ICL MEDIA REVIEW: A REVIEW OF ICL & HRL DEVELOPMENTS, 2 – 9 September 2019

UN MICT Appeals Chamber dismisses Prosecution request to delay Ngirabatware Review Hearing: On 20 August 2019, the Appeals Chamber of the UN MICT rejected the Prosecution’s request to postpone the scheduled Review Hearing on Ngirabatware’s convictions.  On 9 August 2019, the Prosecution had requested a postponement of the Review Hearing, which the Appeals Chamber scheduled for September 2019 after several prior adjournment, until the conclusion of the Turinabo et al. case also before the MICT.  The Prosecution argued that an adjournment was imperative and in the interest of justice, for reasons including, that evidence in the Turinabo case concerns the circumstances of the Review, the Prosecution is unable to access important evidence regarding the Review and because the Prosecution recently seized two telephones from Mr Ngirabatware in detention which might be relevant.  . The Appeals Chamber reasoned its decision rejecting the Prosecution request by stating that delaying the Review Hearing until after the Turinabo trial could result in the Review being delayed for as much as two years; jeopardising Mr Ngirabatware’s right to expeditious proceedings.  The Appeals Chamber was also not persuaded that the Prosecution has been unable to sufficiently investigate the matter for the Review considering its ability to move forward in the Turinabo proceedings.  In December 2012, the ICTR convicted Ngirabatware of committing direct and public incitement to genocide, instigating and abetting genocide, and rape as a crime against humanity. In 2014, the Appeals Chamber of the ICTR affirmed the first two convictions and overturned the last. In this Review Hearing, the UN MICT will review the decision of the AC of the ICTR. It is scheduled to begin on 16 September 2019 in Arusha, Tanzania. (MICT Decision)

UN MICT makes decision on Provisional Release of Ndagijimana and Turinabo: On 3 September 2019, the UN MICT dealt with three motions concerning the facilitation of the provisional release for two accused in the ongoing contempt proceedings before the MICT; Jean de Dieu Ndagijimana and Maximilien Turinabo.  The motions included; 1) a motion from Mr Ndagijimana on 3 July 2019 requesting provisional release to Tanzania; 2) a motion from Mr Ndagijimana on 8 August 2019 requesting that the Government of Rwanda is compelled cooperate with provisional release of the two accused into its territory; and 3) a motion from Mr Turinabo on 15 August 2019 requesting the Registrar to take steps to urgently implement the provisional release which had been ordered on 29 March 2019.  In his decision, Single Judge Vagn Joensen, noted his decision of 29 March, and the Appeals Chamber’s affirmation of this decision on 5 August 2019.  Judge Joensen then noted because both Mr Ndagijimana and Mr Turinabo had been transferred to Rwanda on 22 August following Rwanda’s agreement to cooperate with the order, the three motions were moot and therefore dismissed.The two have been indicted for contempt of the ICTR and UN MICT, and incitement to commit contempt of the ICTR and UN MICT. The Prosecution alleges that the individuals pressured and sought to influence protected witnesses in an attempt to overturn Ngirabatware’s final conviction. (MICT Decision)

ICC Appeals Chamber orders Prosecutor to reconsider Gaza flotilla prosecution: The Appeals Chamber (AC) of the International Criminal Court (ICC) has upheld the decision of the Pre-Trial Chamber I (PTC) ordering the ICC Prosecutor to reconsider her decision to close the investigation into war crimes allegations relating to the May 2010 Gaza flotilla incident, in which Israeli forces boarded the Mavi Marmara vessel and several people on board were killed or wounded. The case was first filed in May 2013 by the Comoros, where the ship was registered.

The Prosecutor had initially declined to open an investigation on the basis that the situation was not of sufficient gravity to justify further action by the ICC. On 16 July 2015, the PTC, by a majority, issued a decision requesting the Prosecutor to reconsider.

The Prosecutor filed her final decision on 29 November 2017, maintaining that there was no reasonable basis on which to investigate. On 15 November 2018, the PTC granted the Comoros’ request for the PTC to review this decision and directed the Prosecutor to reconsider her final decision. The Prosecutor appealed. In its judgment of 2 September 2019, the AC, by a 3-2 majority, dismissed both grounds of appeal.

The first issue was whether the PTC, having requested the Prosecutor to reconsider her decision and having received the new decision which she considered to be final, may conduct a further review and request a further reconsideration of the decision. The AC held that the PTC is not precluded from reviewing whether a decision of the Prosecutor that she considers to be ‘final’ actually amounts to a proper final decision. The scope of the PTC’s review is limited to establishing whether the Prosecutor carried out the reconsideration in accordance with the PTC’s directions. The second issue was whether the Prosecutor, when reconsidering her decision not to initiate an investigation, is bound by the PTC’s conclusions on law or fact. The AC held that it was not open to the Prosecutor to disagree with or fail to adopt a legal interpretation of the PTC that is contained in a request for reconsideration (on both substantive and procedural points of law). The AC observed that where the Prosecutor disagrees with the PTC’s interpretation of the applicable law, she may use any available routes of appeal. On questions of fact, the PTC may oblige the Prosecutor to take into account certain factors or information, but it is not the role of the PTC to direct the Prosecutor as to how to assess this information, what weight to attach to different factors and which factual findings she should reach.

The AC concluded that the Prosecutor did not carry out reconsideration of her decision in accordance with the PTC’s decision. The AC directed that the Prosecutor must reconsider her decision in accordance with the PTC’s decision and this judgment of the AC. The Prosecutor must notify her final decision to the PTC and the parties by 2 December 2019. (ICC judgment)

UN Expert Panel issues report on possible war crimes in Yemen and list of alleged responsible individuals: The Group of International and Regional Eminent Experts on Yemen (‘The Group of Experts’) released its report documenting “emblematic patterns” of gross violations of international humanitarian law and human rights committed by all parties to the conflict. The reported crimes have allegedly been committed through airstrikes, indiscriminate shelling, sniping, and landmines. Starvation as a weapon of war, rape, and gender-based violence has been especially emblematic for the conflict in Yemen, the Group said. The Group expressed its concern over a continuous, pervasive lack of accountability of those responsible and said the crimes qualify as war crimes.

The situation in the country is complicated by the multiple fragmented conflicts between the Government and other belligerent groups, as well as non-state actors including ISIS in Iraq and Al-Qaeda. Since the beginning of the conflict in 2014, the situation has continuously deteriorated, spread to other parts of the territory, killing over 7,292 civilians.  Yemen, which has been in a permanent state of non-international armed conflict since 2014 has been declared as the world’s worst humanitarian crisis. In 2019, relevant UN agencies released findings detailing conditions of famine which are reportedly so widespread, that Yemen turned into “the world’s largest man-made food crisis.” As well as this, according to the official UN figures, over 3,034 children were recruited to take part in hostilities.

The fact-finding mission faced multiple challenges emanating from the lack of cooperation from the government of Yemen, Egypt, the UAE, and Saudi Arabia. The atmosphere of fear reportedly inflicted by the responsible authorities hampered the safety of the witnesses, the victims and affected the Group’s capacity to gather more evidence. Despite the constraints, the Group interviewed over 600 witnesses, gatherering documentary and open-source material.

The Group implicated individuals and groups allegedly responsible for these violations. The list of individuals is Annexed to the Report and includes prominent military and state officials of Yemen and the coalition. They include Yemeni President Abd Rabbu Mansour Hadi; Saudi Crown Prince Mohammad Bin Salman; President of Southern Transitional Council, Major General Aydaroos al-Zubaidi and others in command.  The examined evidence links the governments of Yemen, Saudi Arabia, the UAE and affiliated groups with wilful killings, torture, arbitrary arrests and enforced disappearances of political and religious opponents in territories under their control. The government of Yemen and the countries of the coalition are also suspected of wide-spread violations of the civil and political rights, including the freedom of religion, belief, and assembly. Further, all countries to the conflicted and their security forces are alleged to have committed rape and other forms of sexual violence.  The “third countries” which have been taking part in the conflict by providing ammunition, technology, and logistics could too bear responsibility for war crimes. The Report specifically lists France, Iran, The United States, United Kingdom and Northern Ireland among those potentially responsible.

The Group called on all parties to the conflict to immediately cease all acts of violence and deprivation of liberty, adhere to the applicable humanitarian law standards and urged the UN Security Council to secure there will be no impunity of those responsible for the documented crimes.  (UN OHCHR Press-releaseUN OHCHR ReportThe GuardianBBC)

UN Committee Against Torture orders Bosnia to pay compensation to victims of rape during war: On 29 August 2019, the UN Committee Against Torture, in its first case involving sexual violence, found that Bosnia had violated the UN Convention against Torture. Bosnia must provide the complainant – a Bosnian Muslim woman who was raped by a Bosnian Serb soldier in 1993 near Sarajevo -prompt, fair and adequate compensation, free medical and psychological care, and a public apology. The Committee also ordered Bosnia to set up a nationwide war crimes reparation scheme so that other victims owed similar compensation could also receive it and rejected Bosnia’s statute of limitations under which many war crimes claims from the 1990s are deemed as too old to prosecute. (The New York Times)

Article 15 complaint submitted to ICC on culpability for Brazilian fires: An Article 15 complaint has been submitted to the ICC by The Angels of Liberty Institute calling for an investigation into the Brazilian president Jair Bolsonaro’s responsibility for the fires in the Amazon rain forest. It has been reported that the Institute’s states that there is a situation of “cultural genocide, due to the extermination of elements of local cultures, including the annihilation of biodiversity” and that President Bolsonaro should be investigated for committing crimes against humanity, advocating for the genocide of the Amazon’s indigenous peoples, as well as torture, forced disappearances and indiscriminate homicide and extermination policies. (Prensa Latina)

US offers Maduro amnesty in exchange for leaving office; rights group calls for UN Commission of Inquiry: The United States has offered amnesty to President Nicolás Maduro of Venezuela if he voluntarily steps down. The US State Department’s special envoy for Venezuela, Mr. Elliott Abrams, stated “We’re not after him. We want him to have a dignified exit and go.” President Maduro was re-elected on 20 May 2018 to serve another six year term amidst much controversy. On 23 January 2019, political rival Juan Guaidó challenged Maduro’s authority, declared himself acting president, and was recognised as the legitimate president of Venezuela by a number of countries including the US.

The ICC has an ongoing preliminary examination into abuses by Venezuela’s security forces beginning in 2014, during Maduro’s first term as president. The preliminary examination is pursuant to allegations that “State security forces frequently used excessive force to disperse and put down demonstrations, and arrested and detained thousands of actual or perceived members of the opposition, a number of whom would have been allegedly subjected to serious abuse and ill-treatment in detention.”

In addition, Human Rights Watch, along with eleven Venezuelan and international human rights organisations, are calling on the United Nations Human Rights Council to establish a commission of inquiry during its September 2019 session to investigate serious human rights violations in Venezuela, “including, but not limited to, torture and inhuman treatment, arbitrary detention, discrimination, enforced disappearances, as well as violations of freedom of expression, the right to life, and the rights to health and food.”  (The New York TimesHRW)

 

ICLMR contributors to this article include: Beatrice Tesconi, Jess Lacey, Margaux Lenormand, Shannon Raj Singh, Zuzana Drexlerova, Louise Dumas, Portia Karegeya, Pooja Larvin, Ryan Corbett, Catherine Dunmore, Ari Bilotta, Michael Herz,  Zoja Bajželj, Harriet Schiavone, Kate Gibson Boyd and Haydee Dijkstal.Contributor bios can be found HERE.

 A special welcome to Ryan Corbett, an American-qualified lawyer who works in the field of refugee law and citizenship issues, to the ICLMR team - more about Ryan’s work is featured on ATLAS IG.

Sareta Ashraph