Kosovo Specialist Chambers grants interim measure suspending Prosecution’s Order for Mahir Hasani to provide information while considering Referral on rights
On 7 February 2019, the Kosovo Specialist Chambers granted an interim measure which suspended the Specialist Prosecutor’s order summoning Mahir Hasani to the court for questioning and ordering him to provide certain documents and information by 11 February 2019. The interim measure was made after Counsel for Mr Hasani filed a Referral before the KSC in response to the Prosecution’s Order. The Referral which argued that the Order of the Specialist Prosecutor’s Office directing him to provide documents and information was in violation of his right against self-incrimination, his right to silence and the presumption of innocence. The Chamber’s decision to grant the interim measure suspends the effect of the PRosecution’s Order while the Chamber makes a determination by the Chamber on the admissibility and merits of the Referral. The Chamber found in favour of granting the interim measure by reasoning that compliance with the Order could result in serious harm to him. (KSC).
Ongwen Defence files motions on defects in the confirmation of charges decision
In the case of The Prosecutor v Dominic Ongwen currently before the Trial Chamber IX of the International Criminal Court (ICC), the Defence has filed four motions as part of a “Defects Series”, requesting the Chamber to rule on defects identified in the Pre-Trial Chamber’s Confirmation of Charges Decision which was released on 23 March 2016 (the CoC Decision). The Defence argues that the defects in the charges violate Mr Ongwen’s right under Article 67(1) of the Statute to notice of the nature, cause and content of the charges. The defence seeks for the modes of individual criminal liability under which Mr Ongwen is charged (direct perpetration, indirect co-perpetration, and ordering) be dismissed under Article 64(2) of the Rome Statute and Rule 134(3) of the Rules of Procedure and Evidence. The Defence indicates in Part I that it has filed the application in a series because, due to the large nature of the decision, it would not be possible to appropriately analyse the defects within the standard 20-page limit. The Defence has then set out its arguments regarding the basic principles of fair trial and notice, where notice is to be found, timeliness of the motion, prejudice in the first part of the series.
It argues that there is no time limitation for applications regarding preliminary motions, but in the event that the Chamber finds that there is, the principle of fairness outweighs the principle of timeliness. Part II addresses alleged defects in mens rea under modes of liability under Articles 25 (3)(a), 25(3)(b), and 28(a) of the Rome Statute. The Defence argues that the CoC Decision fails to identify the mens rea elements for each of the modes of liability, namely individual criminal liability, indirect co-perpetration and ordering. It argues that standard language was used throughout the decision referring to mental state of the accused, but that this was not supported in the facts of the Decision. It further submits that these defects were not cured by auxiliary documents as the mens rea was not alleged in the Prosecution’s pre-confirmation brief nor the pre-trial brief. Part III addresses alleged defects in the pleading of command responsibility and common purpose liability.
Regarding command responsibility, the Defence argues that “there are three defects in notice in pleading of the mode of liability a) the legal elements identified are incomplete; b) where cited, they simply track the language of the Statute; and c) there are no factual allegations in support of the legal elements of the mode of liability.” Regarding common purpose, the Defence argues that the Pre-Trial Chamber violated a basic principle of criminal law that a person cannot be punished for thoughts alone by interpreting that Article 25(3)(d) of the Rome Statute does not require that the accused’s contribution to the common purpose be “’significant’ or reach a certain ‘minimum degree’.”Finally, Part IV addresses alleged defects in individual crimes under the CoC Decision, namely persecution, sexual and gender-based crimes, and conscription of child soldiers The Defence argues that the charges are “facially deficient”, face jurisdictional defects, fail to stipulate the elements of the crimes or fail to link the evidence to the elements.
Mr Ongwen’s trial began on 6 December 2016. The Prosecution and Legal Representatives for the Victims completed their presentation of the evidence in 2018 and the Defence opened its case on 1 October 2018. Mr Ongwen has been charged with 70 counts of crimes against humanity and war crimes which are alleged to have been committed since 1 July 2002 in northern Uganda. (Part I, Part II, Part III, Part IV)
US Navy Seal Faces Prosecution for War Crimes in Iraq, but Two Charges Dropped
Navy SEAL and medic Edward R Gallagher has been charged with the war crime of murdering an injured teenage IS fighter, who was brought to him for medical treatment, in Iraq in 2017. Charges for celebrating his reenlistment next to the body and operating a drone above the body have been dropped. However, Gallagher still faces allegations of posing for photographs with the body, and a charge for obstructing justice by forbidding his subordinates to report his conduct. Gallagher also faces unrelated charges of aggravated assault for shooting and killing civilians while deployed in Iraq. Gallagher’s platoon commander, Lt. Jacob Portier, also faces court-martial for charges that he was aware of complaints against Gallagher but did not report them. Seven Navy SEALS have been granted immunity to testify for the Prosecution. Gallagher’s court-martial hearing is set for 19 February. (Los Angeles Times)
Belgium willing to accept Gbagbo after acquittal
Belgium has agreed to host the former president of the Ivory Coast, Laurent Gbagbo, following his acquittal and order of conditional release on 15 and 16 January 2o19, respectively. Mr Gbagbo was acquitted on the grounds that prosecutors had failed to satisfy the burden of proof over the accusations. The conditions of release prohibit Mr Gbagbo and his co-accused Mr Blé Goudé from leaving Belgium without the explicit prior authorisation of the ICC. They also require that they report weekly to law enforcement and surrender their passports to the Registry of the ICC. (BBC NEWS) (Al Jazeera) (ICC Appeals Chamber)
US Federal court finds Syria liable for the extrajudicial killing of US journalist; Marie Colvin under FSIA
A US Court has found the Syrian Government liable for $300 million in punitive damages for the extrajudicial killing of journalist Marie Colvin. In the judgment, published on 31 January 2019, Judge Amy Jackson of the US District Court for the District of Columbia held that the Syrian government deliberately targeted journalists during the country’s civil war in order to “intimidate news-gathering” and suppress dissent.
The claim was filed under the Foreign Sovereign Immunities Act (FSIA), which allows claimants to sue foreign countries through the US courts for compensation and punitive damages. Although foreign governments are typically immune from jurisdiction in US courts, the FSIA contains an exception that lifts immunity when the alleged crime is committed against a US citizen by a “state sponsor of terrorism” (a.k.a. the terrorism exception). Under the FSIA terrorism exception, US nationals may seek an award of economic damages, solatium and punitive damages against non-immune foreign states. Under Section 1605A, a designated state sponsor of terrorism is liable to a US national for death caused by an act of “extrajudicial killing” of that “state, or of an official, employee, or agent of that foreign state.” The court agreed that the killing of Marie Colvin constituted an extrajudicial killing in violation of the FSIA and in addition to the overall punitive damages, the court also ordered Syria to pay $2.5 million in compensation to Colvin’s sister and $11,836 in funeral expenses. (The Guardian, Time, The Financial Times, Complaint, Colvin v Syrian Arab Republic, Motion for Default Judgment, Colvin v Syrian Arab Republic)
Statute conference in Turinabo et al case schedule before MICT
On 30 January 2019, the International Residual Mechanism for Criminal Tribunals ordered a status conference for the case of Turinabo et al. The purpose of a status conferences is to organise exchanges between the parties, review the status of the case, and to allow the accused the opportunity to raise issues in relating to their detention, including their mental and physical condition. (MICT).
Appeals Chamber rejects Prosecution’s request for suspensive effect on Pre-Trial Chamber order for Flotilla case reconsideration
On 31 January 2019, the Appeals Chamber of the ICC rejected the Prosecutor’s request for suspensive effect with respect to the Decision on the Application for Judicial Review by the Government of the Union of Comoros. The Appeals Chamber failed to find compelling reasons within the Prosecutor’s request, chiefly because the Prosecution’s reconsideration of the matter would not be affected by any future appeals. (ICC-AC).
Human Rights Watch, Amnesty, and Others Call for UN Investigation into China’s Mass Detention of More than a Million Muslims
International human rights groups have called upon the UN Human Rights Council to conduct a fact-finding investigation into China’s treatment of Uighurs and other Muslims in Xinjiang province. Around one million people are detained in re-education camps, and Muslim religious customs have been banned. Kumi Naidoo of Amnesty International stated that the Muslim minorities are subject to ‘…high-tech surveillance, political indoctrination, forced cultural assimilation, arbitrary arrests and disappearances.’ China is a member of the Human Rights Council and often opposes investigations into alleged human rights violations in other countries. Michael Ineichen of the International Service For Human Rights has called for greater scrutiny of member countries such as China, stating the credibility of the Human Rights Council is at stake.(New York Times, Reuters)Republish