ICL Media Review - Week 46

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Friday, November 18, 2016 - 13:54

By ICL Media Review

In this week's review, news about the ICC OTP Preliminary Examination report, Russia’s ICC signature withdrawal, the start of the ASP session in The Hague, Bashir’s travel plans, Ntaganda request for urgent stay, Ongwen decision on legal representation for victims, and more.

Fatou Bensouda

ICC OTP releases annual report on Preliminary Examinations

ICC Prosecutor Fatou Bensouda has released her annual Report on Preliminary Examination Activities (2016). It provides an overview of the ten situations under consideration for possible investigation, as examined by the Office of the Prosecutor over the last year. Two new preliminary examinations were opened into the situations in Burundi and the Gabonese Republic, while examinations continued into the situations in Afghanistan, Colombia, Guinea, Iraq/UK, Palestine, Nigeria, Ukraine, and the situation regarding the Registered Vessels of Comoros, Greece, and Cambodia.

Conclusions on the situation in Afghanistan and on the Comoros referral are expected soon. The report – which aims to raise public awareness and promote transparency regarding the OTP’s activities – sets out a summary of the examination status of each situation, and outlines the OTP’s findings with regard to jurisdiction and admissibility. Article 53(1)(a)-(c) of the Rome Statute governs the OTP’s conduct of a preliminary examination. (ICC Press Release

Assembly of State Parties
Uhuru Kenyatta

ASP annual session begins in The Hague; Kenya breaks tradition of sending a high-powered delegation

The ICC’s Assembly of State Parties is scheduled to hold its fifteenth session from 16-24 November 2016, at the World Forum Convention Centre in The Hague. Amongst the delegations of State Parties, Kenya has failed to send its traditional high-level delegation, instead indicating it will be represented by its ambassador to the Netherlands, Makena Muchiri. Kenya has had a troubled relationship with the court following the post-election violence that took place in the country in 2008 – a situation which gave rise to six ICC prosecutions of senior Kenyan officials (including President Uhuru Kenyatta), all of which were eventually ended on grounds of lack of sufficient evidence. (ICC AdvisoryThe Star)

Russia withdraws signature to Rome Statute

The Russian Foreign Ministry has announced that Russia will formally withdraw its signature from the Rome Statute, calling the ICC “one-sided and inefficient”. Notably, Russia signed the Rome Statute in 2000 but has not ratified the treaty and accordingly is not a State Party – thus the withdrawal of their signature is primarily symbolic and will have no effect on the ICC’s existing jurisdiction. The withdrawal comes the day after the release of the ICC Prosecutor’s Report on Preliminary Examination Activities (2016), which identified a military conflict between Ukraine and Russia in the Crimea and classified Russian presence as an occupation. The Report stated that: “the Russian Federation employed members of its armed forces to gain control over parts of the territory of Ukraine without the consent of the government of Ukraine”. Recent months have also seen South Africa, Burundi, and Gambia – State Parties to the Rome Statute, unlike Russia – announce their intent to withdraw from the ICC. (The Guardian)

Gambia notifies UN of ICC withdrawal in Nov 2017

Gambia has formally notified the UN of its withdrawal from the ICC, which will now take effect as of 10 November 2017. The notification follows Gambia’s October announcement of its intention to leave the ICC - a withdrawal rendered particularly poignant given that ICC Prosecutor Fatou Bensouda is the country’s former Justice Minister. Gambian Information Minister Sheriff Bojang has called the ICC the “International Caucasian Court for the persecution and humiliation of people of colour, especially Africans”. UN Secretary General Ban Ki-Moon has expressed regret that Gambia, Burundi and South Africa are withdrawing from the ICC, he commented that this could “send a wrong message on these countries’ commitment to justice”. (Reuters)

New Kosovo Court Prosecutor, Schwendiman, gives interview after visit to Serbia and Kosovo

Newly-appointed chief prosecutor of the new Hague-based Kosovo Special Prosecutor’s Office, David Schwendiman, has given his first interview as chief prosecutor following a visit to Kosovo and Serbia to discuss State cooperation with the special court. In particular, Schwendiman emphasised the nature of the Kosovo special court’s independence, stating that “I am not after organisations, I am not after ethnicities, I am looking at individual responsibility for what was done”. He also stressed that “if that message gets out clearly to the people that are affected by this, then maybe they will understand that the court is not pro-Albanian or anti-Albanian, pro-Serb or anti-Serb, but that we are just doing our job”. The Kosovo special court is mandated to prosecute crimes committed by the Kosovo Liberation Army from 1998-2000. The interview also addresses topics including the nature of evidence collection, the scope of the court’s mandate, and challenges posed to proceedings by witness intimidation. (Balkan Insight)

Omar Al-Bashir

Bashir travels to Morocco for Climate Change conference

Having received a written invite from the Moroccan monarch, on Monday Sudanese President Omar Al-Bashir travelled to Morocco to attend the UN’s “COP22” conference on climate change. President Bashir, the sitting head of state of Sudan, is the subject of two arrest warrants issued by the ICC in 2009 and 2010 for war crimes, crimes against humanity, and genocide arising from acts allegedly committed by the Sudanese army and affiliated militias in Darfur between 2003-2008. Though the ICC issued the first arrest warrant for President Bashir on 4 March 2009, he has continued to travel unimpeded to many states including China, India, and Uganda. (The Sudan Tribune)

Theodor Meron

MICT President Meron demands release of Turkish MICT judge arrested after coup attempt

MICT President Theodor Meron has called for the release of the MICT Turkish judge, Aydin Sedaf Akay. Mr. Akay was arrested in Turkey on 21 September 2016 after the attempted July coup against the Turkish government. Mr. Meron explained that the judge’s detention resulted in the standstill of the proceedings that Turkey ignored his requests to visit Mr. Akay. He requested that Turkey “immediately release judge Akay from detention and enable him to resume his lawfully-assigned judicial functions”. More than 270 people died in the failed coup. Since then, Turkey declared state of emergency during which tens of thousands of people “with suspected ties to an Islamic cleric in exile in the United States” were arrested or detained. (DW)

ICC Trial Chamber decision in Ongwen case clarifies position on legal aid for legal representatives for victims

On 14 November, the Trial Chamber made a decision on the Registry’s request for guidance after the Registry received a renewed application for legal aid.  The Trial Chamber’s decision is based on its previous guidance on 26 May 2016 where it determined that “the legal representation provided by the LRVs (…) is not eligible for being covered by legal aid funds”. The Trial Chamber justified its decision by the fact the Legal Representatives for Victims were individually chosen by the victims (Rule 90(1)) and were not common legal representatives chosen by the Court (Rule 90(5)). Since the 26 May 2016 guidance made it unnecessary, the Trial Chamber found that no further guidance was warranted. (ICC TC Decision)

Bosco Ntaganda

Ntaganda defence requests urgent stay of proceedings following Prosecutor’s Art 70 disclosure

On 7 November, the Prosecution stated that it had documents revealing Mr. Ntaganda’s involvement in “a broad scheme to pervert the course of justice, including by coaching potential Defence witnesses, obstructing Prosecution investigations and interfering with Prosecution witnesses”. Following the Prosecution Article 70 disclosure, Ntaganda Defence requested an urgent stay of proceedings on 14 November 2016. The Defence deems the disclosure of the information mentioned by the Prosecution necessary to limit “the ongoing prejudice caused by past non-disclosure”. The Defence stated that it was not informed of the existence of such information and that the lack of its disclosure impacts both the selection of Defence witnesses and the conduct of cross-examination of Prosecution witnesses. The Defence further stated that it should have known this information “long ago” and that it should be disclosed immediately. The Defence argued that both the fact that the Prosecution has been listening to Mr Ntaganda’s calls during this trial and the filing of the Prosecution Notice raise “serious question about the fairness of these proceedings” since the Prosecution may “have come into possession of information that concerns Defence strategy, witnesses or evidence”. The Defence drew the conclusion that it cannot offer appropriate submissions to the Trial Chamber until all ex-parte communications and precise modalities of the investigations have been disclosed. Insisting on the “very likely ongoing prejudice” suffered by the Defence, it requested that no more witnesses should be heard until after the disclosure. ( Ntaganda Defence submission)

Dutch authorities extradite two suspects in connection with Rwandan Genocide

Two Rwandan men accused of participating in the 1994 Rwandan genocide were handed over to Rwandan authorities in Kigali by Dutch officials on Saturday, an official reported. According to Rwanda’s prosecutor general, Richard Muhumuza, the two suspects, Jean-Claude Iyamuremye and Jean Baptiste Mugimba, allegedly played a key role in the genocide in which over 800,000 ethnic Tutsis and moderate Hutus were killed by Hutu extremists. Iyamuremye was allegedly a leader of the Hutu extremist ‘Interahamwe’ militia, while Mugimba, a political leader of an extremist Hutu party then known as Coalition for the Defense of the Republic, was allegedly involved in compiling death-lists, supplying weapons to militia groups, and attacking Tutsis in and around Kigali. The two suspects were living in the Netherlands and had appealed, unsuccessfully, the Rwandan government’s extradition request on the grounds that they could face torture if they returned to Kigali. Muhumuza said they will both be tried for different counts of genocide and crimes against humanity. (The New York Times)

Bosnian prosecutor investigating former Croatian Army members for war crimes

On Friday, 11 November, Bosnian Serb police stated that ten complaints have been filed with the state prosecutor against former members of the Croatian Army for alleged war crimes committed in Bosnia during the 1992-95 war. While the exact timing of the filings has yet to be provided, Bosnian Serb police spokeswoman Mirna Miljanovic confirmed that the state prosecutor has opened investigations into military operations during which the Croatian Army crossed over to Bosnia in 1995. These also include Operation Maestra, an offensive in which Croatian soldiers allegedly killed 181 Serb civilians, and which Croatia’s current defense minister, Damir Krsticevic, led as a commander. Krsticevic reportedly cancelled his participation in a regional meeting in Sarajevo this week, fuelling suspicions by the media that he feared arrest. (The Washington Post)

Photos:

  • Fatou Bensouda (brightsblog.wordpress.com/bing)
  • Assembly of State Parties ASP (flirkc.com/bing)
  • Uhuru Kenyatta (ijmonitor.org/Flickr)
  • Omar Al-Bashir (openDemoncracy/Flickr)
  • Theodor Meron (UN Tribunal for the former Yugoslavia/Flickr)
  • Bosco Ntaganda (plutonianmac.blogspot.com/bing)

ICL Media Review is an independent UK Small Charity, which aims to provide a daily survey of news and developments affecting international criminal law and international human rights in a neutral and impartial manner.

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