In this week’s review, news about the ICC AC Lubanga reparations decision, the AC’s judgment on Ongwen’s ‘defect series’ appeal, written reasons for the TC’s ‘no case to answer’ decision on Gbagbo & Ble Goude, decision on seized materials for Nigarabatware and Turinabo et al., and more.
ICC AC issues judgment confirming reparations award in Lubanga case
On 18 July 2019, the Appeals Chamber of the International Criminal Court (ICC) delivered its unanimous judgment regarding the appeals against the Trial Chamber decision setting the size of the reparations for which Mr. Thomas Lubanga Dyilo is liable. The two appeals were made by Mr. Lubanga and the V01 Victims group, contesting the USD 10,000,000 in reparations set by the Trial Chamber in December 2017. The Appeals Chamber upheld in part the impugned decision. However, the Chamber amended the decision of the Trial Chamber insofar as it found some victims were ineligible for reparations. The Chamber found in favour of victims who argued they were found ineligible for reparations only because they had been given insufficient notice to collect sufficient supporting documents to substantiate their eligibility for reparations. Victims are now allowed to seek further assessment from the Trial Chamber and the ICC’s Trust Fund for Victims as to whether they are eligible for reparations.
The decisions Judge Chile Eboe-Osuji appended to the decision focused on an alternate term for ‘child soldiers’ instead advocating for the use of ‘‘children [criminally] conscripted or enlisted into armed forces or groups and used to participate actively in hostilities’. The appended decision by Judge Ibáñez Carranza is yet to be filed. (ICC Press Release, ICC AC Judgment)
ICC AC judgment unanimously confirms TC decision on Ongwen defence challenges known as ‘defects series’
On 17 July 2019, the Appeal Chamber of the ICC issued its unanimous judgment on the appeal of Mr. Dominic Ongwen against the Trial Chamber’s ‘Decision on the motions alleging defects in the confirmation of charges’. The Appeals Chamber unanimously confirmed the decision of the Trial Chamber. The Appeal decision followed Mr. Ongwen’s unsuccessful motions filed alleging that his Confirmation of Charges suffered from serious defects, and violated his fundamental fair trial right to notice. The Appeals Chamber rejected Mr. Ongwen’s four grounds for appeal. Rejecting first, that the Trial Chamber reframed the Defence submissions in its decision. Second, that the Defence was allowed to file motions alleging defects at such a late stage in proceedings. Third that it could file these motions without leave of the Trial Chamber. Finally, the Appeals Chamber found that the Trial Chamber did not err in refusing to grant leave under Rules 134(2) of the Rome Statute. (ICC AC Judgment, Judgment Summary)
ICC Trial Chamber files written reasons for January 2019 oral decision to acquit Gbagbo and Blé Goudé
The ICC Trial Chamber has issued written reasons for the majority’s decision of 15 January 2019 to acquit Laurent Gbagbo and Charles Blé Goudé of all charges. Judges Henderson and Tarfusser submitted their respective detailed opinions, which also constitute an analysis of the evidence underpinning the acquittal decision. Judge Herrera included her dissenting opinion. By a majority, the Trial Chamber granted the Defence “no case to answer” motion in January, finding that the evidence presented by the Prosecution did not meet the burden of proof for the constituent elements of the crimes charged. Laurent Gbagbo and Charles Blé Goudé were cleared of charges of crimes against humanity allegedly committed as part of a wider pattern to target the civilian population in the post-election violence in Côte d’Ivoire between 2010 and 2011. The majority dismissed the Prosecution’s reliance on “other incidents” to support the charges. Specifically, the majority found that the Prosecution did not sufficiently prove that there was a common plan to keep Mr Gbagbo in power through violence nor that there was an agreed plan to target civilians. Judges Tarfusser and Henderson instead took the stance that many of the instances were nothing more than a regular policy of the state to address violence.
The majority also did not find sufficient evidence to prove that the civilians were targeted pursuant to a policy enforced by the state apparatus or triggered by speeches of Mr Gbagbo and Mr Blé Goudé. In the majority’s view, the evidence presented painted a different picture than the one the Prosecution deemed to outline. Evidence, which was largely circumstantial, was too weak to support the inferences drawn by the Prosecution. In particular, Judge Tarfusser, in relation to the charges against Mr Gbagbo, stated : “[…] insufficiently unsupported by either facts or evidence, when not outright negated by the same or other facts and evidence.” Judge Tarfusser also criticised both parties for their conduct throughout the investigation stage as well as the trial. His criticism of the Prosecution was directed at the protracted presentation of evidence, lack of focused preparation and unnecessary procedural battles: “Little attention was instead paid to the need to shape the trial by way of a serious filtering of the evidence.” Judge Herrera disagreed with the majority, stating that the evidence, if accepted, was sufficient to enter a conviction for the charges. (ICC Press Release, ICC Trial Chamber Written Reasons)
MICT grants Pros request for stay of decision to return seized materials from Ngirabatware, Turinabo et al.
On 9 July 2019, Judge Vagn Joensen, the Single Jude in the Turinabo et al case, granted the Prosecutions request for a stay of the decision that was made on 5 July 2019 to return materials that had been seized following a search of the cells of Mr. Nigarabatware, Mr. Turinabo, and the remaining co-defendants in this case (Mr. Nzabonimpa, Mr. Ndagijimana, Ms. Fatuma, and Mr. Munyeshuli) on 7 February 2019. The search also included the common of the United Nations Detention Facility (“UNDF”) in Arusha, Tanzania and materials seized included information that may have been subject to attorney-client privilege. The decision on 5 July 2019, for which the stay was granted, had ordered that any seized mobile phones (including from before the 7 February search) be handed to the Prosecution as potential evidence that contempt was committed before the Mechanism, and that all other seized material be handed back to the UNDF detainees.
On 8 July 2019, the Prosecution, in light of newly obtained evidence “demonstrating a reasonable suspicion that Ngirabatware used such laptops to create documents and transmit them to the Accused in Turinabo et al. as part of an effort to interfere with the administration of justice” filed a confidential Motion requesting reconsideration and the temporary stay of the 5 July 2019 decision. The Single Judge granted the stay on account of two considerations. First, the Motion filed the prosecution presented an entirely new basis for supporting the seizure of Ngirabatware’s laptops, as opposed to demonstrating clear error in the reasoning of the 5 July 2019 decision, or a “new fact” justifying reconsideration in order to avoid injustice. Second, the Motion sufficiently demonstrated that the return of any seized laptops may have an adverse impact on the preservation of highly relevant information or evidence in this case “and may demonstrate acts of contempt of in violation of Article 1(4)(a) of the Statute. In the interest of justice, the temporary stay was granted, but only to the extent that it orders the return to Ngirabatware of any laptops seized from him. (MICT Decision on the Prosecution’s Urgent Request)
Two war crimes convictions in Bosnia and Herzegovina court
A court in Bosnia and Herzegovina has convicted two defendants, Samir Kešmer and Mirsad Menzilović, of war crimes committed against a civilian population. The court found that, while acting as members of the Army of Bosnia and Herzegovina, the two defendants used force and threat to body and life to commit rape during the war in Bosnia and Herzegovina, in the territory of the city of Sarajevo in May 1993. The court sentenced the two men to six years’ imprisonment each. The court also ordered the defendants to jointly pay BAM 30,000.00 to the injured party, by way of non-material damages. (Sarajevo Times)
US Sanctions Commander of Myanmar Military for Role in Rohingya Atrocities
The US has sanctioned four top military officials in Myanmar for their role in the ‘ethnic cleansing’ operations which saw 740,000 Rohingya muslims flee Myanmar in 2017. The sanctions consist of travel bans on the officials and their families, but they do not affect civilian leader Aung San Suu Kyi. The US also sanctioned several junior officials last year, which included economic restrictions. The Prosecutor of the ICC has requested permission to launch an investigation into alleged crimes against the Rohingya including deportation, persecution and other inhumane acts. As Bangladesh is a party to the Rome statute, whereas Myanmar is not, the investigation would be limited to crimes where at least one element was committed in Bangladesh. An ICC delegation headed by Deputy Prosecutor James Kirkpatrick Stewart is currently in Dhaka gathering information. (Al Jazeera, Dhaka Tribune)