ICL MEDIA REVIEW: 17 – 24 June 2019

ICC Prosecutor Calls on Sudan’s Transitional Military Council to Hand Over Bashir: The ICC prosecutor has called upon the transitional authorities in Sudan to turn over former president Omar al-Bashir to the International Criminal Court. There has been an ICC warrant out for Mr Al-Bashir’s arrest since 2009 for alleged crimes against humanity and genocide in Darfur between 2003-2008. ICC Chief Prosecutor Fatou Bensouda has stated that the Sudanese transitional authorities, who took custody of Mr Al-Bashir soon after he was ousted in April, are obligated to transfer him to the ICC unless they are able to demonstrate that they are willing and able to prosecute him for the same charges. (Al Jazeera)

Joint Investigation Team names for suspects for the downing of flight MH17, trial to start in 2020On 19 June 19 2019, the Public Prosecution Service of The Netherlands announced that it has charged four suspects for their alleged involvement in the downing of the Malaysia Airlines flight MH17 in July 2014, which led to the death of all 298 people on board. The Dutch-led Joint Investigation Team (JIT) had previously concluded that the plane was shot down by a Buk Telar missile originated from the 53rd anti-aircraft military brigade based in the Russian city of Kursk. Today, the JIT revealed the identity of the four suspects, naming them as Igor Girkin, Sergey Dubinskiy and Oleg Pulatov from Russia, and Leonid Kharchenko, a Ukranian national.  Mr Girkin is a former colonel in Russia’s FSB Intelligence service, and was minister of defence in the Moscow-backed Donetsk People’s Republic (DNR). According to the investigators, the accused were allegedly responsible for bringing the anti-aircraft system from Russia to eastern Ukraine, forming “a chain linking Donetsk with the Russian Federation”. The suspects will be prosecuted before the District Court of The Hague in a trial that will start on 9 March 2020. “The means of evidence these suspicions are based on will be elaborated on during the criminal proceedings, then the judge will pass sentence. The suspects are innocent until the contrary is proven in court,” stated Prosecutor Fred Westerbeke. Russia has denied all involvement in the shooting down of the MH17 and complained about allegedly being excluded from the investigation. (BBCThe GuardianOM.nl)

France Arrests Chadian Rebel Leader on Crimes Against Humanity Charges: France has arrested Chadian rebel leader, General Mahamat Nouri, and two other people on charges of crimes against humanity. The Paris Prosecutor’s office states that it has investigated Mr Nouri over acts committed in Chad and in Sudan between 2005 and 2010. Mr Nouri served as a minister under former president Hissene Habre, who was convicted of crimes against humanity in 2016 by a Senegalese Court. Mr Nouri then founded the Union of Forces for Democracy and Development,  a rebel coalition to challenge Habre’s successor, current president Idriss Deby.  (NY Times)

Tribunal finds China is harvesting organs from detainees: The Independent Tribunal into Forced Organ Harvesting from Prisoners of Conscience in China (China Tribunal) has released its findings during a public hearing in London on 17 June 2019. It found that in the context of the alleged acts of organ harvesting examined, crimes against humanity had been committed including “murder; extermination; imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; torture; rape or any other form of sexual violence of comparable gravity; persecution on racial, national, ethnic, cultural or religious grounds that are universally recognized as impermissible under international law; and enforced disappearance.” However, the tribunal found there was insufficient evidence to conclude that the specific intent required for the crime of genocide existed.

The tribunal recommended that the International Court of Justice be requested to deliver an advisory opinion on the issue of organ harvesting, that the Human Rights Council create a “mandate for a Special Rapporteur to investigate these allegations of forced organ harvesting of prisoners of conscience.” The China Tribunal was created as a Peoples’ Tribunal which has no legal authority but hears evidence from witnesses and makes a determination on whether international crimes have been committed. Peoples’ Tribunals are aimed at providing some resolution to survivors or the loved ones of those killed or who have died since the relevant event. They may also provide material that can be used to urge official international organisations to further action and create an historical ‘evidence-based’ record. The China Tribunal heard witnesses in December 2018 and April 2019. (China TribunalForbes)

Mohamed Morsi dies in court: Mohamed Morsi, Egypt’s first democratically elected civilian president, has died while in court during his trial for espionage charges. He fainted after the case was adjourned and was transported to hospital but was pronounced dead on arrival. Mr Morsi has been imprisoned since he was ousted during a coup in 2013. Mr Morsi was a senior member of the Muslim Brotherhood, who now accuse the Egyptian government of “assassinating” Morsi through years of poor prison conditions. The Brotherhood made a complaint to the African Commission alleging that his rights under the African Charter had been violated while in detention. In 2014, the Muslim Brotherhood submitted a complaint to the International Criminal Court (ICC) requesting that the prosecutor investigate crimes against humanity allegedly committed by the army. It included a declaration from Mr Morsi that Egypt accepted limited jurisdiction by the court. This complaint was ultimately rejected by the ICC. (The Guardian)

Victims respond to appeal brief of Saif Al-Islam Gaddafi on admissibility challenge: On 11 June 2019, the ICC Appeal Chamber released the victim responses to the Defence Appeal Brief on the Decision on the admissibility of the Saif Al-Islam Gaddafi case. The Legal Representative for the victims opposed in full all grounds and sub-grounds of appeal arguing that the Defence “(i) fails to demonstrate that the Pre-Trial Chamber committed any error that materially affected the “Decision on the ‘Admissibility Challenge by Dr Saif Al-Islam Gadafi pursuant to Articles 17(1)(c), 19 and 20(3) of the Rome Statute’” (the “Impugned Decision”); and (ii) largely reiterates arguments unsuccessfully advanced before the Pre-Trial Chamber.” The Legal Representative submitted that the onus was on the appellant to demonstrate that the Chamber had erroneously interpreted the law but that the Defence had failed to demonstrate that the Chamber had erred in law, or that it failed to provide a reasoned decision. As such, the Impugned Decision should be upheld and the Defence Appeal dismissed in its entirety.

On 20 May 2019, the full brief on admissibility by the Defence was filed with the Appeals Chamber to challenge the Impugned Decision.  The Defence challenged the decision on the grounds that first, the Chamber had “erred in law in holding that Articles 17(1)(c) and 20(3) of the Statute may only be satisfied where a judgment on the merits of a case has acquired res judicata effect” and second, that the Chamber “erred in law and fact, and procedurally, by failing to determine that Law No. 6 of 2015 [ on General Amnesty] was applied to Mr Gaddafi and that such application rendered his conviction final. It was held that a judgment which acquired a res judicata effect is required for the ne bis in idem principle to attach for purposes of an admissibility challenge and the judgment by the Tripoli Criminal Court did not constitute a “final decision on the merits” and was therefore “[in]sufficient for satisfying Articles 17(1)(c) and 20(3) of the Statute”.

The Legal Representative for the victims rejected both the grounds of appeal submitted by the Defence.  The first ground of appeal was rejected because according to the Legal Representative, the Defence failed to demonstrate that the Chamber erred in conducting its analysis underlying the interpretation of the relevant provision, and, in particular, the term ‘has been tried’ contained within Article 20(3) of the Statute. The second ground of appeal was opposed for the four reasons: the Defence “(i) fails to demonstrate a material error; (ii) puts forward nothing but a general disagreement with the Chamber’s factual findings; (iii) impermissibly reiterates previous arguments – at times verbatim; and (iv) misrepresents the Impugned Decision.” None of these factors, the Legal Representative submits, is capable of satisfying the stringent requirements of the applicable standard of review.” (Victims Response to Appeal, ICC Appeals ChamberICLMR post on Gaddafi Appeal Brief)

Judge Marc Perrin de Brichambaut provides further observations on Lubanga’s request for his disqualification: On 14 June 2019, Judge Marc Perrin de Brichambaut provided additional observations in the Lubanga case.  On 10 April 2019, the Defence for Mr Lubanga requested the Presidency to disqualify Judge Perrin de Brichambaut in the reparations proceedings of the case on the grounds that, in a 15 December 2017 Decision, the Judge had  pronounced his opinions on matters that were still to be submitted to debate and would only be decided several months later calling into question his impartiality.

Judge Perrin de Brichambaut first offered his written observations in response to the request on 16 May 2019. The Defence for Mr Lubanga filed a request seeking leave to reply to the Judge’s Observations and to admit an audio-visual recording of the 17 May 2017 Presentation by Judge Perrin de Brichambaut.  The Ad Hoc Presidency, in consultation with the plenary of judges, authorised the Defence to communicate a copy of the audio-visual recording to it on 11 June 2019, just a few days before the Plenary that was scheduled for 17 June 2019. In his Additional Observations, Judge Perrin de Brichambaut stated that, in his view, the decision by the Ad Hoc Presidency raised issues implicating fundamental rights that must be respected in any type of judicial proceedings. He was of the view that the decision of the Ad Hoc Presidency contravened basic notions of fairness in three ways: 1) “First, the Judge in question must be provided with an opportunity to respond to the request for leave to reply.”, 2) “the person against whom allegations are made must also be provided with an opportunity to challenge the evidence introduced “, and 3) “as a consequence of the two aforementioned violations, the decision contravenes Article 74(2) of the Statute, applied per analogiam, stating that a decision by the Court must be based “only on evidence submitted and discussed before it” (emphasis added).(Additional observationsLubanga request for disqualification)


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.

Sareta Ashraph