In this week’s review, news about the OTP appeal on Comoros before the ICC AC, Judge Ozaki, South Sudan and a Hybrid War Crimes Tribunal, evidence of war crimes in Libya, and more.
ICC AC schedules Appeals Judgment for 2 Sept after hearing legal arguments on the OTP’s appeal of the PTC’s second reconsideration decision
On 3 May, the Appeals Chamber (AC) of the International Criminal Court issued a scheduling order for the delivery of its judgment on the Prosecutors appeal on Pre-Trial Chamber’s (PTC) decision on the application for judicial review by the government of the Union of Comoros. The order scheduled the judgment to be delivered on 2 September 2019. The order also extended the time limit set by the Pre-Trial Chamber for the Prosecutor to reconsider her decision not to investigate by 15 May 2019, until the delivery of the judgment in September.
This scheduling order follows an oral hearing before the AC which was held on 1 May 2019. At the hearing, parties were asked by the AC to answer questions drawn from 4 main categories. Group A questions pertained to matters of applicable law and judicial power. In essence, Group A asked the parties whether they had followed the rules and procedures of the Court in all decisions and actions leading up to the appeal. Group B questions focused on the Prosecutor’s implementation of the request for reconsideration. These questions looked at whether the Prosecutor in her previous decision had turned her mind to errors identified by the PTC concerning major issues in the case such as scale of the crimes, or whether the Mavi Marmara was boarded legally by Israeli forces. Group C questions asked about the standard of ‘reasonable basis’ to initiate an investigation. And Group D questions were in regard to complementarity and the duty to end impunity. This asked whether any state had the capacity to investigate the crimes, and if the case wasn’t investigated anywhere else, would that amount to a violation of the human right of access to justice. The full hearing can be watched at the links below.
These questions were put to the parties following the Office of the Prosecutor’s appeal against the PTC’s second decision ordering the OTP to reconsider their ‘final decision’ not to continue the investigation into the Mavi Maramara case. (AC Judgment Scheduling Order, AC Order on Hearing, Hearing Video 1, Hearing Video 2, Hearing Video 3).
ICC Judge Ozaki resigns as Japan’s Ambassador to Estonia
The Presidency of the ICC confirmed today that Judge Ozaki resigned as Japan’s Ambassador to Estonia on 18 April 2019. Judge Ozaki was appointed as the Ambassador of Japan to Estonia in February 2019. A plenary of judges convened on 4 March 2019 and decided by absolute majority that her diplomatic appointment does not violate Article 40 of the Rome Statute while she also serves as a non-full time judge at the ICC. This outcome was adversely received by the Defence. The Ntanganda Defence opposed her continuous tenure as ICC judge while at the same time serving in diplomatic service. The Defence claimed her judicial independence and impartiality would be negatively affected. Judge Ozaki has been serving as ICC Judge since her appointment in 2010. (ICC Presidency)
South Sudan Hires American Lobbyists to Block Hybrid War Crimes Court
South Sudan has agreed to pay US lobby group Gainful Solutions $3.7million to block the establishment of a war crimes tribunal, which was a cornerstone of last year’s peace agreement between rebels and the government. The contract was published on the US Justice Department website as, required by US law. It sets out that Gainful Solutions will take steps to delay and ultimately block the establishment of the Tribunal, and will also attempt to persuade President Trump to drop sanctions against South Sudan. Human rights groups have denounced South Sudan’s attempt to block the Tribunal, calling it an obstruction of justice, an impediment to sustainable peace and a ‘slap in the face’ for victims. The Tribunal was intended to try those of both sides of the conflict accused of war cries, and was key to achieving a ceasefire of the 5 year civil war, which killed 400,000 people and forced 4 million from their homes. (Reuters, Foreign Policy)
BBC Investigation Finds Evidence of Libyan War Crimes Circulated on Social Media
BBC has found nearly 100 images and videos depicting alleged war crimes that have been shared on social media sites including Facebook and youtube. The images depict members of rebel group the Libyan National Army desecrating bodies of government soldiers and civilians, in contravention of the international prohibition on the mutiliation of bodies of enemy soldiers. Some of the images have been online for two years and depict people killed in 2017 attacks. The rebel group, which controls territory is eastern Libya, has recently launched air strikes on Tripoli in an attempt to gain control of the country’s capital. Around 200 people have been killed and 300,000 displaced, and there are fears the attacks could lead to civil war. (BBC News, BBC News)
District court in The Hague gives go ahead in Ogoni Nine case against Shell
The Hague District Court ruled today that it has jurisdiction to hear a case against the Royal Dutch Shell oil company in the Ogoni Nine case. The trial is seen a signal “for people suffering corporate human rights abuses all over the world.” With its seat in The Hague, Shell is being accused of complicity in the Nigerian government’s crackdown and execution of the Ogoni Nine group of environmental protesters. The protests headed by the Ogoni Nine activists erupted in the 1990s as a result of oil pollution caused by oil extraction in Ogoniland, unfair distribution of oil wealth, and the lack of development in the region. The protests were brutally suppressed, and the nine activists were executed. The action against the company was brought by widows of the four Ogoni Nine activists who were executed by the Nigerian government in 1995. It is alleged that Shell instigated the killings of the protesters and bribed witnesses to provide false testimonies. The historic ruling made by the Hague District Court today was preceded by 24-year long battle before the Nigerian judiciary as well as a class action brought against Shell in New York, where it was dismissed in 2013 on jurisdictional grounds. Besides giving the case a green light, The Hague District Court ordered Shell to disclose confidential internal documents and any evidence suggesting it made payments to people in return of providing false information to Nigerian officials.
The court will proceed to hear the evidence advanced by the claimants and hear potential witnesses who were allegedly bribed by the company. Shell denies all allegations. It does, however, acknowledge that “it was aware Nigeria’s military was taking action to protect the company’s infrastructure.” The company already paid out $15.5m in an out-of-court settlement to the families of the late Ogoni Nine activists. Esther Kiobel, wife of the late activist Dr Barinem Kiobel says she hopes that the decision will help “exonerate the innocent activists.” Amnesty International has independently led investigations into killings, rape and torture carried out by the Nigerian government in its effort to crush protests. Shell has been active in Nigeria since 1937. Shell Petroleum Development Company of Nigeria Limited is the largest Shell company in Nigeria and its activity is predominantly focused on onshore and shallow water oil and gas production Niger Delta. (The Guardian, Amnesty International, De Rechtspraak)
Rwandan rebel leader dies awaiting war crimes retrial
A former Rwandan rebel leader, Ignace Murwanashyaka, has died while awaiting re-trial in Germany for war crimes allegedly committed in the Democratic Republic of the Congo (DRC). He was originally convicted in 2015 for one count of leading a terrorist organisation and four counts of being an accessory to war crimes during those operations. The court found he was the mastermind behind massacres and other war crimes and sentenced him to 13 years in prison. This conviction was overturned on appeal due to procedural errors and he was remanded in custody pending re-trial. Mr Murwanashyaka was president of the Democratic Forces for the Liberation of Rwanda (FDLR) during its operations in eastern DRC in 2008 and 2009. His deputy, Straton Musoni, was convicted and sentenced to 8 years imprisonment. (DW)
Sudanese diaspora demand ICC prosecution of Al-Bashir
A group of hundreds of Sudanese people living in western European countries met in The Hague, the Netherlands, on 26 April to call for the surrender of former President Omar Al Bashir and other leading members of the former Khartoum regime to the International Criminal Court (ICC). The group marched to the court and submitted a memorandum to the Office of the Prosecutor calling for “the hand-over of all accused of war crimes, crimes against humanity, and genocide to the ICC, in addition to the investigation of crimes committed since the protests started in December 2018″. Mr Al-Bashir was overthrown on 11 April 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. Various states have refused to surrender him to the ICC, including the Kingdom of Jordan which is currently the subject to proceedings before the Appeals Chamber after the country appealed its referral to the assembly of states party. (All Africa)