ICL MEDIA REVIEW: 21 - 27 JANUARY 2019

Patrice-Edouard Ngaïssona appears before PTC II in first appearance after transfer to the ICC for alleged crimes against humanity and war crimes: On Friday 25 January, ICC accused, Patrice-Eduard Ngaïssona, appeared before Pre-Trial Chamber II of the ICC for his first appearance on charges of crimes against humanity and war crimes on an arrest warrant issued on 7 December 2018 concerning crimes in various locations in the Central African Republic.  At the hearing, Judges Antoine Kesia‐Mbe Mindua (Presiding), Tomoko Akane and Rosario Salvatore Aitala, scheduled the confirmation of charges hearing to begin on 18 June 2019. Ngaïssona was represented by Defence Counsel, Eric Plouvier.The first appearance came after French authorities transferred Patrice-Eduard Ngaïssona to ICC custody in The Hague on 23 January 2019. The transfer followed the arrest of Ngaïssona in France on 12 December 2018 under the arrest warrant issued by Pre-Trial Chamber II on 7 December 2019. Ngaïssona is alleged to be the former Anti-Balaka leader in Central African Republic (‘CAR’), and has been charged with crimes against humanity and war crimes committed in Central African Republic against Muslim Seleka group. The alleged crimes were reportedly committed between at least 5 December 2013 and December 2014. The CAR II situation was referred to the ICC by the Government of the CAR on 30 May 2014. They were also according to the referral committed in the wake of an armed conflict between the two religious groups – Muslim Seleka coalition and the Anti-Balaka group. (ICC Press Release, ICC Press Release)

ICC Judges File Lawsuit Against their Own Court for Higher Pay: The New York Times has reported that several Judges of the International Criminal Court have filed a lawsuit against the Court requesting a pay increase, in order to bring their salaries in line with Judges at other international Courts and Tribunals. The lawsuit was filed at the Geneva Tribunal of the International Labour Organisation in April last year.  The article notes that other staff have also sued the Court over employment-related disputes, and it raises concerns regarding the impact of such lawsuits on the Court. (New York Times) 

 Zimbabwe’s security forces accused of using systematic torture during recent protest crackdown: The Zimbabwe Human Rights Commission (ZHRC) has published a monitoring report on the human rights violations in Zimbabwe following the anti-governmental protests that have been ongoing since 14 January 2019. The ZHRC monitors found that responsible national authorities, namely the Zimbabwe Republic Police and Zimbabwe Military instigated systematic torture against protesters as well as  those aligned to the Movement for Democratic Change. The implicated authorities reportedly used excessive force to crackdown on the protests, often accompanied by use of live ammunition, severe beatings, abductions and arrests. The ZHRC attended court hearings, visited numerous communities throughout the country and  heard accounts of prisoners in Harare’s police cells. At least 12 persons were reported to be killed and over 600 persons arrested. Even though the ZHRC report made findings on the looting, damage of property and other forms of violence and vandalism perpetrated by the protesters, it nevertheless condemned the “use of brute, excessive and disproportionate force in most circumstances thereby causing avoidable loss of life and also worsening the situation.” The ZHRC also made findings on the arbitrary detentions and raised concerns regarding the poor conditions in the detention centres. Juvenile detainees were often kept in mixed cells with the adults. The accounts of witnesses interviewed by the ZHRC showed systematic use of torture including use of dogs and beating people with batons on their backs. The arrests were often carried out at night and in the presence of their family members. Most of the arrested persons that were brought to court were denied bailed and made their appearance in clothes in which they were arrested, without having the most basic hygienic needs secured. The ZHRC is monitoring the situation and a follow-up report may follow. (ZHRC ReportBBCAljazeera)

ICC PTC partially grants Prosecution leave to appeal decision ordering reconsideration of Flotilla case decision not to investigate: The Pre-Trial Chamber (PTC) of the ICC has partially granted the Prosecution leave to appeal the decision ordering the reconsideration of the Gaza Flotilla case decision not to investigate. In her submissions to the Court the Prosecutor identified three key issues. First, whether the PTC may entertain and rule upon the merits of the Prosecutors ‘Final Decision’ not to investigate. Second, whether and under what circumstances that PTC can set aside the reasons and conclusion of the Prosecutors ‘Final Decision’. Third, whether the Prosecutor in reconsidering the matter is obliged to accept particular conclusions of fact and law made by the PTC, or whether she may continue to draw on her own conclusions which she has properly turned her mind to. The PTC rejected the first issue, however the PTC granted leave to appeal for issues two (with some reformulations) and three, on the basis that they significantly affect the fair and expeditious conduct of the proceedings and that an immediate resolution by the Appeals Chamber would materially advance proceedings. (PTC Decision on Leave to appeal)

ICC AC decides Gbagbo and Blé Goudé to remain in custody after OTP appeal of TC I’s decision on release after acquittal: The Appeals Chamber of the International Criminal Court (ICC), by majority has issued its decision for Mr. Laurent Gbagbo and Mr. Charles Blé Goudé to remain in custody. The decision follows the Prosecutors appeal, per article 81(3)(c)(ii) of the Rome Statute, against the Trial Chambers decision to release Gbagbo and Blé Goudé following their acquittal for the charges of Crimes against Humanity. The Appeals Chamber’s decision directed the Prosecutor to file her appeal brief by 23 January 2019, for Messrs. Gbagbo and Blé Goudé to respond to the Prosecutors brief by 29 January 2019, and a hearing before the Appeals Chamber to be held on 1 February 2019 in order for the Chamber to hear further submissions on the appeal.

The reasons for the Majorities decisions followed the Prosecutors submission that there is a risk that Mr. Gbagbo and Mr. Blé Goudé would not appear for the continuation of proceedings were they to be released. This is due to the lack of cooperation with the Court from some States, as well as both men having sufficient means and support to help them ‘avoid the Court’s jurisdiction’. Further, the Appeals Chamber noted that the immediate release of Mr. Gbagbo and Mr. Blé Goudé could potentially render an appeal by the Prosecutor nugatory. For these reasons the Appeals Chamber found that continued detention outweighs the acquitted men’s right to be released immediately.

Judge Morrison and Judge Hofmański issued a joint dissenting judgment, which stated that the Prosecutor’s request was inadmissible. This being due to the fact that if a person is acquitted under article 81(3)(c) of the Rome Statute they are to be released immediately, therefore, they should not be in detention at all, thus making continued detention impossible.  (ICC Press ReleaseAC DecisionAC Dissenting OpinionOTP Appeal)

BiH court confirms war crimes charge against former general: A court in Bosnia and Herzegovina has confirmed an indictment for war crimes against Ramiz Drekovic, former General of the Army of the Republic of Bosnia and Herzegovina. It is alleged that, in his role as Commander of the 4 Corps, Drekovic ordered artillery to carry out indiscriminate shelling of a village in the Kalinovik area between May and June 1995 resulting in destruction of property and severe injury to a number of civilians. It is alleged that this conduct was contravened provisions of the Geneva Conventions on the Protection of Civilian Persons in Time of War. (Sarajevo Times

Former Bosnian Army Soldiers Charged with War Crimes Against Croat Civilians and Prisoners of War:  Eight former Bosnian Army soldiers have been charged with war crimes related to the killing of at least 12 members of the Croatian Defence Counsel, who had surrendered, and two Croat women during the 1993 conflict. Four of the accused held command positions at the time and the charges include direct participation in the crimes as well as failure to prevent or punish the crimes. The indictment has been filed to the Bosnian State Court for confirmation. (Balkan TransitionalJustice)

ICC holds ceremony for opening of 2019 judicial year: On 18 January 2019, the International Criminal Court (ICC) opened its judicial year with a special session in The Hague which brought together senior international, regional and national judges as well as representatives of civil society and international organisations. Judge Chile Eboe-Osuji, President of the ICC, reflected on accountability and the various roles of the Prosecutor, Defence Counsel, Counsel for Victims, and the Judges in this regard. In particular, he observed that the Rome Statute does not require a particular outcome and stated that it was incorrect to take the view that the Prosecutor or Defence Counsel have succeeded or failed if any particular outcome was not reached. The ICC Prosecutor, Fatou Bensouda, also made remarks, noting the importance of the court to a rules-based global order and the fight against impunity for atrocity crimes and stated that “the Court must stand tall as a beacon of hope and as a critical pillar of effective justice in response to atrocity crimes”. The special session was followed by a judicial seminar to allow a critical reflection on the international criminal justice system after the 20th Anniversary of the Rome Statute. (ICC Press Release)

MICT President, Judge Meron, visits Tanzania before end of his mandate: On 9 January 2019, Judge Theodor Meron, President of the International Residual Mechanism for Criminal Tribunals (the MICT), made his final visit to Tanzania before he concluded his mandate as the MICT’s President on 18 January 2019. He was replaced by Judge Carmel Agius on 19 January 2019. While in Tanzania, he met with Tanzania’s Deputy Minister of Foreign Affairs and East African Cooperation, Dr Damas Ndumbaro, and a group of foreign diplomats in Dar es Salaam who closely follow and support the work of the MICT (Friends of the Mechanism) to discuss matters related to the work of the MICT. President Meron reiterated the importance of continued cooperation between Tanzania and the MICT and thanked the government of Tanzania and the Friends of the Mechanism for their continued support. (IRMCT News)

UN GA elects Turkish judge to MICT roster: On 21 December 2018, the United Nations General Assembly (UNGA) elected Judge Yusuf Aksar of Turkey to the judicial roster of the International Residual Mechanism for Criminal Tribunals (the  MICT). Judge Aksar was elected from the list of candidates submitted by the United Nations Security Council following nominations from Member States of the United Nations. His election to the MICT’s judicial roster was necessitated by the departure of Judge Bakone Justice Moloto of South Africa and the non-renewal of the term of Judge Aydin Sefa Akay of Turkey. (IRCMT Press Release)

ICLMR contributors to this article include: Beatrice Tesconi, Jess Lacey, Margaux Lenormand, Shannon Raj Singh, Zuzana Drexlerova, Louise Dumas, Portia Karegeya, Catherine Dunmore, Alex Foster, Ari Bilotta, Michael Herz, Zoja Bajželj, Harriet Schiavone, Kate Gibson Boyd and Haydee Dijkstal. Contributor bios can be found HERE. This week on ATLAS IG, learn more about ICLMR contributor Catherine Dunmore. @catdunmore

Sareta Ashraph