In this week’s review, news about a new Kosovo Specialist Chamber summons, responses to proposed joinder of Yekatom and Ngaïssona cases, end of Prosecution evidence in Stanišić and Simatović retrial, appeal brief in Flotilla case, Kiobel evidence in NL suit against Shell and more:
Lahi Brahimaj summoned by Kosovo Specialist Chamber, six years after ICTY acquittal
Former senior Kosovo Liberation Army (KLA) officer Lahi Brahimaj has been summoned for questioning by the Kosovo Specialist Prosecutor’s Office (SPO) in The Hague. Without stating the precise date of the questioning, which is yet to take place, Mr Brahimaj confirmed he will be questioned “as one of the KLA’s leaders.” Mr Brahimaj was acquitted on retrial by the ICTY in 2012. During the indictment period, he was acting as a military officer in Jablanica region and Deputy Commander of the Dukagjin Operative Zone. He was initially indicted in March 2005 together with Ramush Haradinaj and Idriz Balaj for his alleged role in instructing as well as committing cruel treatment, torture and murder of the detainees in the Jablanica detention centre.
While Ramush Haradinaj and Idriz Balaj were acquitted in April 2008, Mr. Brahimaj was sentenced to six years imprisonment. On appeal, the Appeals Chamber upheld Mr. Brahimaj’s sentence, however, on the grounds of witness intimidation, all three accused were re-tried. In the judgment of 29 November 2012, the ICTY Trial Chamber acquitted all three accused due to the lack of evidence presented by the Prosecution demonstrating that the crimes were committed as part of the Joint Criminal Enterprise. Even though the SPO has already questioned some former KLA officers, it has yet to issue indictments. With a seat in The Hague, and as part of the Kosovo judicial system, it is tasked to investigate war crimes and crime against humanity allegedly perpetrated by KLA during and in immediate aftermath of the Kosovo war of independence between 1998 and 2000. (Balkan Insight)
Syrian Intelligence Officers Arrested in Germany on Charges of Crimes Against Humanity
Two Syrian secret service officers have been arrested in Germany and charged with crimes against humanity. The officers, known as Anwar R and Eyad A, were living in Germany after seeking asylum in 2012. It is alleged that Anwar R controlled a prison in which torture and abuse of prisoners occurred, while Eyad A controlled a checkpoint that sent hundreds of people to that prison. Syria’s government denies any torture or abuse occurred within its prisons. The arrests were made under the principle of universal jurisdiction, and mark the first time western criminal prosecutors have arrested alleged torturers of the Assad regime. Arrest warrants for 24 other Syrian officials have also been issued. (BBC, The Guardian)
Prosecution response to possible joinder of Yekatom and Ngaïssona cases
On 4 February, the ICC Prosecution submitted its Observations Regarding Joinder of the Yekatom and Ngaïssona cases. It was submitted that joinder was the most appropriate course of action at this stage. According to the Prosecution, “[s]ince their inception, the two cases have been pled and prosecuted jointly” and “consolidating the proceedings is pragmatic, the most efficient course forward, and would not unfairly prejudice either Suspect”. Further, “[d]oing so, particularly early, would conserve valuable and limited Court and Prosecution resources, reduce potential hardship to witnesses, and advance the interests of justice.” The Prosecution submitted that there was a presumption favouring joinder in this case because the Suspects are charged jointly, the prosecution has always intended to prosecute the case jointly, as per “article 64(5) and rule 136(1), [s]uspects prosecuted together shall be tried together” and although article 64(5) and rule 136(1) primarily apply to the trial stage, the presumption extends to pre-confirmation proceedings.
Joinder was also supported by the fact that the crimes, contextual elements and evidentiary basis of the cases were the same and that Ngaïssona and Yekatom’s alleged criminal responsibility were related. Accordingly, the Prosecution submitted that joining the cases would enhance fairness and judicial economy allow the Chamber to avoid “the unnecessary cost and work of having witnesses testify more than once or with managing two separate but substantially overlapping case files”. In addition, it submitted that not only would joinder minimise the potential impact that presenting evidence before the court would have on the physical and mental wellbeing of witnesses, but it also would not unfairly prejudice either suspect. Noting that an order to join the cases would affect other aspects of the case, the Prosecution also asked the Chamber to consider ordering a confirmation hearing for both suspects on 18 June 2019. (ICC, Pre-trial Chamber, Prosecution’s Observations Regarding Joinder – Ngaïssona, ICC, Pre-trial Chamber, Prosecution’s Observations Regarding Joinder – Yekatom)
Last Prosecution witness finishes giving evidence in Stanišić and Simatović retrial
The last prosecution witness in the Stanišić and Simatović case concluded his testimony before the International Residual Mechanism for Criminal Tribunals (MICT) on 6 February 2019. The hearing has been adjourned until 26 and 28 February 2019 when the Trial Chamber will hear oral submissions for judgment for acquittal. The ICTY Trial Chamber acquitted Stanišić and Simatović of war crimes charges in 2013. In December 2015, the ICTY Appeals Chamber overturned their acquittal and ordered a retrial due to a number of serious legal and factual errors that were found in the first trial. The retrial commenced before MICT on 13 June 2017. (UN MICT Twitter)
ICC OTP’s Appeal brief on Comoros case following PTC’s Decision
On 11 February, the ICC Prosecutor filed an appeal against the Pre-Trial Chamber’s Decision of 15 November 2018 in which it inter alia ordered the Prosecution to submit its further review and final decision on opening investigations into the “Gaza Flotilla case.” The Prosecution was ordered to submit its decision by no later than 15 May 2019 while at the same time the Pre-Trial Chamber (PTC) granted it leave to appeal. The PTC’s decision of 15 November 2018 is the second order of its kind in this case, when it ordered the Prosecution, based on the request of the referring state party – the Union of Comoros – to reconsider its decision to open investigations. On 14 May 2013, Comoros referred the situation with respect to the 31 May 2010 Israeli raid on the Humanitarian Aid Flotilla bound for Gaza Strip to the ICC Prosecutor. Several months later, on 6 November 2013 the ICC Prosecutor concluded the preliminary investigation and announced her decision not to open an investigation into the situation as requirement of sufficient gravity under the Rome Statute had not been met. Later in 2015, the Union of the Comoros requested the PTC to order the Prosecution to review its decision.
After receiving further evidence and having reviewed further submissions in the case, on 29 November 2017, the Prosecutor notified PTC I of her “final decision”, in which she upheld the view that the information available did not provide a reasonable basis to proceed with an investigation. Subsequent to that, in January 2018, the Comoros requested the PTC to review the Prosecution’s “final decision.” The Prosecution’s appeal of 11 February 2019 is two fold. In essence however, the Prosecution’s appeal goes to the core of Article 53(3)(a) of the Rome Statute and powers between the Prosecution and the PTC when the referring state party requests review of the decision of the Prosecution with regards to opening of the investigations. The Prosecution argues that the case at hand raises a dissonance between the powers of the Prosecution and the PTC and a fundamental dilemma of “ultimately, to whom did the drafters of the Statute entrust the responsibility to make the “final decision.” The Prosecution argues in its first ground of appeals that it cannot be obliged by the PTC to accept particular conclusions of law or fact and hence, the PTC committed an error of law. The Prosecution argued that on the sole reading of Article 53(3)(a) of the Rome Statute or Rule 108(2), it is indeed subject to the process but not subject to an obligation of result. In the second ground of appeal, the Prosecution submited that the PTC acted ultra vires and erred in law in determining that the Prosecutor’s Final Decision was not “final.” The Prosecution argued that neither the Statute nor the Rules allow for further review of its final decision. In conclusion, the Prosecution requested that the Appeals Chamber should give effect to the principle of reasonable finality in rule 108(3) and dismiss the request of the Union of Comoros. (ICC OTP Appeals Brief)
Israel asks for dismissal of Dutch case against former Israeli army chief, now election candidate
The Israeli Ministry of Justice has requested a Dutch court to drop a lawsuit against ex-military chief Benny Gantz relating to allegations of war crimes committed in the 2014 Gaza conflict. According to the New York Times, Mr Gantz is running against Benjamin Netanyahu in April’s national elections. The case against Mr Gantz and Israel’s former air force chief, Amir Eshel, was brought before the Dutch court by Ismail Zeyada, a Dutch-Palestinian national who lives in The Hague. The allegations concern Mr Gantz’s alleged role in the killing of six or Mr Zeyada’s relatives during the 2014 air strikes in Gaza. While there does not seem to be a precedent for such a case before Dutch national proceedings, Ismail Zeyada stated that “It’s possible that our case will be a model for all bereaved families to achieve justice and accountability.” Israel has challenged the jurisdiction of the Dutch courts to hear the case on the grounds of state immunity as well as the availability of several mechanisms for the lawsuit to be brought before the national courts in Israel. Moreover, Israel has argued that the attack was “permissible under international law.”
Mr Zeyada, together with his family, decided to file the lawsuit against the two Israeli army officials in the Netherlands because “they do not have access to an Israeli court, that is highly discriminatory against them” and their general disbelief in the ability of the Israeli military to lead an independent investigation. Mr Gantz, who led the military offensive against Gaza militants in the 2014 conflict, left the military in 2015. In his election campaign he boasted about his role in the killing of 1,364 “terrorists.” It is reported that during the air strike that killed six relatives of Mr Zeyada, four militants were also killed. According to the UN, the 2014 conflict in Gaza led to death of 1,400 Palestinian civilians. The UN also noted that both sides of the conflict were potentially implicated in war crimes. The case against Mr Gantz is pending before the Dutch court while it determines the question of its jurisdiction. (New York Times)
UN Human Rights Office and the African Court on Human and Peoples’ Rights sign agreement
On 9 February, the UN Human Rights Chief and the President of the African Court on Human and Peoples’ Rights signed a detailed agreement to strengthen the working relationship between the two organisations. Michelle Bachelet, the UN High Commissioner for Human Rights and Sylvain Oré the President of the African Court on Human and People’s Rights met in Addis Ababa during 32nd Ordinary Session of the Assembly of Heads of African States. Justice Oré was quoted as saying: ‘’The Court and the UN Office share common values on humanity, including the culture of promoting and protecting human rights.’’ The UN Human Rights Office has signed similar agreements with other regional inter-governmental organisations, including the Council of Europe, and the Inter-American Commission on Human Rights. (CNBC Africa)
Reports that the FBI War Crimes unit may be disbanded
In a piece by Beth van Schaack published on Just Security, it was reported that the special unit dealing with war crimes within the Federal Bureau of Investigation may be shut down. The FBI’s Human Right’s Unit investigates individuals within the US who are accused of international crimes. It also investigates international crimes that are committed by or against US citizens. The Unit can enforce immigration statutes against those who cannot be prosecuted in the US, such as Jakiw Palij, a former Nazi guard who lived in the US until his 2018 deportation to Germany. The Unit has successfully prosecuted perpetrators from Liberia, Guatemala and the former Yugoslavia in the past. The piece acknowledges that the closure is only “potential” at this time and is unable to cite direct sources confirming the potential closure or when it might happen. (Just Security)
Widow of Kiobel Testifies Against Shell Oil in The Hague in Ogoni Nine Litigation
Esther Kiobel has testified in The Hague in proceedings brought by the widows of four men who were killed by the Nigerian military in 1995, allegedly with Shell’s complicity. The men, known as the Ogoni Nine, were involved in protests against the oil company at the time of their execution. In June 2017, the widows of these men brought civil claims in Dutch courts in which it is alleged that Shell is complicit in their deaths. Shell expressed regret over the deaths but denies any involvement. Kiobel previously sued Shell under the American Alien Torts Statute (ATS) in 2013, however the Supreme Court held that the ATS does not apply to human rights violations committed in other countries. (BBC, The Guardian, ICLMR)