In this week’s review, news about Judge Ozaki’s new position, Yekatom and Ngaïssona joinder appeal, Tunisia’s Truth and Dignity Commission, UN investigation of Mali killings, Bashir’s travels, call for Syrian tribunal and more:
ICC Judges approve Judge Ozaki’s appointment as ambassador to Estonia while judge in Ntaganda case
On 4 March 2019, the ICC published an internal memo in which an absolute majority of the Judges of the ICC, acting under Article 40(4) of the Rome Statute, decided in plenary that Judge Ozaki could assume the role of Ambassador of Japan to Estonia while she continues to serve as a non-full-time judge of the Court without violating the Rome Statute. Judge Kuniko Ozaki, the only judge remaining to complete the Ntaganda case, had been included in Trial Chamber VI, to which the Ntaganda case was referred when it was first constituted by the Presidency on 18 July 2014. On 10 March 2018, Judge Ozaki’s mandate as a judge of the ICC was completed, at which point, under Article 36(10) of the Rome Statute she continued in office to complete the Ntaganda trial.
On 18 February 2019, Judge Ozaki told the members of the ICC that she had been appointed as the Japanese Ambassador to the Republic of Estonia and would commence those duties on 3 April 2019. The Judge said it was her firm belief that her new responsibility would neither interfere with her judicial functions, which were solely for the purpose of the Ntaganda case and during a limited period after the completion of substantive deliberations and before the completion of the trial, nor affect confidence in her independence in accordance with Article 40(2).
A plenary session of judges to discuss the matter occurred on 4 March 2019 and was attended by all judges except Judge Ozaki and Judge Tarfusser. An absolute majority of the judges decided that Judge Ozaki’s request was not incompatible with the requirements of judicial independence (Judges Eboe-Osuji, Fremr, Morrison, Herrera Carbuccia, Henderson, Hofmański, Mindua, Schmitt, Kovács, Chung, Pangalangan, Bossa, Alapini-Gansou and Prost), a minority of three disagreed (Judges Perrin de Brichambaut, Ibáñez, Aitala), and one judge (Judge Akane) abstained from participating in the decision.
The judges agreed that the standard to apply when considering whether an issue of judicial independence arises in these circumstances is contained in Article 40(2) of the Statute, which applies to non-full-time judges. That standard has two limbs: (1) the requirement not to engage in any activity which is likely to interfere with judicial functions, and (2) the requirement not to engage in any activity which is likely to affect confidence in independence. Failure to satisfy either will determine the inconsistency of the proposed activity with the principle of judicial independence. The Judges decided that Article 40 eschewed broad references to abstract categories of prohibited functions and demonstrated a closer concern with analysing the actual activities or occupations proposed by a judge. Accordingly, they found that a case-by-case basis was the correct approach, and emphasised the actual activities to be performed by Judge Ozaki and their compatibility with her status as a non-full-time judge of the Court. (ICC Internal Memorandum)
PTC rejects Yekatom and Ngaïssona leave to appeal on joinder of case
On 26 February 2019, the Ngaïssona Defence submitted a request for leave to appeal the joinder of their case to the Yekatom case on two different issues. First, whether the Chamber erred in failing to give the opportunity to the newly appointed Defence team to provide relevant observations as to the feasibility of the joinder in a context where the withdrawing Counsel alerted the Chamber of his limited possibility to make submissions on the substance of the joinder request and asked that his successor be permitted to make “any further or different submissions”. Second, whether the Chamber misapplied Rule 136 of the Rules when relying on the expectation that the evidence and issues in the two cases are largely the same and, therefore a joint trial would enhance fairness and judicial economy by avoiding the duplication or inconsistent presentation of evidence while not causing serious prejudice to either suspect.
On the same day, the Yekatom team also requested leave to appeal the joinder but only with regard to the second issue. The Pre Trial Chamber found that the first issue did not ‘significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial’ within the meaning of Article 82(1)(d) of the Statute. Therefore, there was no need to delve into the remaining requirements of Article 82(1)(d) of the Statute. Similarly, the Chamber found that the second issue also did not constitute an ‘appealable issue’ within the meaning of Article 82(1)(d) of the Statute and there was, therefore, no need to consider the remaining requirements of Article 82(1)(d) of the Statute. (ICC PTC Decision on the Defence Requests for leave to appeal)
Tunisia’s Truth and Dignity Commission reveals its findings at the end of its mandate
Tunisia’s Truth and Dignity Commission (Instance Verité et Dignité) released several reports detailing human rights abuses during Tunisia’s authoritarian regimes between 1955 to 2011. The reports cover instances of corruption, torture of political opponents and abuses committed against women and children. They implicate current Tunisia’s President Beji Caid Essebsi of complicity in torture and makes allegations of corruption against the overthrown Zine al-Abidine Ben Ali. However, the allegations are not limited only to the political leader but also include crimes perpetrated by police officers, judges and relatives of Ben Ali. The IVD’s findings go as far as allegations of crimes committed by occupying French forces before the end of French rule in 1956.
During the five years of its work, the Commission revealed around 62,000 cases of human rights violations, held 14 public and thousands of closed-door hearings and referred at least 173 cases to a network of specialised courts. According to the report, all governments up until 2011 inherited a system described as tyranny from the colonial era. The IVD was set up as an independent oversight mechanism in May 2014 to collect evidence and investigate crimes allegedly committed between 1955 and 2011. Its mandate and work were criticized and hampered by the current Tunisian government. One of the main critics of the Commission is also the current President Essebi; against whom the report makes extensive findings on human rights violations. Specifically, President Essebsi is accused of overseeing mass arrests and show trials against Tunisia’s former leader, Bourguiba’s political opponents in 1962. During Bourguiba’s leadership, Essebi was part of the security apparatus and among those who allegedly “ordered, organized” the torture which was described as “a systematic and planned.”
The report details allegations of the killings of the protesters and enforced disappearances against Ben Ali who is also widely implicated of corruption and misuse of public funds.. The Commission held interviews with 1,782 Tunisian resistance fighters of crimes committed by occupying French forces before the end of French rule in 1956. The Commission proposed extensive reforms of the Ministry of the Interior aimed at bringing transparency and prevent the security services committing further crimes. Amnesty International stated with regret that very few alleged perpetrators have appeared in court and criticized the slow pace of trials. The international community welcomed the reports especially since Tunisia appears to be the only Arab country with a relatively smooth transition from the “Arab spring” era. (The Guardian, Amnesty International, Reuters, IVD)
UN Deploys Investigators to Mali After Weekend Massacres Kill 160 Near Mopti
The United Nations has sent a team to Mali to investigate a violent incident last Saturday near Mopti, which has left an estimated 160 people dead. The attack, in which men, women and children were burned in their homes, was carried out on a Fulani herding community and is suspected to have been perpetrated by members of the Dogon hunting community. The two groups have clashed for some time as the Dogon believe the Fulani are harbouring Islamist extremists, and this conflict has caused around 600 deaths in the past year. ICC Prosecutor, Fatou Bensouda, has stated that the ICC may have jurisdiction over the crimes, and former ECOWAS director Adama Gaye stated there is a risk of genocide against the Fulani. (Al Jazeera, Reuters)
SDF calls for an international tribunal to prosecute foreign IS fighters
A group of Syrian fighters affiliated with the Kurdish-led Syrian Democratic Forces (SDF) has called for a tribunal to prosecute foreign fighters who have been captured by the SDF in the campaign against ISIS. The group says that a tribunal conducted fairly and in accordance with human rights standards is needed, particularly in light of the fact that several countries have refused to bring home their detained nationals. The announcement came two days after the ISIS “caliphate” was declared defeated following the SDF’s capture of the village Baghouz, the last territory under ISIS control. The UK and France have said that fighters must be brought to justice in the region where their crimes were committed. (Al Jazeera)
HRW Calls on Tunisia to Bar Entry or Arrest Al Bashir at Arab League Summit
Human Rights Watch has called for Tunisia to either bar entry to or arrest Sudanese President Al Bashir, who is expected to attend the League of Arab States summit there on 31st. There are currently two open ICC warrants for Al-Bashir, for alleged genocide, war crimes, and crimes against humanity committed in Darfur, Sudan. The League of Arab States has rejected the ICC warrants. Human Rights Watch has stated that if Tunisia allows al-Bashir to visit without arrest, they would be neglecting their commitment to support and cooperate with the ICC under the court’s Rome Statute. A local news agency has reported that Al-Bashir will not be attending the summit but did not give an explanation. (Human Rights Watch, Washington Post)
Swiss prosecutors indict Liberian man for war crimes
Prosecutors in Switzerland filed the country’s first international criminal law-related indictment against a Liberian suspect accused of murder and rape during Liberian civil war between 1989 and 1996. The suspect, whose name the Office of the Attorney General (‘OAG’) did not reveal allegedly held a position of a former commander of the United Liberation Movement of Liberia for Democracy (‘ULIMO’). ULIMO fought against the rebel movement headed by Charles Taylor. The investigations were launched after the OAG received a number of complaints from Liberian nationals in 2014.
The crimes the suspect is alleged to have perpetrated involve ordering or involvement in the murder, rape, enslavement of civilians, pillage or recruitment of child soldiers in the Lofa County between 1993 and 1995. Due to reported lack of cooperation from Liberian authorities and the time when the alleged crimes occurred, the investigations lasted five years. The authorities received more than sixty cases involving allegations of war crimes, genocide and crimes against humanity, but failed to meet the required legal standard. About a dozen additional cases involving war crimes, genocide and crimes against humanity perpetrated in Liberia are still under investigation. (JusticeInfo)
Filipino fishermen file ICC complaint against China
A group of Filipino fishermen, together with two former Philippine government officials, have filed a complaint with the International Criminal Court (ICC). The complaint accuses China’s President Xi Jinping of crimes against humanity for undermining the food and energy security of coastal states in the South China Sea, as a result of China’s construction projects on reefs and atolls in that area. China has been building artificial islands on coral reefs for military installations in the South China Sea since 2013. A presidential spokesperson claimed that the complaint would likely be dismissed as the Philippines and China are not ICC members. However, the complaint was filed two days before the Philippines formally withdrew from the ICC on 17 March. Furthermore, Article 127 of the Rome Statute provides that the ICC still has jurisdiction over crimes committed before the departing country’s effective exit date. (Deutsche Welle)