In this week’s review, news about the ICC’s scheduled hearing on Lubanga reparation, Katanga reconsideration on DRC proceedings, the OTP’s intention to open an investigation into Rohingya crimes, submissio.ns on ICC judge disqualification motion, victims appeal brief on Afghanistan, Bemba in the DRC and more
ICC Appeals Chamber to deliver judgment on size of Lubanga case reparations
In the case of Mr. Thomas Lubanga Dylio, the Appeals Chamber of the ICC has issued a scheduling order for its judgment on appeals against the Trial Chamber’s decision on the size of reparations for which Mr. Lubanga is liable. The judgment is to be held on 18 July 2019 at 09h30. The Trial Chamber decision issued in December 2017 saw Mr. Lubanga’s liability for collective reparations set at USD 10,000,000. This decision was appealed both by legal representatives of V01 victims group, and Mr. Lubanga. Mr. Lubanga was sentenced in 2012 to 14 years in prison for the war crime of conscripting and enlisting child soldiers to participate actively in hostilities in the Democratic Republic of Congo from 2002 to 2003. (ICC AC Scheduling Order, ICC Press Release).
ICC Rejects Katanga’s Reconsideration Request, Refuses to Revoke Authorization for DRC Proceedings
The ICC has rejected Germain Katanga’s request for reconsideration of the Court’s decision to allow the DRC to prosecute him for crimes against humanity and war crimes. In 2016, soon after Mr Katanga finished serving the final months of his ICC sentence in a Congolese prison, the DRC requested permission to prosecute him in it’s High Military Court on separate charges to those brought by the ICC. The ICC granted the DRC’s request in 2016 under article 108 of the Rome Statute. This was the first time the article had been interpreted and the Court decided that a request for prosecution under article 108 should only be denied when it would undermine fundamental principles or processes of the Rome Statute or otherwise affect the integrity of the Court. Mr Katanga was not released from custody in the DRC at the end of his ICC sentence (after he was trasfered to the DRC in December 2015 to serve the remainder of his ICC senetence) and continues to be detained. In January this year, Mr Katanga’s defence lawyer David Hooper asked the Presidency of the ICC to revoke it’s decision, as he claimed the DRC have not charged Mr Katanga, have made no effort to investigate his case and have violated his fair trial rights. Hooper contended that the Presidency of the ICC had an implied authority to reconsider it’s own decisions, especially given the appeals chamber does not have the authority to review article 108 decisions.
The Presidency decided that, while it does have the power to reconsider it’s own decisions, it is ‘an exceptional measure’ and in the present case, reconsideration would only be appropriate if new information indicated that the prosecution of Mr Katanga by the DRC now undermines fundamental principles or processes of the Rome Statute or otherwise affects the integrity of the Court. Reconsideration would not be appropriate merely because the DRC’s prosecution process was not in compliance with international human rights standards. The Presidency determined that the alleged violations of Mr Katanga’s fair trial rights, while important, are not sufficient to meet the standard for reconsideration, and Katanga’s request for reconsideration was rejected. (Decision of the Presidency of the International Criminal Court, International Justice Monitor)
OTP informs ICC Presidency it intends to request authorization to open an investigation in Bangladesh/Myanmar, Presidency assigns it to PTC III
Following the ICC Prosecutor’s advance notice to seek authorization to investigate alleged crimes in Bangladesh and Myanmar, the ICC Presidency assigned the situation to the Pre-Trial Chamber III. In a memorandum dated 12 June 2019, Fatou Bensouda requested the Presidency to assign a Pre-Trial Chamber with an intention of opening investigations into the crimes. The referred crimes allegedly occurred on the territory of Bangladesh within the context of two-waves of violence against the Rohingya in Rakhine State, Myanmar since 1 June 2010. The Pre-Trial Chamber III shall be composed of Judge Robert Fremr, Judge Olga Herrera Carbuccia, and Geoffrey Henderson. On 6 September 2018, the Pre-Trial Chamber I issued a majority decision finding that the Court may assert jurisdiction pursuant to article 12(2)(a) of the Statute over the alleged deportation of the Rohingya people from Myanmar to Bangladesh. The Prosecution opened a preliminary examination into the situation on 18 September 2018. (ICC OTP Notice, ICC Press release, ICC Presidency Decision)
Prosecution and Judge de Brichambaut’s response to Al Hassan Defence request for the Judge’s disqualification
Judge de Brichambaut and the Prosecution filed their respective submissions on the Al-Hassan Defence request for immediate disqualification of Judge de Brichambaut from the case. Al-Hassan Defence argued that the Judge’s alleged professional engagements gear towards advancing French politics and military interests; that his public pronouncements at the Le Club des Vingt, Forum du Futur, Conseil D’etat on contentious factual issues breach principle of judicial independence and give rise to potential bias. The Prosecution, while underscoring its partial agreement with the Defence submissions, noted that indeed, some of Judge de Brichambaut’s statements pertain to Ansar Dine, its ideology and the broader circumstances of the conflict and related events and thus, are material to forthcoming confirmation proceedings against Mr Al Hassan.
The Prosecution called upon the Plenary to not treat the request lightly and give the matter careful consideration. On the other hand, Judge Brichambaut dismissed Defence claim as missing the merit, erroneous and taken out of context. He compared his discussions at the listed fora to moderating or academic discussions among the group of professionals with no current political affiliation, well past retirement age and not reflecting one’s viewpoint. Furthermore, the Judge denounced the disqualification request as a tactic to delay the confirmation of charges hearing in the case. The confirmation of the charges hearing at the ICC in Al-Hassan case is scheduled to take place on 8 July 2019. (ICC Prosecution Response, ICC Judge de Brichambaut submissions)
LRV Appeal Brief for Afghanistan Decision
The Legal Representatives for 82 victims in the Afghanistan situation requested the Appeals Chamber to reverse the Pre-Trial Chamber’s Decision and authorize the commencement of an investigation into the situation in Afghanistan. The LRVs raised six grounds of appeal in its Appeal Brief: (1) In the first ground of appeal, the LRVs submitted that the PTC erred in reviewing the Prosecutor’s assessment of ‘the interests of justice’ and as such acted ultra vires the powers assigned to it by Articles 15(4) and 53(3) of the Statute. Further, the PTC committed procedural error by not giving the Prosecutor and victims an opportunity to be heard on ‘the interests of justice’ assessment. (2) The second ground of appeal concerns the assessment of the extent of cooperation from the State Parties during the preliminary examination.
The LRVs argues that the Chamber erroneously rejected opening of the investigations in Afghanistan on the basis of perceived lack of cooperation whereas it failed to obtain observations from the said state parties. In its submission, by doing so, the Chamber prevented the Prosecution from taking all actions necessary to secure the actual state cooperation. (3) In its third submission, the appeal brief challenged the Chamber’s erroneous finding that the investigation is ‘not feasible and doomed to failure.’ Such determination is grossly unfair to the victims. By reference to other countries and conflicts which were eventually investigated, and perpetrators prosecuted, the LRVs argued that rejecting to investigate crimes falling back to as far as 2005 constitutes abuse of discretion. (4) Fourth, the LRVs submit that The Chamber’s viewpoint that authorization may only cover ‘events or categories of events’ specifically mentioned in the Prosecution’s request is inconsistent with the Court’s jurisprudence. (5) The fifth ground of appeal challenged Chamber’s “unjustified” concerns over Prosecution’s allocation of resources to other investigations which may prove more fruitful in the future. (6) Sixth, and the last ground of appeal goes to the nature of torture. The LRVs challenged Chamber’s determination of its jurisdiction over acts of torture which occurred outside the territory of the state party. The LTVs notably point of the jus cogens nature of the prohibition against torture. On this basis, and based on the reading of the Elements of Crimes requirements, torture need not take place on the territory of a State Party as long as the suspect’s own participation took place in the context of armed conflict on the territory of a State Party. (ICC LRV Appeals Brief)
Bemba returns to the DRC
Jean Pierre Bemba Gombo, former President and Commander-in-Chief of the Mouvement de Libération du Congo and Congolese vice-president arrived in Kinshasa, DRC from Brussels on Sunday, 23 June 2019. Following his acquittal at the ICC and subsequent release from the UN Detention Unit, he led the Lamuka coalition in support of Martin Fayulu, a candidate in the 30 December 2018 Presidential elections. Due to his conviction pursuant to Article 70 in a contempt case at the ICC, the Constitutional Court of the DRC issued a decision on 3 September 2018 finding Mr. Bemba ineligible to run for the presidency. Mr Bemba was convicted on 21 March 2016 by Trial Chamber III of the ICC for war crimes and crimes against humanity allegedly committed in the Central African Republic between 2002 and 2003. His conviction was overturned by the Appeals Chamber on 8 June 2018. (Africa News)
UN High Commissioner for Human Rights Says Suspected ISIS Fighters Must be Tried or Released
The UN High Commissioner for Human Rights, Michelle Bachelet, has said that people suspected of fighting with ISIS must be tried or let go, but cannot be detained indefinitely. An estimated 55,000 suspected fighters have been detained in substandard camps in Syria and Iraq, many along with their wives and children. Bachelet emphasized that those suspected of crimes should be investigated and prosecuted in line with due process guarantees, and those not suspected of crimes must be released. She also raised concerns over foreign states cancelling the citizenship of those detained, stating that ‘rendering people stateless is never an acceptable option.’ (National Public Radio)
CAR Special Criminal Court starts assessing cases
The Special Criminal Court (SCC) in the Central African Republic (CAR) has begun the process of assessing cases to determine which it will begin hearing. The cases include allegations of human rights abuses, violations of international humanitarian law, war crimes and genocide committed in the country since 2003. The SCC President Michael Louanga said that the examination of the first cases could end by the end of 2020 and result in trials. The court was formally inaugurated in 2018 with a complementary jurisdiction to that of the International Criminal Court cases currently being conducted in CAR. The ICC investigations focus on alleged war crimes and crimes against humanity committed in 2002 – 2003 and crimes committed in the context of renewed violence starting in 2012. Twenty-five judges will preside over the SCC, including 13 Central Africans and 12 foreigners. The UN and EU are funding the EUR 61 million budget for the court. (Radio France Internationale)
Trial Chamber schedules Judgment in Ntaganda case for 8 July
On 24 June 2019, Trial Chamber VI of the ICC scheduled the delivery of the Judgment in the Ntaganda case for 8 July 2019. Bosco Ntaganda has been charged with war crimes and crimes against humanity for acts committed between 2002 and 2003 while serving as Deputy Chief of Staff and commander of operations of the Forces Patriotiques Pour la Libération du Congo. His trial began on 2 September 2015 and concluded in August 2018. (ICC TC Order scheduling the delivery of the Judgment)
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