment” was “politicized”, “exceedingly expensive” and “the quality is low”. He specifically denounced weak evidence presented by the ICC Prosecution when the accused was acquitted at the no case to answer stage due to this weak evidence. The representative suggested that reports from the NGOs was not enough for legal courts to use as reliable sources of evidence. He also condemned the failure of the investigators to visit the countries under investigation. The representation criticized the creation of international tribunals and investigations missions “against the will of the countries at hand” calling them a “mockery of justice.” He referenced the IIIM on Syria specifically. The Russian representative concluded by saying that UN Members should respect the UN Charter and jointly work out mutually acceptable decisions for the benefit of all people. (UN Live Media)
South Sudan Government called before the East African Court of Justice on human rights violations
The Government of South Sudan has been summoned before the East African Court of Justice (EACJ) on 25 March 2019 over the alleged arbitrary arrest and detention of businessman and philanthropist Kerbino Agok Wol. The EACJ will seek to determine why Mr. Wol has been in detention since 27 April 2018, with his assets frozen by the government, his bank accounts closed, and why he has been granted no formal access to family, lawyers, or healthcare. Mr. Wol was arrested and detained by the NSS after appearing for before them on a summons. He was initially detained in the ‘Blue House’, which Amnesty International describes as being notorious for ‘torture and other ill-treatment’. It is alleged that South Sudan’s National Security Service is responsible for widespread human rights violations and that Mr. Wol is one of hundreds of people detained for extended periods of time in South Sudan without charge. (Amnesty)