Week 8 2017 ICL Media Review
By ICL Media Review
In this week's review, news about the Cambodia tribunal dismissing a potential case, child soldier victims give their views to ICC, a UN report on Libya’s unfair trial, SA withdrawal “unconstitutional and invalid”, an upcoming reparations decision in Katanga, Bosnia’s intention to review the ICJ genocide decision and more
ECCC Co-investigating judge dismisses Case 004/01 against Im Chaem
The Extraordinary Chambers in the Courts of Cambodia (ECCC) dismissed, on 22 February, the Case known as 004/01 against former district leader Im Chaem on the grounds that she was not a “senior leader.” In a statement issued by the ECCC, the co-investigating judges dismissed the case because “Im Chaem is not subject to the ECCC’s personal jurisdiction, which means she was neither a senior leader nor otherwise one of the most responsible officials of the Khmer Rouge regime”.
Ms. Chaem was allegedly the district secretary of Koh Andet district in the southwest zone and of the Preah Net Preah district of the northwest zone, and she was also suspected of running a forced labour camp during the Khmer Rouge’s four-year rule of the country.
Ms. Chaem was charged in absentia on 3 March 2015 with homicide as well as crimes against humanity, including murder, enslavement and imprisonment. Article 1 of the Law on the ECCC states that the purpose of the tribunal is to “bring to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations”, and according to the co-investigating judges, Ms. Chaem did not fulfil the criterion. “It’s difficult to swallow, it’s a bitter decision but it reminds us that we will have to be more responsible and we will here to continue seeking justice,” said Mr. Youk Chhang, director of the Documentation Center of Cambodia. (KhmerTimesKH, DW)
Child soldier victims submit observations on Ntagangda’s challenge on war crimes crimes
On 23 February, the Common Legal Representative of the former child soldiers in the case against Bosco Ntaganda at the International Criminal Court filed submissions supporting the judges’ previous decision to allow rape and sexual slavery charges to apply to former members of Ntaganda’s own armed group. On 10 January 2017 in the Defence filed its “Appeal on behalf of Mr Ntaganda against Trial Chamber VI’s ‘Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9’, in which it argued that Ntaganda’s war crimes charges of rape and sexual slavery of child soldiers did not fall within the rationae materiae jurisdiction of the ICC. In particular, the Defence argued that “article 8 (2) (e) (vi) of the [Rome] Statute cannot, as a matter of law, cover rape and sexual slavery of child soldiers in the same armed group as the perpetrator”, hence claiming that Art 8 2 e of the Rome Statute has a status requirement, i.e. that victims of these crimes be either protected persons under the Geneva Conventions or hors de combat. According to the Defence, as “members” of an armed group child soldiers automatically fall within the category of persons who “actively participate in hostilities” and are thus excluded from the protections set out in Common Art 3 of the Geneva Conventions.
In accordance with the Appeal Chamber’s directions of 25 January, the Legal Representative of the former child soldiers filed her observations on the challenge raised by the Defence and requested the Chamber to dismiss the appeal in its entirety. In the filing, the Legal Representative argues that Defence failed to identify any error in the Impugned Decision that had previously rejected the jurisdictional challenge, and that the Trial Chamber was in fact correct in asserting that no status requirements apply to the crimes in counts 6 and 9. According to the Legal Representative, such a claim is based on a reasonable interpretation of the various sources of international law, is supported by academic commentaries and is not contradicted by state practice. Furthermore, in the eventuality that the Trial Chamber had erred in holding the requirements of Common Article 3 not applicable to the crimes in question, the Legal Representative submits that such error would not have affected the Impugned Decision as child soldiers would still be protected under international humanitarian law. (ICC Victims Submission)
UN report find domestic trial of Saif Gaddafi unfair + recommends ICC trial
UN human rights officials said in a report released on 21 February, that the trial of Saif al-Islam Gaddafi, son of the ousted Libyan dictator, did not meet international standard and that he should be turned over to the ICC to be tried on war crime charges. The report addressed the trial of Saif Gaddafi and of other 36 defendants, including Muammar Gaddafi’s intelligence chief Abdullah al-Senussi, who were charged with indiscriminate attacks on civilians and other crimes committed during the 2011 revolution.
Saif Gaddafi, as well as al-Senussi, was sentenced to death in a trial that “fell short of international norms and standards for fair trial and also breached Libyan law in some respects”, according to the UN report. The ICC issued an arrest warrant against Saif Gaddafi in 2011 and requested his transfer to The Hague after rejecting Libya’s admissibility challenge on the grounds that it was unable to guarantee him a fair trial and similar admissibility challenge, albeit successful, was brought in relation to Al-Senussi, whose case was ultimately found inadmissible to the ICC. Amongst the due process violations listed in the report, the UN cites prolonged incommunicado detention without access to families or lawyers, and allegations of torture that were not properly investigated. The report also calls on the Libyan authorities to ensure the surrender of Saif to the ICC, “in compliance with Libya’s international obligations”, and to reform the criminal justice system by underscoring that the trial had highlighted “major flaws”. (NYTimes, USNews)
SA High Court finds decision to withdraw from ICC “unconstitutional and invalid”
In the case brought by the opposition Democratic Alliance, the High Court of South Africa has ruled that the government’s withdrawal from the ICC was “unconstitutional and invalid,” based on the government’s failure to seek parliamentary approval beforehand. Responding to the court’s ruling, Justice Minister Masutha affirmed that government nevertheless still intended to quit the ICC and would consider its options to this end, including a possible appeal against the judgment. The Democratic Alliance has released a statement following their court victory: “South Africa does not want to be lumped together with pariah states who have no respect for human rights and who do not subscribe to accountability for those guilty of the most heinous human rights violations. Instead, we should recommit our country to the human rights-based foreign policy spearheaded by the late President Nelson Mandela.” South Africa notified the UN Secretary General (as depository of the Rome Statute) in October 2016. (BBC)
ICC schedules 24 March for decision on Katanga reparations
In the case of The Prosecutor v Germain Katanga at the ICC, Trial Chamber II has scheduled the delivery of the order of reparations for 24 March 2017. The Chamber furthermore directed the ICC Registry to establish a video link between Katanga’s prison in the DRC and the ICC Courtroom, to enable Katanga to attend the delivery of the reparations order; a similar video link is to be provided to other interested persons in the DRC who have filed reparations applications. Katanga was sentenced in 2014 to 12 years’ imprisonment (to include time served) for one count of crimes against humanity and four war crime counts – reparations for these crimes may take different forms (including awards to individuals or collective groups), which will be elaborated on 24 March. (ICC Media Advisory)
Bosnia intends to appeal ICJ judgment on Serbian genocide
The Bosniak member of the State’s tri-partite presidency has announced that Bosnia will soon request the International Court of Justice to review its 2007 decision clearing Serbia of certain genocide charges in the 1990s. The ICJ, in its decision, found that one act of genocide had occurred – in the town of Srebrenica in 1995 – and that Serbia had violated international law by failing to prevent these killings, but otherwise the Court rejected Bosnia’s argument that Serbia had spearheaded the genocide.
The timing of the decision to appeal reflects the ICJ’s ten-year deadline for appeal, which is due to expire imminently on 26 February 2007. Bosnia’s legal team has stated that they have new arguments to put forward – echoing the arguments presented during the trial of Bosnian Serb army chief Ratko Mladic – to demonstrate that genocide was more widespread than previously acknowledged. The appeal announcement was met with criticism from Bosnian Serb officials, who argued that this decision could not be made without consensus amongst Bosnia’s tri-partite Presidency (including from the Bosnian Serb representative), and Serbia’s Foreign Minister has called the move “very dangerous.”
UN setting up new unit to investigate crimes in Syria
A new investigative unit will be established by the UN to “analyse information, organise and prepare files on the worst abuses that amount to international crimes” in Syria. The unit will investigate primarily war crimes, primarily war crimes, crimes against humanity and genocide, and identify those responsible, and will prepare files for future prosecution that states or the International Criminal Court in The Hague could use. The unit would also be able to use evidence collected since 2011 by the UN Commission of Inquiry in Syria to prepare legal dossiers. Jeremie Smith, of the Cairo Institute for Human Rights Studies, underscored the importance of the unit in preserving and preparing evidence ahead of a potential “exodus” on perpetrators once the conflict ends. (The Guardian)
Syrian man given life sentence in Sweden for violations of humanitarian law in Syria
The Stockholm district court has sentenced Haisam Sakhanh to life imprisonment for violations of international humanitarian law stemming from his participation in the execution of seven men in Syria. Sakhanh is Syrian with a Swedish residency permit, and was arrested in Orebro in March 2016 on suspision of the killings in Idlib in 2012. Sakhanh admitting to being part of the killings but plead not guilty to violating international law. The judge noted that the question before the court concerning Sakhanh’s guilt is “whether a non-governmental actor can establish their own courts to maintain law and order within the framework of a non-international armed conflict.” Although the court noted that non-government actors may be able to establish their own courts, the court found that in this case only two days had passed between the victims’ capture and execution making it impossible to conclude that their execution followed a fair trial. (thelocal)
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.