In this week’s review, news about the ICJ’s provisional measures concerning Iran and the US, the adjournment of the Gbagbo / Ble Goude ‘no case to answer’ hearings, the reversal of Fujimori’s pardon for crimes against humanity, a finding of genocide in Guatemala, the ICC’s review of admissibility in Simone Gbagbo’s case and more:
The ICC’s Pre-Trial Chamber decides to review admissibility of Simone Gbagbo’s case
The International Criminal Court’s (ICC) Pre-Trial Chamber II has ordered the Registrar request information from competent national authorities of the Côte d’Ivoire pertaining to State-based judicial decisions rendered against Simone Gbagbo. It is for the Pre-Trial Chamber to determine based on information provided by State authorities whether the case should be ruled inadmissible for having been prosecuted by a State which has jurisdiction over the case. In addition, the Office of the Prosecutor (OTP) has requested access to the information provided by the Côte d’Ivoire and to make observations on this. (ICC-PTC, ICC-OTP)
“No case to answer” hearings adjourned to 12 Nov in Gbagbo and Blé Goudé case
Three days into the start of the no case to answer hearing in the Prosecutor v Gbagbo and Blé Goudé case, the ICC Trial Chamber granted the Defence request to postpone the hearing and allow it to examine arguments made by the Prosecution and the Legal Representatives for the Victims on 1 October 2018. After the close of the Prosecution case on 23 July 2018, the Defence for Mr Laurent Gbagbo and Mr Charles Blé Goudé filed their respective motions submitting that the Prosecution had not adduced sufficient evidence to sustain a conviction. They, therefore, requested the Court to find them not guilty of the crimes charged. Following the written submissions of the parties, the Trial Chamber scheduled the hearing of oral submissions for the week of 1 October 2018. The motion argues that the Accused should not be called upon to answer a charge and call his/her defence case when the evidence adduced by the Prosecution over the course of the trial is insufficient for conviction. Mr Gbagbo was charged with crimes against humanity including murder, other inhumane acts, persecution and sexual violence which allegedly occurred in the wake of post-electoral violence in the Ivory Coast in several isolated incidents in 2010 and 2011. Mr Blé Goudé, who was the alleged leader of the Young Patriots group, was also charged with crimes against humanity including murder and other inhumane acts, persecution and sexual violence arising out of the same and other isolated incidents allegedly committed in 2010 and 2011. Mr Gbagbo is the first-ever head of state to be tried before the ICC. (Jeune Afrique, Yahoo)
ICJ issues order on provisional measures in Iran v USA (Treaty of Amity) case in relation to recent sanctions
The International Court of Justice (ICJ) issued an order on Provisional Measures in the Case concerning the Alleged Violations of the 1955 Treaty of Amity, Economic Relations and Consular Rights between Iran and the United States of America. The court’s order of 3 October 2018 comes following the Request for the Indication of Provisional Measures filed by Iran on 16 August 2018, the same day that Iran instituted proceedings against the USA regarding the alleged violations of the 1955 Treaty of Amity. The dispute between Iran and the USA arises from the sanctions introduced by the US Administration against Iran within the country’s policy to end its participation in the 2015 Joint Comprehensive Plan of Action (JCPOA), a decision announced on 8 May 2018.
The decision to reimpose the sanctions lifted under JCPOA came as a result of the alleged military involvement of Iran in Syria, Iraq, Yemen and to a limited extent in Lebanon and Gaza as well as alleged non-compliance of Iran with the agreed nuclear program. The measures were designed to be implemented in two rounds on 6 August 2018 and 4 November 2018 and would affect financial transactions, trade in metals, purchase and acquisition of certain Iranian produced goods as well as passenger aircraft. In the Request for Provisional Measures, Iran asked the court to indicate, pending the ruling on the merits of the case, that the USA suspend the implementation and enforcement of the 8 May 2018 sanctions, allow the full implementation of the already licensed transactions related to the lease of passenger aircraft including aircraft equipment and accompanying services, that the US comply with the court’s order, report to the ICJ on the measures it has taken to that extent and refrain from any measures which would aggravate the situation and may be prejudicial to Iran and its citizens.
The ICJ, after establishing that it has jurisdiction to hear the case, considered the nature and urgency of the 8 May sanctions vis-à-vis the rights which Iran claims to have been infringed. The court established that the progress of the measures by the USA and its practical implications are such that “disregard of them may entail irreparable consequences.” The court particularly found that in the given circumstances, it is plausible that the measures could impact on the health and lives of individuals on the territory of Iran. These rights include the importation and purchase of goods required for humanitarian needs such as medicine, medical devices, food and services required for safe civil aviation. The court unanimously indicated that the US, in conformity with the 1955 Treaty of Amity must remove, by means of its own choosing, measures preventing the free export of medicines, medical devices and parts and services necessary for the safety of civil aviation to Iran. It ordered the USA to refrain from actions which would aggravate the dispute. Orders on provisional measures made under Article 47 of the ICJ Statute have a binding effect on the parties. (ICJ Press Release, ICJ Order)
Peruvian Supreme Court reverses pardon for Fujimori after victim group’s appeal; order him back to prison
On 3 October it was reported that the Supreme Court of Peru overturned a pardon granted to the former Peruvian leader on medical grounds in December 2017. The Supreme Court’s reversal of his pardon included an order that he return to prison to complete the remainder of a 25-year sentence rendered in 2009 for crimes against humanity committed concerning killing squads and kidnappings. The decision came as a result of the appeal of victims group’s who took legal action against the pardon given by Peru’s President at the time; Pedro Pablo Kuczynski. The pardon in late 2017 was met with strong criticism by victim and human rights groups, and was noted as “an appalling ‘slap in the face’ to victims of human rights abuses” by UN Human Rights experts including the Special Rapporteur on extrajudicial, summary or arbitrary executions, Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence and from the Working Group on Enforced or Involuntary Disappearances. (NYTimes, BBC, NPR, OHCHR).
UN Human Rights Council extends Yemen mandate
On 28 September 2018, the United Nations Human Rights Council (the Council) issued a resolution regarding the Human Rights Situation in Yemen, extending the mandate of the Group of Eminent International and Regional Experts on Yemen for a further period of one year. The Group of Eminent Experts was initially established by the council in September 2017 to carry out a comprehensive examination of the human rights situation in the country. In August 2018, the Group published a report detailing possible breaches of international humanitarian law, human rights law and international criminal law. The report provided analysis of the main patterns of violations and suggested areas where further investigation was required. The present resolution requested the Group to submit a comprehensive written report to the High Commissioner. In extending the mandate, the Council expressed concern over allegations of breaches of international humanitarian law and breaches of human rights law, including grave violations against children, attacks on humanitarian aid workers, civilian infrastructure and medical facilities. In a second resolution on Yemen, which was adopted without a vote, the Council invited all bodies of the United Nations system and Member States to assist the transitional process in Yemen. The Council requested the High Commissioner for Human Rights to continue to provide substantive capacity building and technical assistance to the Government of Yemen. (Relief Web, UN Docs)
Court finds Guatemalan army committed genocide
On 26 September 2018, the Guatemalan High Risk Court “A” delivered its verdict on the retrial of José Mauricio Rodríguez Sánchez for the crimes of genocide and crimes against humanity against the Maya Ixil population during the de facto government of Efraín Ríos Montt (1982-1983). The court unanimously found that the Guatemalan army had committed genocide and crimes against humanity but, by majority, held that Mr Sánchez did not have command responsibility and as a result was acquitted of all charges. The criminal acts making up the crimes of genocide and crimes against humanity included the destruction of at least 50 villages in the Ixil region, massacres, the widespread use of torture and sexual violence, especially against women, and search and destroy operations against the displaced population. Despite the finding that the state was responsible for the atrocities, the court did not order that any reparations be paid to the victims, but instead stated that they could make a claim for damages in the civil court. The High Risk Courts were initially established in Guatemala in 2009 to ensure the safety of court staff when trying crimes such as genocide, war crimes, crimes against humanity, grave and complex corruption crimes and drug trafficking. (International Justice Monitor)
Duterte admits ordering extrajudicial killings
During a speech at the Philippines Presidential Palace on 27 September 2018, Philippine President Rodrigo Duterte made the apparent admission that “his only sin is extrajudicial killings.” This admission may provide further weight to the ongoing preliminary examination into the situation in the Philippines being conducted by the Office of the Prosecutor (OTP) of the International Criminal Court. The OTP confirmed in March 2018 that it had commenced a preliminary examination into allegations that Mr Duterte had committed crimes against humanity by ordering thousands of extra-judicial killings as part of his war on drugs while in acting in the capacity of mayor of Davao, and in his current role of President. Mr Duterte has denied the ICC’s right to conduct any investigation, despite the fact that the Philippines is a party to the Rome Statute thereby giving the ICC jurisdiction. Mr Duterte has threatened to withdraw the Philippines from the Rome Statute. (The Guardian)
Palestine initiates ICJ proceedings against US over Embassy in Jerusalem
On 28 September 2018, the State of Palestine instituted proceedings against the United States in the International Court of Justice. It contends that the relocation of the American embassy to Israel in Jerusalem constitutes a violation of the Vienna Convention on Diplomatic Relations on the basis that the treaty requires diplomatic missions to be established on the territory of the receiving State. It seeks orders for the withdrawal of the American embassy from Jerusalem. (ICJ)
OTP statement on the referral of Venezuela by other Rome Statute members
International Criminal Court Prosecutor Fatou Bensouda made a statement regarding the 27 September 2018 referral regarding the situation in Bolivarian Republic of Venezuela. The referral was made by six state parties; the Republic of Argentina, Canada, the Republic of Colombia, the Republic of Chile, the Republic of Paraguay, and the Republic of Peru. In her statement, the Prosecutor outlined that in accordance with Article 14 of the Rome Statute the referring states had requested the Prosecutor investigate crimes against humanity in Venezuela occurring since 12 February 2014. The state referral comes after the Office of the Prosecutor’s 8 February 2018 decision to open a preliminary examination of the situation in Venezuela for alleged crimes committed in the State since April 2017. Despite the referral the Prosecutor highlighted that the OTP “must consider issues of jurisdiction, admissibility and the interests of justice in making” a decision on whether to open an investigation, and noted the independent and impartial exercise of the OTP’s mandate in pursuing preliminary investigations. (OTP Press Release)
Photo: Coalition for the International Criminal Court
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