ICL MEDIA REVIEW: 28 JANUARY – 3 FEBRUARY 2019

ICC PTC II order submissions from parties on joining Yekatom and Ngaïssona case:  Pre-Trial Chamber II has called for submissions on whether two cases arising out of the situation in the Central African Republic should be joined. The two cases, the Prosecutor v Patrice-Edouard Ngaïssona and the Prosecutor v. Alfred Yekatom, are in pre-trial stage, with hearings listed to confirm the charges on 18 June 2019 and 30 April 2019 respectively. Under Rule 136 of the Rules of Procedure and Evidence, persons who are accused jointly shall be tried together. Article 64(5) of the Rome Statute provides that the court may join or sever proceedings and in light of this the Chamber has called for submissions from the parties.  It has ordered that the Prosecutor provide observations by 4 February 2019 and the Defence for each accused provide observations by 11 February 2019. Both accused are alleged to have committed war crimes and crimes against humanity in the Central African Republic between December 2013 and December 2014. (Yekatom OrderNgaïssona Order)

Senior judge quits MICT: Christoph Flügge, German judge of the International Residual Mechanism for Criminal Tribunals (MICT), has resigned from his position. It is reported that he cited political interference from the United States and Turkey. A report in the Guardian reports that he claimed that the US had threatened judges after moves were made to investigate US soldiers for actions in Afghanistan, and that Turkey had made baseless allegations to bring an end to the term of a Turkish judge at the MICT. According to the Guardian, Judge Flügge expressed his frustration with the US attitude towards the International Criminal Court, the UN’s failure to intervene in Turkey’s actions, and concluded that these developments showed the diplomatic world had no need for an independent judiciary. Judge Flügge was appointed to the bench at the MICT in 2011. Prior to that, he had served as a judge for the International Criminal Tribunal for the Former Yugoslavia, which he was appointed to in 2008. (The Guardian)

Amnesty Claims AirBnB, Booking.com and Other Tourism Companies Fueling War Crimes on Israeli Settlements:  Amnesty International has released a report claiming that major tourism companies are contributing to human rights violations in Palestine by promoting tourist attractions on Israeli settlements in occupied Palestinian territories. Amnesty claims that Israeli settlements in these areas violate international humanitarian law and amount to war crimes.  According to the report, by listing tourist attractions in these areas, the tour companies are encouraging settlements in occupied territories to expand, often through forced evictions of Palestinians . The report calls for Airbnb, Booking.com, Expedia and TripAdvisor to remove listings in occupied territories, arguing ‘It’s not enough to condemn the settlements as illegal but allow the commercial activities that make them profitable to continue.’ (Amnesty International)

Defence in Turinabo et al., challenge MICT jurisdiction on charge of incitement to commit contempt: On 22 January 2019, the Defence in the Turinabo et al case filed a motion challenging the jurisdiction of International Residual Mechanism for Criminal Tribunals (MICT) in relation to its indictment against the accused for incitement to commit contempt and argued that it should be removed as one of the counts in the indictment, for the following reasons: (1) Citing the Noshogoza, Beqaj, Haraqija, and Taylor case, the Defence noted that no convictions for such an offence had been upheld, particularly when subject to challenge by the accused, with the one exception being the Rasic case before the ICTY; (2) According to the Defence, Article 1(4) of the MICT Statute which confers jurisdiction to the MICT to prosecute any person who knowingly and willfully interferes or has interfered with the administration of justice limits the MICT’s jurisdiction over contempt to those who actually carry out the offence of contempt rather than those that incite others to do so; (3) The Defence added that an examination of the object and purpose of the Statute 14 is necessary to establish whether and to what extent incitement for contempt may be applied, and that there is no justification for expansively interpreting Article 1(4) to include incitement for contempt in light of the object and purpose of the MICT Statute; (4) The Defence further argued that the factual allegations allegedly underpinning such criminal liability must fulfill the necessary legal elements of the offence and that in the present case, the allegations in the indictment do not constitute incitement to commit contempt. Since Rule 90(B) limits incitement to those that commit contempt and the accused would not have been incited to commit contempt but rather to incite it, the alleged conduct of the accused would fall outside Rule 90(B), and (5) Finally, relying on the Appeals Chamber decision in Bemba et al that the falsity of the evidence of a witness is beyond anyone else’s control except the witness himself, the Defence argued that a person cannot be  liable for incitement of a wholly autonomous choice. (MICT Joint Defence Motion Challenging Jurisdiction – Incitement)

Victims respond to TFV Board of Directors notification on activities in Uganda: On 25 January 2019, the ICC’s Office of Public Counsel for Victims (OPCV) in her capacity as Common Legal Representative of victims in the Ongwen case and counsel representing victims in the Situation in Uganda, and Counsel of the OPCV representing victims in the Kony et al. case submitted their joint observations on the Trust Fund for Victims’ Notification dated 19 December 2018 (the Notification). On 24 December 2018, Pre-Trial Chamber II  issued a Decision inviting the Office of Public Counsel for the Defence, the Defence for Mr Ongwen, the OPCV, the Legal Representatives in the Ongwen case and the Prosecution to submit their observations on the Notification by 25 January 2019. On 17 January 2019, the Prosecution filed its Observations on the Notification, supporting the undertaking of the six assistance projects identified by the TFV.

Counsel commended the TFV’s efforts and willingness to continue providing assistance to as many victims as possible in the Situation in Uganda. They submitted that the activities proposed in the Notification did not appear to pre-determine any issue to be ruled by the Court, nor violate the presumption of innocence or prejudice or appear inconsistent with the rights of accused and suspects and a fair and impartial trial. As such, counsel submitted that the Chamber should approve the proposed projects without delay to permit their prompt implementation by the Trust Fund for Victims (TFV).  In additional comments for the consideration of the TFV, counsel suggested, among other things, that empowering communities who are in urgent need of assistance is of the utmost importance in order to ensure the sustainability of the TFV’s assistance program and its impacts,  that the lessons learned from the activities conducted over the last 10 years should be assimilated and the appropriateness and responsiveness of the newly selected projects ensured. They noted that although it appeared that the security situation in Northern Uganda had improved, good practices for the protection of individuals benefiting from the projects to be implemented should nonetheless be put in place. (ICC Pre-trial Chamber II, Situation in Uganda)

South Africa’s Democratic Alliance to file an Article 15 communication to ICC Prosecutor concerning the situation in Zimbabwe: Amidst the escalating human rights situation in Zimbabwe, Mmusi Maimane, the leader of Democratic Alliance (DA), South Africa’s opposition party, issued an official statement in which he pledged to make “immediate interventions” to resolve the crisis. Mr Maimane, who also serves as chairman of the Southern African Partnership for Democratic Change intends to pay an official visit to the country and meet with Zimbabwe’s opposition leaders. Significantly, he indicated several “practical solutions” to address the dire situation in Zimbabwe. Besides a few measures which will be implemented domestically in South Africa via the national parliament, the statement highlighted the intention to engage the ICC as well as the UN. Firstly, the DA will seek to file a communication to the ICC Prosecutor and trigger Article 15 of the Rome Statute. Article 15 vests the Prosecutor with the right to initiate investigations proprio motu based on information suggesting that alleged crimes may fall within the ICC’s jurisdiction. Furthermore, the DA will formally approach the UN Commissioner on Human Rights and the UN Human Rights Council to intervene in the ongoing crisis. In light of South Africa’s upcoming seat on the UN Security Council during 2019 and 2020, the party will request the country’s President Ramaphosa to implement the DA’s position and “advance liberal democracy and stand up for justice, freedom and human rights across the globe.” Since President Emmerson Mnangagwa came to power in 2018, Zimbabwe has been hit by a wave of unrest. According to NGOs active in the country, this has been met with lethal force, torture and arbitrary detentions. The Zimbabwe Human Rights Commission (ZHRC) issued a report towards the end of January 2019 alleging human rights violations reportedly committed by the police and the military. It estimated that at least 12 people have been killed and over 600 persons arrested. (Democratic Alliance official

Patrice-Edouard Ngaïssona makes first appearance before PTC II after transfer to The Hague: On 25 January 2019, Patrice-Edouard Ngaïssona had his first appearance before Pre-Trial Chamber II (PTC) of the International Criminal Court (ICC), after being transferred to The Hague by French authorities. The object of the hearing is for the confirmation of charges.  This will determine whether there is sufficient to establish substantial grounds to believe that Mr. Ngaïssona committed each of the crimes alleged. On 7 December 2018, The PTC issued an arrest warrant for Mr. Ngaïssona for crimes allegedly committed in the Central African Republic. The charges alleged involve both war crimes and Crimes against Humanity, such as murder and attempted murder, extermination, forcible transfer of population, imprisonment/severe deprivation of physical liberty, torture, directing attacks against people or materials involved in humanitarian assistance, and enlistment of child soldiers The PTC is composed of Judge Antoine Kesia-Mbe Mindua, Presiding, Judge Tomoko Akane, and Judge Rosario Salvatore Aitala. Mr. Ngaïssona is represented by Mr. Eric Plouvier. (ICC Press Release)

MONUSCO Reports Mass Graves Found in DR Congo with 500+ Dead:  A preliminary UN investigation has reported that at least 535 people were killed in the Democratic Republic of the Congo following an outbreak of violence in December last year, just weeks before the election. The violence reportedly occurred during inter-ethnic clashes between the Banunu and Batende communities.  Joint investigations with local authorities have so far revealed 59 burial sites, though it is not yet known who is responsible for the killings. 16,000 people have fled the affected area and emergency aid has been dispatched to assist the refugees. MONUSCO has stated that it strongly condemns the violence and is ready to support the Congolese authorities to achieve justice and reconciliation. (UN News)

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, we highlight the work of contributor, Rebecca Campbell, an Australian lawyer currently working at Legal Aid NSW to provide civil law assistance to disadvantaged clients.

Sareta Ashraph