In this week’s review, news about the MICT’s appeal decision in Turinabo, the UNHRC and human rights with the environment, Bashir’s domestic trial, Sri Lanka war crimes and more
MICT Appeals Chamber decides on appeal concerning seized materials in Turinabo et al case
On 19 August 2019, the MICT Appeals Chamber decided an appeal filed by the co-accused of the contempt proceedings (Maximilien Turinabo, Anselme Nzabonimpa, Jean de Dieu Ndagijimana, Marie Rose Fatuma and Dick Prudence Munyeshuli), with Augustin Ngirabatware, Jean de Dieu Kamuhanda and Vincent Brown granted standing by the Appeals Chamber which decided it was in the interest of justice for the three to intervene in the appeal. The appeal was against the 18 February 2019 decision of the Single Judge of the Pre-Trial Chamber in relation to seized materials. On appeal, the appellants argued that materials seized by Rwandan authorities from Dick Prudence Munyeshuli, a former defence investigator, included privileged materials, and the Single Judge had erred in ordering the transfer of all seized materials to the Prosecution without screening.
The Appeals Chamber granted the appeals in part and remanded the matter to the Single Judge for reconsideration of certain issues. All other aspects of the appeals were dismissed. The first substantive issue was whether the Single Judge erred in finding that Munyeshuli was not employed by the MICT at the time of his arrest, as asserted by his Defence, and therefore entitled to be in possession of protected and privileged materials. The Appeals Chamber accepted that the Single Judge had made an error of fact on this point impacting findings on Munyeshuli’s right to protected materials. The Appeals Chamber, therefore, remanded this issue to the Single Judge to consider Munyeshuli’s role as an investigator at the time of his arrest when determining the modalities for review of the seized material and for asserting the privilege. For the second issue the Appeals Chamber agreed with the appellant’s argument that seized materials contained material subject to lawyer-client privilege, and that in the absence of a waiver or voluntary disclosure from the client, the Single Judge should have ordered that the seized material be screened for privileged material. The Appeals Chamber, therefore, found that the Single Judge erred in finding that any privilege which may have attached to the seized material was waived.
On the third issue of whether the Single Judge erred in failing to find that the order for search and seizure was defective, the Appeals Chamber held that the Single Judge had not erred in failing to find the order defective – the order provided the Rwandan authorities with judicial authorisation to search and seize materials within its scope, and effectively varied witness protection orders to the extent necessary to execute the order. The substantive case against the five co-accused concerns charges of contempt of court and incitement to commit contempt – they are accused of having participated in a joint criminal enterprise attempting to overturn the conviction of Augustin Ngirabatware for genocide, through witness interference. (MICT Decision)
UN Human Rights Committee links harm to the environment to violations of civil and political rights in polluting case
On 14 August 2019, The UN Human Rights Committee (UNHRC) found that Paraguay was responsible for human rights violations in the context of agrochemical fumigations. The victims in the case were rural workers from the same family who were engaged in family farming in an area (Canindeyú Department) where agribusiness was undergoing major expansion. The large-scale use of toxic agrochemicals resulted in severe negative impacts on the physical health, living conditions and livelihoods of the victims, as well as the contamination of water resources and aquifers, fruit trees, various farm animals and crops. The contamination resulted in the death of one person and the poisoning of 22 other community members. The Committee found that there was an undeniable link between the protection of the environment and the realisation of human rights. According to the Committee, the right to life also included the right of individuals to enjoy a life with dignity and to be free from acts or omissions that would cause their unnatural or premature death.
The Committee concluded, therefore, that heavily spraying the area with toxic agrochemicals posed a reasonably foreseeable threat to the victims’ lives and as such, the violation of the right to life and the right to private life, family and home. As a result, the Committee held that Paraguay failed to exercise adequate controls over illegal polluting activities and therefore must undertake a thorough and effective investigation into fumigations with agrochemicals and the poisoning of people, children, water, soil and food that followed. Paraguay was also asked to prosecute those responsible for the harm, make full reparation to the victims, and to publish the decision of the Committee in a daily newspaper with a large circulation. The UNHRC is a body made up of 18 experts established by the International Covenant on Civil and Political Rights (ICCPR) and addresses complaints concerning violations of the ICCPR. (OHCHR Press Release, Decision from UNHR Committee)
ICC indicted former Sudanese President, Omar Al Bashir, stands trial in Sudan
Omar Al Bashir, the former President of Sudan, is standing trial in Khartoum on charges of corruption, including illicit possession of foreign currency and accepting gifts in an unofficial manner. He is accused of receiving $90 million in cash from Saudi Arabia. Sudanese prosecutors have also opened criminal investigations against him in relation to other charges including money laundering, financing terrorism and ordering the killing of protestors. The trial, which started this week, included testimony given by Brigadier General Ahmed Ali who stated that former President Al Bashir admitted receiving the money from Saudi Arabia.
The trial comes four months after Al Bashir was ousted and arrested by armed forces, following protests demanding an end to his rule. Al Bashir remains wanted by the ICC on charges of five counts of crimes against humanity (murder, extermination, forcible transfer, torture and rape), two counts of war crimes (intentionally directing attacks against a civilian population or individual civilians not taking part in the hostilities, and pillage), and three counts of genocide allegedly committed in the Darfur region (by killing, causing serious bodily or mental harm, and inflicting conditions of life calculated to bring about each target group’s physical destruction). The ICC Prosecution opened the investigation into crimes allegedly committed in Darfur in 2005, and two warrants for his arrest were issued by the ICC in 2009 and 2010. (Al Jazeera)
Sri Lankan General Accused of War Crimes Promoted to Head of Army
Shavendra Silva, a Sri Lankan General who has been accused of war crimes, has been promoted to the head of the Sri Lankan army. A United Nations panel has accused Silva of extrajudicial executions, torture of captives and shelling a hospital, in connection with his role in leading an army division against the Tamil Tigers in the final phase of the civil war. Silva denies the accusations. Rights groups have criticised the promotion for sending a message of impunity, and the UN High Commissioner for Human Rights said that the promotion ‘severely compromises Sri Lanka’s commitment to promote justice and accountability.’ The US Embassy in Colombo has raised concerns that the promotion may undermine reconciliation efforts. It is estimated that 45,000 Tamils died in the final month of the civil war, which lasted 26 years and ended in 2009. (Reuters, Al Jazeera)
UN Postpones Torture Conference Over Protests Against Cairo as Host
The UN has postponed a conference on ‘defining and criminalising torture in the Arab region’ due to backlash against its decision to hold the conference in Cairo. Rights groups have said that holding the conference in Egypt would amount to a cover-up or ‘whitewashing’ of the Egyptian government’s record of torture. A spokesperson for a rehabilitation centre for victims of torture in Cairo, which was forcibly closed down in 2017, has said that Egyptian police and security forces use torture daily, sometimes resulting in the death of prisoners. A spokesperson for the Office of the High Commissioner for Human Rights defended the decision to hold the conference in Cairo, stating ‘There is, of course, quite a lot of value in holding a conference that aims to try and reduce torture in a country (and a wider region) where torture is taking place’. The UN will reopen consultations and when and where to hold the conference. (The Guardian)