At the International Criminal Tribunal for the former Yugoslavia (ICTY), a number of interesting developments transpired in 2013. One of those was the acquittal and release of Momčilo Perišić, the former Chief of the Yugoslav Army (VJ) General Staff. On 6 September 2011, Trial Chamber I found Perišić guilty of aiding and abetting crimes against humanity and violations of the laws or customs of war in Sarajevo and Srebrenica (Bosnia and Herzegovina) between 1993 and 1995 and as a superior for failing to punish crimes against humanity and violations of the laws or customs of war in Zagreb (Croatia) in 1995. Perišić was sentenced to 27 years’ imprisonment.¹⁴³ However, on 28 February 2013, the Appeals Chamber reversed by majority, Judge Liu partially dissenting, Perišić’s convictions.¹⁴⁴ The judges found that although Perišić implemented the Yugoslav Supreme Defence Council’s policy of providing support to the Army of the Republika Srpska (VRS) through the VJ, it was not proven that this policy was directed at criminal activities as opposed to legitimate war efforts. It was also not proven that Perišić specifically directed assistance towards crimes committed by the VRS in Sarajevo and Srebrenica. As a result, Perišić could not be held liable as an aider and abettor to the crimes in Bosnia and Herzegovina.¹⁴⁵ As to the crimes in Croatia, which took place during the shelling of Zagreb and which were committed by soldiers from the Serbian Army of the Krajina (SVK), the judges held that Perišić did not possess effective control over these SVK soldiers. In fact, it was noted that Perišić instructed that the shelling of Zagreb cease (but that this instruction was not followed). As a consequence, Perišić could not be held liable as a superior.¹⁴⁶

One month later, on 27 March 2013, Trial Chamber II found Mićo Stanišić and Stojan Župljanin guilty of crimes against humanity and war crimes committed in Bosnia and Herzegovina in 1992 and sentenced them each to 22 years’ imprisonment.¹⁴⁷ Stanišić, Minister of the Interior of Republika Srpska, and Župljanin, former Chief of the Regional Security Services Centre of Banja Luka and member of the Crisis Staff of the Autonomous Region of Krajina, were convicted of serious crimes committed in several municipalities. Many of the crimes were committed in infamous detention facilities in Prijedor, including Omarska, Keraterm and Trnopolje. The judges held that both men participated in a joint criminal enterprise (JCE), “the objective of which was to permanently remove Bosnian Muslims and Bosnian Croats from the territory of the planned Serbian state through the commission of crimes on a massive scale”.¹⁴⁸

A JCE was also established in the Prlić et al. case, one of the ICTY’s largest and most complex cases (the judgement contained 2,629 pages, divided into six volumes).¹⁴⁹ On 29 May 2013, Trial Chamber III convicted six senior officials from the wartime Croat entity of Herceg-Bosna for crimes against humanity, violations of the laws or customs of war, and grave breaches of the Geneva Conventions committed between 1992 and 1994. All six men were found guilty, (Presiding) Judge Antonetti dissenting as to the form of responsibility, for their participation in a JCE, which had the objective to permanently remove the Muslim population from Herceg-Bosna. Jadranko Prlić, former president of the Croatian Defence Council (HVO), and later of the government of the Croatian Republic of Herceg-Bosna, was sentenced to 25 years’ imprisonment; Bruno Stojić, former head of the HVO Department of Defence to 20 years; Milivoj Petković, chief of the HVO Main Staff and later deputy commander of the HVO forces to 20 years; and Valentin Ćorić, chief of the Military Police Administration and later on Minister of the Interior to 16 years.¹⁵⁰ Slobodan Praljak, former Assistant Minister of Defence of Croatia and later commander of the Main Staff of the HVO, was convicted of 20 counts and was sentenced to 20 years’ imprisonment and finally, Berislav Pušić, former president of the HVO commission in charge of the exchange of prisoners and other persons and head of the HVO Commission in charge of detention facilities, was convicted of 18 counts and received 10 years’ imprisonment.¹⁵¹ The siege and shelling of Mostar and the infamous destruction of the Old Bridge was also addressed by the Trial Chamber. About this, President Antonetti, reading the summary of the judgment, stated:

On 8 November 1993, as part of the offensive, an HVO tank fired throughout the day at the Old Bridge until it was unusable and on the verge of collapse. The Bridge then collapsed on the morning of 9 November 1993. The Chamber finds, by a majority, with the Presiding Judge dissenting, that although the Bridge was used by the Army of Bosnia-Herzegovina (ABiH) and thus constituted a legitimate military target for the HVO, its destruction caused disproportionate damage to the Muslim civilian population of Mostar.¹⁵²

Only one day later, on 30 May 2013, the majority of Trial Chamber I, Judge Picard dissenting, acquitted of all charges Jovica Stanišić, former Chief of the Serbian State Security Service and Franko Simatović, former employee of the Serbian State Security Service.¹⁵³ According to the Prosecution, the two men had participated in a JCE, the purpose of which was the forcible and permanent removal of the majority of non-Serbs from large areas of Croatia and Bosnia-Herzegovina, and had directed, organized, equipped, trained, armed, financed, planned, ordered, and otherwise aided and abetted the crimes that were committed by the Serbian Security Service units.¹⁵⁴ The judges found that these units had indeed committed serious crimes (persecution as a crime against humanity) against non-Serb civilians from Bosnia-Herzegovina and Croatia between 1991 and 1995, but they held, Judge Picard dissenting, that the two men could not be held criminally responsible for these crimes as they lacked the intent to further the JCE’s common criminal purpose.¹⁵⁵ In addition, the majority found that Stanišić and Simatović had not planned or ordered the crimes and that in the instances that the two had assisted the units, this assistance was not specifically directed towards the commission of crimes.¹⁵⁶

In the Karadžić case, the Appeals Chamber unanimously reversed, on 11 July 2013, Karadžić’s acquittal for genocide in municipalities of Bosnia-Herzegovina, which was entered at the close of the Prosecution case on 28 June 2012 by Trial Chamber III pursuant to Rule 98bis ICTY RPE, which states that “[a]t the close of the Prosecutor’s case, the Trial Chamber shall, by oral decision and after hearing the oral submissions of the parties, enter a judgement of acquittal on any count if there is no evidence capable of supporting a conviction”.¹⁵⁷ According to Trial Chamber III, there was “no evidence, even taken at its highest, which could be capable of supporting a conviction for genocide”, through Karadžić’s participation in a JCE, the purpose of which was to permanently remove Bosnian Muslims and Bosnian Croats from municipalities in Bosnia and Herzegovina between 31 March 1992 and 31 December 1992.¹⁵⁸ Conversely, the Appeals Chamber was of the opinion that the Trial Chamber erred by finding that evidence adduced by the Prosecution was incapable of proving certain types of genocidal acts.¹⁵⁹ It held that certain evidence, taken at its highest, could prove that the underlying genocidal acts of causing serious bodily or mental harm¹⁶⁰ and the underlying genocidal act of deliberately inflicting conditions of life calculated to bring about the physical destruction of victims¹⁶¹ in fact occurred. In addition, the Appeals Chamber was of the opinion that the Trial Chamber’s conclusion that the evidence adduced by the Prosecution was incapable of proving that Karadžić (and other members of the JCE) possessed relevant genocidal intent was incorrect.¹⁶² To illustrate this point, the Appeals Chamber noted for instance that Karadžić allegedly stated that his goal was “to get rid of the enemies in our house, the Croats and Muslims, and not to be in the same state with them [anymore]”¹⁶³ and that Muslims would disappear and be annihilated if war started in Bosnia.¹⁶⁴ The Appeals Chamber consequently sent the matter back to the Trial Chamber for further action, taking into account its judgment.

In the summer of 2013, something peculiar happened at the ICTY, which sparked a lot of discussion in the media. On 6 June 2013, the Danish Judge Frederik Harhoff circulated a private e-mail to 56 recipients,¹⁶⁵ in which he criticized the Appeals Chamber’s acquittals in the Gotovina (see last year’s Year in Review) and Perišić (see above) cases and the Trial Chamber’s acquittal in the Stanišić/Simatović (see above) case. In his letter, he referred, among other things, to “a more or less set practice at the court [until the autumn of 2012] that military commanders were held responsible for war crimes that their subordinates committed during the war in the former Yugoslavia from 1992 to 1995”¹⁶⁶ and wondered whether the military establishment in leading states, such as the US and Israel, felt that the judges were getting too close to the military commanders’ responsibilities, whether, as a result of this, ICTY President Meron was put under pressure by US or Israeli officials to ensure a change of direction and finally, whether Meron himself had exerted pressure on his colleagues in deliberations.¹⁶⁷ Harhoff concluded his e-mail, stating:

The latest judgements here have brought me before a deep professional and moral dilemma, not previously faced. The worst of it is the suspicion that some of my colleagues have been behind a short-sighted political pressure that completely changes the premises of my work in my service to wisdom and the law.

As Harhoff was also on the bench in the Šešelj case, the Defence in that case argued that the 6 June e-mail showed the Judge’s bias in the Šešelj proceedings. As a result, on 9 July 2013, a motion was filed seeking the disqualification of Harhoff from the Šešelj case and on 28 August 2013, Judge Harfhoff was indeed disqualified.¹⁶⁸ The Chamber reasoned:

By referring to a “set practice” of convicting accused persons without reference to an evaluation of the evidence in each individual case, the Majority, Judge Liu dissenting, considers that there are grounds for concluding that a reasonable observer, properly informed, would reasonably apprehend bias on the part of Judge Harhoff in favor of conviction. This includes for the purposes of the present case. This appearance of bias is further compounded by Judge Harhoff’s statement that he is confronted by a professional and moral dilemma, which in the view of the Majority, is a clear reference to his difficulty in applying the current jurisprudence of the Tribunal.¹⁶⁹

On 4 February 2013, the Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR) acquitted and released Justin Mugenzi and Prosper Mugiraneza.¹⁷⁰ Mugenzi was Minister of Trade and Industry and Mugiraneza was Minister of Civil Service in the Interim Government in April 1994,¹⁷¹ when Jean-Baptiste Habyalimana was removed as prefect of the Butare Prefecture and was replaced by Sylvain Nsabimana.¹⁷² On this day, 19 April 1994, Interim President Théodore Sindikubwabo delivered an infamous speech calling for the killing of Tutsis.¹⁷³ In 2011, Trial Chamber II of the ICTR found Mugenzi and Mugiraneza guilty of conspiracy to commit genocide (based on their roles in removing Habyalimana) and guilty of direct and public incitement to commit genocide (based on their roles in the installation of Nsabimana) and sentenced them each to 30 years’ imprisonment.¹⁷⁴ However, the Appeals Chamber reversed these convictions due to errors in the Trial Chamber’s assessment of circumstantial evidence, with Judge Liu dissenting on the reversal with regard to the convictions for conspiracy to commit genocide.¹⁷⁵ For instance, it noted

that the Trial Chamber erred in concluding that the only reasonable inference that could be drawn from the evidence on the record is that Mugenzi and Mugiraneza knew that Sindikubwabo’s speech at the ceremony would be aimed at sparking the killing of Tutsis and that, therefore, their presence at the ceremony demonstrates their shared genocidal intent.¹⁷⁶

On 1 July 2013, The Hague Branch of the Mechanism for International Criminal Tribunals (MICT) was launched,¹⁷⁷ following the Arusha Branch that already commenced on 1 July 2012 (see last year’s Year in Review). The MICT was established in the context of the Completion Strategies of the ad hoc tribunals and is mandated to continue a number of functions from the ICTY and ICTR after they have completed their mandate and to preserve their legacy.

On 17 July 2013, officials of the ICTR/MICT handed over the case file of Bernard Munyagishari, charged with conspiracy to commit genocide, genocide, complicity in genocide and crimes against humanity for murder and rape, to a representative of the Rwandan Prosecutor General’s Office, hereby marking the last of such transfers pursuant to Rule 11bis of the ICTR RPE (‘Referral of the Indictment to another Court’) and concluding an important phase in the ICTR’s Completion Strategy.¹⁷⁸

Finally, on 14 October 2013, MICT President Meron presented the first Annual Report of the MICT¹⁷⁹ to the UN General Assembly.¹⁸⁰ Meron addressed, among other things, the important issue of fugitives. Indeed, almost 20 years after the Rwandan genocide, there are still nine individuals at large initially indicted by the ICTR. Three of them (Augustin Bizimana, Félicien Kabuga and Protais Mpiranya), if arrested, will be tried by the MICT and the cases of the remaining six (Fulgence Kayishema, Charles Sikubwabo, Ladislas Ntaganzwa, Aloys Ndimbati, Charles Ryandikayo and Phénéas Munyarugarama) have been referred to Rwanda.

2013 was an eventful year for the International Criminal Court (ICC, the Court), in no small part due to the various developments in the cases related to the Kenyan situation, and the political and media interest generated by these cases. In February 2013, it became clear that ‘OTP-4’, a key witness for the Prosecution during the confirmation stages of the trial, had received a bribe to withdraw his evidence and in an interview with the Prosecution testified that he had lied while giving testimony prior to the confirmation stage. His evidence had been key in placing Muthaura at a series of organizational meetings related to the post-election violence. Both the Defence teams for Muthaura and Kenyatta argued that the cases had to be returned to the confirmation stage.¹⁸¹ In response, the Prosecution argued that there was still substantial evidence against Kenyatta, but that “the witness whose statement is at issue was essential on the issue of Mr Muthaura’s criminal responsibility and, in fact, was the only direct witness against him”.¹⁸² The Prosecutor conceded that Muthaura presented the “extremely rare case where it is appropriate to contemplate sending the case back to the Pre-Trial Chamber for reconsideration…”¹⁸³ At a status conference on 11 March 2013, Prosecutor Fatou Bensouda announced that her office was dropping all charges against Muthaura, stating that the evidentiary record against him was no longer sufficient to secure a conviction. In the same statement, the Prosecution indicated that the case had presented “serious investigative challenges”, including a “limited pool of potential witnesses…others who are unwilling to testify or provide evidence” and “limited cooperation” from the Government of Kenya.¹⁸⁴ In a press release following the decision, the Prosecutor stressed that this decision applied only to Muthaura and was based only on the specific facts of the Muthaura case, and not on any other considerations.¹⁸⁵ Slightly earlier in March 2013, Uhuru Kenyatta and William Ruto, two of the four defendants in the cases The Prosecutor v. William Samoei Ruto and Joshua Arap Sang and The Prosecutor v. Francis Kirimi Muthaura and Uhuru Muigai Kenyatta were elected President and Vice President of the Republic of Kenya, respectively, a result which was confirmed by Supreme Court of Kenya. Uhuru Kenyatta was inaugurated on 9 April 2013, and so became the second sitting head of state to be indicted by the ICC. A key issue that arose in the cases in the spring and summer months of 2013, was whether the two defendants, Ruto and Kenyatta, who now also had duties as heads of state, must be physically present throughout their trials. On 28 February 2013, the Defence teams for Ruto and Muthaura jointly filed ‘Joint Defence Submissions on Legal Basis for the Accused’s Presence at Trial via Video Link’ (‘Video Link Application’), requesting the Chamber to authorize the use of video link technology.¹⁸⁶ On 17 April 2013, Ruto requested to waive his right to be present during the trial. In the alternative he requested to participate via video link.¹⁸⁷ In an 18 June 2013 decision, Trial Chamber V (a) decided by majority, with Judge Olga Herrera Carbuccia dissenting, to grant the request conditionally, and excused Ruto from continuous presence at trial, except during opening and closing statements, statements from victims and if applicable, sentencing hearings, victim impact hearings, reparation hearings and “any other attendance directed by the Chamber”.¹⁸⁸ However, on 25 October 2013, the Appeals Chamber unanimously reversed this decision, finding that the Trial Chamber had interpreted the scope of its discretion to excuse attendance too broadly, and that absence should be exceptional and decided on a case-by-case basis.¹⁸⁹ In the Kenyatta case, on 23 September 2013, Defence counsel filed a request that Kenyatta be conditionally excused from continuous presence at trial. On 18 October 2013 Trial Chamber V (b) conditionally granted the Defence request, “in order to permit him to discharge his functions of state as the executive President of Kenya; while his trial proceeds, as it must do, in this Court”.¹⁹⁰ Similar to the Trial Chamber V (a) decision in the Ruto/Sang case, it was decided that Kenyatta must be present during opening and closing statements, during victim statements, during the delivery of judgment in the case and, if applicable, during sentencing, victim impact and reparation hearings.¹⁹¹ On 28 October 2013, the Prosecutor asked Trial Chamber V (b) to reconsider its decision, or grant leave to appeal, in light of the recent Appeals Chamber decision reversing a similar decision in the Ruto/Sang case. On 26 November 2013, Trial Chamber V (b) reviewed its decision from a month prior, and in light of the “legal clarifications provided by the Appeals chamber in its recent judgment on the manner”, held by majority that as a general rule, Kenyatta must be present at trial and that any future requests to be excused from attending parts of the trial would be considered on a case-by-case basis.¹⁹² A further issue to be resolved prior to the opening of trial in both cases was the issue of where the trial should take place. On 24 January 2013, the Defence in the Ruto/Sang case, applied for a change of place where the Court shall sit for trial. Arguing that a similar request had been made and considered in 2012 in the Kenyatta case, and that “the two cases are inextricably linked in terms of their listing and it would be impractical to have the two trials heard in different places as far apart as The Hague and East Africa”, the Defence requested that the venue be changed from The Hague to either Kenya or Tanzania, and that this change would be “in the respective interests of all the parties concerned”.¹⁹³ On 3 June 2013, Trial Chamber V (a), after having obtained observations from the parties and participants in the Ruto/Sang case, as well as from the Government of Kenya and the Registrar of the ICTR, issued a recommendation to the Presidency that “it may be desirable to hold the commencement of trial and other portions thereof, to be determined at a later stage, in Kenya or, alternatively, in Tanzania”, citing the potential benefits of holding the trial close to the locality where the alleged crimes were committed and as a means of bringing justice closer to the victims.¹⁹⁴ In a 15 July 2013 decision, issued after a discussion and a vote on the matter under Rule 100 of the ICC’s Rules of Procedure and Evidence, which requires that all 18 ICC judges vote on a proposal to move the venue of the Court from The Hague, the ICC judges decided that the trials will be held in The Hague. They did not reach the required two-thirds majority necessary for a decision to change the location of the hearing. They stated that while in principle in favor of bringing ICC proceedings closer to the affected communities, they had reached their conclusion taking into account security, the cost of holding proceedings outside The Hague, the potential impact on victims and witnesses, the length of the proceedings, the potential impact on the perception of the Court and the impact on its ability to conduct and support other proceedings that are taking place simultaneously at the Court.¹⁹⁵ In a further development, prior to the start of trial in the Ruto/Sang case, the Prosecution on 22 July 2013 requested permission to amend the charges against Ruto and Sang by broadening the scope in relation to the crimes allegedly committed in the greater Eldoret area on 30 and 31 December 2007, but on 16 August 2013, Pre-Trial Chamber II rejected this request, deciding that it would unduly compromise the rights of the accused.¹⁹⁶ The Ruto/Sang trial opened on 10 September 2013, but was adjourned shortly after to allow Vice-President Ruto to deal with the Westgate mall attack in Kenya at the end of September. The start of the Kenyatta trial was postponed until early 2014, but on 19 December 2013, Prosecutor Fatou Bensouda communicated to Trial Chamber V (b) that witness P-0012 had admitted to providing false evidence regarding “the event at the heart of the case against the accused” and that they no longer intended to call P-0012 as a witness. Separately, P-0011, another Prosecution witness, had informed the Office of the Prosecution (OTP) that he was no longer willing to testify at trial. With the loss of these two witnesses, the Prosecution considered that it no longer had sufficient evidence to proceed to trial and requested a 3-month adjournment of the 5 February 2014 trial date in order to pursue additional investigative steps.¹⁹⁷ In November 2013, the AU and Kenya attempted to secure a deferral of the Kenyan cases under the Security Council’s powers as per Article 16 of the Rome Statute, but the draft resolution failed to secure the requisite nine votes in favor to pass.¹⁹⁸

In other situations, on 16 January 2013, the OTP finalized the preliminary examination of the Situation in Mali, and having identified cases of sufficient gravity to warrant further action, the Prosecutor announced that her office would open an investigation into alleged crimes committed in Mali since January 2012. The Malian State referred the situation to the ICC in July 2012.¹⁹⁹

On 14 May 2013, the Union of the Comoros referred the situation “with respect to the 31 May 2010 Israeli raid on the Humanitarian Aid Flotilla bound for Gaza Strip.” As per Article 12(2)a of the Rome Statute, the ICC can exercise its jurisdiction over crimes committed on a vessel if the State of registration is a State Party to the Rome Statute.²⁰⁰

Early 2013 also began with the confirmation of charges hearing in the case against Laurent Gbagbo, the former President of Côte d’Ivoire. The hearing began on 19 February 2013 and ended a week later on 28 February 2013. The purpose of the confirmation of charges hearing in the Rome Statute framework is to establish whether there is enough evidence to establish substantial grounds to believe that the person committed the crimes charged. Three months later, in early June 2013, Pre-Trial I adjourned the confirmation of charges and requested that the Prosecutor consider providing further evidence or conducting a further investigation. The judges, with Judge Sylvia Fernández de Gurmendi dissenting,²⁰¹ found the evidence presented by the Prosecution insufficient, but they did not decline to confirm the charges against Laurent Gbagbo, because they found that there was some relevance and probative value to the evidence presented. Rather than declining to confirm the charges, they chose not to make a final determination, and provided the Prosecutor with the opportunity to provide further evidence by November 2013, providing the Prosecutor with an additional 6-month window. In the majority decision, the judges were critical of the Prosecutor’s reliance on anonymous hearsay, as often contained in reports of nongovernmental organizations (NGOs) and press articles, with regard to key elements of the case.

“Such pieces of evidence cannot in any way be presented as the fruits of a full and proper investigation by the Prosecutor…Even though NGO reports and press articles may be a useful introduction to the historical context of a conflict situation, they do not usually constitute a valid substitute for the type of evidence that is required to meet the evidentiary threshold for the confirmation of charges”.²⁰²

In the timeline set out by the judges, it was envisioned that all parties would make written submissions in response to the additional evidence set out by the Prosecution, and that the Chamber would issue a decision on the confirmation of charges by April 2014.²⁰³ However, in August 2013, the OTP appealed the 3 June 2013 decision to adjourn the confirmation of charges hearing and on 16 December 2013, the Appeals Chamber issued a decision upholding the Pre-Trial Chamber decision²⁰⁴ and on 17 December 2013 set out a new calendar requiring the Prosecutor to submit to the Defence all evidence on which she intends to rely by 13 January 2014, with further proceedings extending into 2014. A second key development in the case against Laurent Gbagbo in 2013 was the ruling on an admissibility challenge, which was brought by Gbagbo’s Defence on 15 February 2013. In the challenge, it was advanced that Laurent Gbagbo had in August 2011 been charged with and was being prosecuted for economic crimes allegedly committed during the post-electoral crisis in Côte d’Ivoire, and that these proceedings must be presumed to be ongoing on the national level. It was further advanced that the national proceedings against Gbagbo constitute the same case as the ICC case, because it related to the same context, the same general conduct and “the alleged will of Mr. Gbagbo to implement a policy to remain in power”.²⁰⁵ The admissibility challenge argued that there were numerous national prosecutions ongoing in relation to the post-electoral crisis and that these proceedings should indicate that Ivorian authorities were willing and able to carry out proceedings. In response, the Prosecution argued that even if national proceedings had been started, they had been suspended since Gbagbo’s transfer to The Hague in November 2011. The OTP concluded that the Ivorian authorities had demonstrated a willingness to prosecute crimes on a national level, but that in transferring Gbagbo to The Hague, they had relinquished jurisdiction to the ICC. In addition, it advanced that the notion of ‘substantially the same conduct’ was too broad, and that the threshold should be whether “at a minimum, the national authorities are focused on the same course of conduct and series of events as the ICC, meaning that they are examining the person’s criminal responsibility in the context of substantially the same incidents and underlying facts and allegations of criminal responsibility”.²⁰⁶ It was argued that the economic crimes with which Gbagbo may have been charged on a national level related to criminal conduct in obtaining the funds, but not the subsequent alleged use of those funds to contribute to the crimes against humanity which formed the basis of the ICC case.²⁰⁷ Cote d’Ivoire had also requested authorisation to submit observations on the admissibility challenge, which was granted on 14 March 2013. In observations submitted on 28 March 2013, Cote d’Ivoire maintained that the case against Gbagbo was admissible because there were no “relevant proceedings against him at the national level” and that national authorities had in fact refrained from initiating proceedings against Gbagbo for violent crimes in view of the ICC proceedings.²⁰⁸ On 11 June 2013, Pre-Trial Chamber I issued its decision rejecting the challenge and deciding that the case is still admissible before the ICC because there was no tangible proof that steps had been taken to prosecute Gbagbo nationally and that it had not been demonstrated that he was being tried for the same case or any other.²⁰⁹

In further developments related to the Cote d’Ivoire situation, on 30 September 2013, the judges of Pre-Trial Chamber I unsealed a warrant of arrest against Charles Blé Goudé, which was initially issued on 21 December 2011. This warrant was the third warrant of arrest issued in the situation in Cote d’Ivoire. The judges found that there are reasonable grounds to believe that, in the aftermath of the 2010 presidential elections in Cote d’Ivoire, pro-Gbagbo forces attacked the civilian population, systematically targeting civilians who were believed to support the opposing candidate. Charles Blé Goudé, an Ivorian national in his forties, allegedly belonged to Gbagbo’s inner circle, and allegedly exercised joint control over the crimes and as the former leader of the Young Patriots, the youth wing of the pro-Gbagbo movement, made an essential contribution to the common plan to commit the crimes. As per the warrant, he allegedly bears individual criminal responsibility, as indirect co-perpetrator, for four counts of crimes against humanity, namely murder, rape and other forms of sexual violence, persecution, and other inhumane acts, allegedly committed in the territory of Côte d’Ivoire between 16 December 2010 and 12 April 2011.²¹⁰

Also on 30 September 2013, Côte d’Ivoire challenged the ICC case against Simone Gbagbo and requested a suspension of the arrest warrant against her and obligation to transfer, arguing that it is willing and able to try the former first lady before a national court.

On 18 March 2013, in an unprecedented occurrence, General Bosco Ntaganda, a suspect in the Democratic Republic of the Congo (DRC) situation, surrendered himself to the US embassy in Kigali, Rwanda and requested transfer to the ICC.²¹¹ Bosco Ntaganda had been wanted since 2006 on charges of enlisting and conscripting child soldiers and using them to participate actively in hostilities in the DRC from July 2002 to December 2003. In 2012, Pre-Trial Chamber II issued a second arrest warrant containing additional charges for war crimes and crimes against humanity, stemming from evidence presented during the trial of Thomas Lubanga Dyilo, Bosco Ntaganda’s superior. Working in cooperation, Rwandese, American and Dutch authorities facilitated Ntaganda’s transfer to The Hague within a week of his surrender. Ntaganda was in ICC custody on 22 March 2014, and he first appeared before ICC judges on 26 March 2014. During this initial appearance, the judges confirmed the identity of Bosco Ntaganda and read out the charges against him, which he immediately denied, prompting Judge Ekaterina Trendafilova to explain to him that he did not need to enter a plea of guilty or innocent at this initial hearing.²¹² The confirmation of charges hearing was set for September 2013 but was postponed until early 2014 after the Prosecution requested additional time to prepare for trial.²¹³

In another case in the DRC situation, The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Trial Chamber II had in late 2012 informed the parties that it was proposing a re-characterisation of facts relating to Germain Katanga’s mode of liability from commission of a crime in the form of indirect co-perpetration (25(3)(a) of the Rome Statute), to complicity in the commission of a crime by a group of persons acting with a common purpose. This decision did not concern Mathieu Ngudjolo and effectively severed the charges and the cases against the two accused.²¹⁴ Mathieu Ngudjolo was acquitted of all charges against him at the end of 2012 and was released from ICC custody, but was detained by Dutch police shortly thereafter. Ngudjolo requested asylum to avoid repatriation to the DRC and was held in an alien retention center while his application was being processed.²¹⁵ On 3 May 2013, the District Court of The Hague ordered the release of Ngudjolo from the detention center at Schiphol Airport in the Netherlands on the basis that there cannot be continuous alien retention during an ongoing asylum procedure. Ngudjolo’s former co-defendant Germain Katanga’s Defence team appealed the decision to re-characterize the charges on 10 January 2013, arguing that the decision was “unlawful and inappropriate”.²¹⁶ On 27 March 2013, the Appeals Chamber dismissed this appeal by majority, confirming the Trial Chamber decision to re-characterize the charges. The Appeals Chamber found that the timing of the Trial Chamber II decision, taken at the deliberation stage, and the scope of the proposed change to the mode of liability, were in conformity with the Regulations of the Court. The Chamber also found that the decision did not violate Katanga’s right to a fair trial but did emphasize that the Trial Chamber must continue to be vigilant in protecting Katanga’s rights—particularly, considering the advanced stage of proceedings, his right to be tried without undue delay.²¹⁷ On 19 November 2013, Trial Chamber II scheduled a hearing to deliver the judgment in the case The Prosecutor v. Germain Katanga on Friday 7 February 2014.²¹⁸

Finally, also in relation to the DRC situation and the case The Prosecutor v. Jean-Pierre Bemba Gombo in particular, Judge Cuno Tarfusser issued a warrant of arrest for Jean-Pierre Bemba Gombo, his lead counsel Aimé Kilolo Musamba, his case manager Jean-Jacques Mangenda Kabongo and Fidèle Babala Wandu (a member of the DRC Parliament and Deputy Secretary General of the Mouvement pour la Libération du Congo) and Narcisse Arido (a Defence witness) for offenses against the administration of justice allegedly committed in connection with the case of The Prosecutor v Jean-Pierre Bemba Gombo. A few days later, on 23 and 24 November 2013, Aimé Kilolo Musamba was arrested by Belgian authorities, Jean-Jacques Mangenda Kabongo was arrested by Dutch authorities, Narcisse Arido was arrested by the French authorities and the authorities of the DRC arrested Fidèle Babala Wandu. Aimé Kilolo Musamba and Fidèle Babala Wandu were transferred to the ICC Detention center in Scheveningen on 25 November 2013, while Jean-Jacques Mangenda Kabongo and Narcisse Arido were to be transferred to Scheveningen after the completion of national proceedings in France and the Netherlands, respectively. Jean Pierre-Bemba Gombo was already in the custody of the ICC. On 27 November 2013, Aimé Kilolo Musamba, Fidèle Babala Wandu and Jean-Pierre Bemba Gombo made their first appearance before the single Judge of Pre-Trial Chamber II, Judge Cuno Tarfusser, who verified the identity of the suspects, ensured they had been informed of the charges against them, and set a calendar for proceedings leading to the confirmation of charges.

In relation to the Sudan (Darfur) situation, on 6 March 2013, Trial Chamber IV decided that the trial in the case The Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus was to begin on 5 May 2014, taking into account the necessary preparations needed to prevent interruption to the trial.²¹⁹ On 4 October 2013, Trial Chamber IV terminated the proceedings against Saleh Mohammed Jerbo Jamus, a former leader of the JEM rebel group who was to be tried for an attack on AU peacekeepers in 2007. Though there was no official death certificate, the judges decided that the evidence suggested that Jerbo was killed in North Darfur in April 2013.²²⁰ President Omar Al-Bashir—wanted by the ICC for war crimes, crimes against humanity and genocide since 2009—remained at large, travelling to various countries and States Parties without arrest. For instance, in mid-July 2013, Al-Bashir travelled to Nigeria, prompting the President of the Assembly of States Parties to call upon Nigeria to respect its obligations under the Rome Statute, and causing Pre-Trial Chamber II to issue a request to Nigeria to immediately arrest Al-Bashir.²²¹ On 18 September 2013, ICC judges, informed of Omar Al-Bashir’s potential travel to the United States, invited the United States to arrest the President Al-Bashir and transfer him to the ICC.²²²

In the Libya situation, on 6 February 2013 Pre-Trial Chamber I decided that Libya remained under an obligation to surrender Abdullah Al-Senussi to the Court. The obligation to surrender Saif Al Islam Gaddafi had been postponed pending a decision on Libya’s May 2012 challenge to the ICC jurisdiction over the case.²²³ On 2 April 2013, Libya filed an admissibility challenge against the ICC case against Abdullah Al-Senussi, citing ongoing domestic investigations into alleged crimes committed by him in Libya.²²⁴ In relation to the previous admissibility challenge by Libya against the ICC case against Saif Al Islam Gaddafi, on 31 May 2013, ICC Pre-Trial Chamber I rejected the challenge and ordered his surrender to the Court. The Chamber concluded that Libya’s domestic investigation did not sufficiently cover the alleged crimes (‘same conduct’) as the ICC case. Though the judges acknowledged Libya’s efforts to restore the rule of law domestically, they stressed that Libya continues to face difficulties in exercising judicial powers, citing the inability to secure Gaddafi into state custody as an example.²²⁵ Libyan authorities appealed this decision on 7 June 2013 and requested a suspension of the surrender order of Saif Gaddafi to the court while a final decision on the admissibility challenge was pending. On 18 July 2013, the ICC Appeals Chamber rejected this request and on 23 July 2013, Gaddafi’s (court-appointed) Defence requested that the Pre-Trial Chamber find that Libya has failed to cooperate with Court orders by deliberating to surrender Saif Al Islam Gaddafi to the Court and refer the matter to the UN Security Council. ²²⁶

On 11 October 2013, ICC Pre-Trial Chamber I decided that the case against former Libyan head of intelligence Abdullah Al-Senussi was inadmissible before the ICC and that it was to proceed in Libya on the basis that Libyan authorities were both willing and able to effectively prosecute him. This decision marked the first time that ICC judges ruled in favour of a government challenge to ICC jurisdiction.²²⁷ Abdullah Al-Senussi’s Defence team appealed the decision on 17 October 2013 and requested that the decision be suspended pending a final ruling.²²⁸

With regards to ratifications and other institutional developments within the Court, in early 2013, on 15 January, Luxembourg became the fourth state party to ratify the amendments on the crime of aggression that were adopted at the 2010 Review Conference of the Court in Kampala, Uganda.²²⁹ In later months, Estonia, Botswana and Germany followed suit, with ratifications on 28 March 2013 and 6 June, becoming the fifth, sixth and seventh state parties, respectively.²³⁰ Towards the end of the year, on 1 October and 29 November, Andorra, Cyprus, Slovenia, Uruguay and Belgium ratified the amendments, with Belgium becoming the twelfth state party to ratify the amendments on the crime of aggression.²³¹ The Court may exercise jurisdiction over the crime of aggression when thirty states parties have ratified the amendments, and subject to a decision to be taken after 1 January 2017 by the States Parties. In other ratifications, on 18 March 2013, Cote d’Ivoire became the 122nd State Party to the Rome Statute, after having previously accepted the jurisdiction of the Court in 2003 and again in 2010.²³² In further institutional developments, the new Deputy Prosecutor James Stewart (Canada) was sworn in on 8 March 2013.²³³ He was elected for a period of 9 years by the Assembly of States Parties on 16 November 2012 and will report directly to the Prosecutor Fatou Bensouda.

In November 2013, the 12th Assembly of States Parties (ASP) to the Rome Statute of the ICC took place in The Hague, the Netherlands. Reflecting on the Assembly in a talk at the Asser Institute on 12 December, Ambassador Tiina Intelmann stated that this ASP “has probably been the most political one—or at least addressing the most politically sensitive issues—ever”. Several issues were addressed during this ASP, from the Court’s 2014 budget, the Independent Oversight Mechanism, victims participation and (non-) cooperation and the tension between African states parties/the African Union and the Court. Crucially, the ASP began weeks after the AU and the Kenyan government failed to secure an Article 16 deferral of the Kenyan cases at the Security Council. At the request of the African Union, a special session featuring a panel discussion was scheduled to debate the issue of head of state immunity, and discussions on amendments to the ICC Rules of Procedure and Evidence governing presence at trial featured heavily.²³⁴

As addressed in last year’s Year in Review, on 24 November 2012, EULEX arrested well-known Kosovo politician Fatmir Limaj and other suspects for a re-trial in a case of alleged war crimes against Serbian prisoners of war and (Kosovo) Albanian civilians in or near Klecka (Kosovo) in 1999. On 18 April 2013, the re-trial began, with all ten defendants pleading not guilty.²³⁵ On 17 September 2013, Limaj was again, for the third time, acquitted.²³⁶ The EULEX judges opined that although the Prosecution’s chief witness Zogaj, who committed suicide in 2011 (See again last year’s Year in Review), could not testify, his information was unreliable and moreover, there was no independent evidence showing that Limaj committed the crimes of which he was accused.

In May 2013, another close ally of Kosovo Prime Minister Hashim Thaci, Sami Lushtaku, the mayor of Skenderaj, and four others, were arrested by EULEX and the Kosovo Police Special Operations Unit ROSU on suspicion of war crimes in the 1998–1999 war.²³⁷ The men were charged with “war crimes against the civilian population in the form of violation of bodily integrity and health of civilians held in a KLA detention centre […] also for […] the killing of one civilian”.²³⁸

And finally, on 8 November 2013, a EULEX prosecutor indicted 15 more defendants in the Mitrovica Basic Court, charging them with war crimes against civilians, including torture, mistreatment of prisoners and murder, that occurred at a KLA detention center in Likovac in 1998.²³⁹

In 2013, considerable attention was paid at the Extraordinary Chambers in the Courts of Cambodia (ECCC) to the severance of Case 002, the case against Chea Nuon, former Chairman of the Democratic Kampuchea National Assembly and Deputy Secretary of the Communist Party of Kampuchea and Samphan Khieu, former Head of State of Democratic Kampuchea. Initially, Sary Ieng and his wife Thirith Ieng were also part of this case, but Thirith was declared unfit to stand trial and was released from provisional detention on 16 September 2012 (See last year’s Year in Review) and Sary passed away on 14 March 2013.²⁴⁰ On 8 February 2013, the Supreme Court Chamber of the ECCC annulled the 8 October 2012 Trial Chamber decision in which the latter denied, in part, to expand the scope of the first trial of Case 002 (Case 002/01).²⁴¹ The 8 February 2013 decision “was widely discussed in the media by the public and by NGOs. The views were varied and included reference to the health of the accused, the complexity of the trial as well as calls for the inclusion of additional factual allegations such as genocide, work sites, other execution sites beyond S-21 or forced marriages”.²⁴² The Supreme Court Chamber noted that the original severance order of 22 September 2011 and later decisions on which the 2012 decision was based lacked clarity and reasoning and that the parties had not been given sufficient opportunity to be heard.²⁴³ Nevertheless, this did not mean that the Trial Chamber could not reassess a mode of severance after inviting submissions from the parties and taking into account all relevant factors.²⁴⁴ This is what happened; in February and March 2013, the Trial Chamber heard submissions from the parties and on 29 March 2013, it announced that Chea Nuon is fit to stand that trial, that Case 002 will be severed and that Case 002/01 will deal with the forced evacuation of Phnom Penh in April 1975, the second phase of forced population movement initiated from September 1975, and the execution of Lon Nol soldiers at the Tuol Po Chrey execution site in Pursat province.²⁴⁵ A reasoned decision on this severance was issued on 26 April 2013,²⁴⁶ and it was explained that “[t]he uncertainty of stable funding, the fragile health of NUON Chea and the advancing age of KHIEU Samphan, all influenced the decision not to hold a lengthy trial or to hear all the facts”.²⁴⁷ The notorious S-21 prison, for instance, was also not included in the scope of the case. Both the Co-Prosecutors (on 15 May) and Chea Nuon (on 27 May) filed appeals. The Co-Prosecutors argued that the case should include S-21 and Chea Nuon submitted

that the Trial Chamber erred in deciding to sever Case 002 anew, and in failing to include charges relating to genocide and cooperatives and worksites in Case 002/001. He accordingly request[ed] the Supreme Court Chamber to annul the Impugned Decision with prejudice to future severance order, or, in the alternative, to expand of the scope of Case 002/01 such that it includes charges of genocide and those concerning crimes allegedly committed at cooperatives and working sites [original footnotes omitted].²⁴⁸

Finally, on 23 July 2013, the Supreme Court Chamber dismissed these appeals. It denied Nuon’s request to annul the severance order as the Trial Chamber’s discretion to sever a case is broad and as the Trial Chamber’s determination that renewed severance was required is not so unreasonable.²⁴⁹ However, it also considered that the Trial Chamber had failed to comply with the Supreme Court Chamber’s instructions “that renewed severance must entail a tangible plan for the adjudication of the entirety of the charges in the Indictment and due consideration to reasonable representativeness of the Indictment within the smaller trials [original footnotes omitted]”.²⁵⁰ This constituted an error of law and an error in the exercise of the Trial Chamber’s discretion.²⁵¹ Nevertheless, the judges held:

the Supreme Court Chamber considers that to order an expansion of Case 002/01 and to require the Trial Chamber to reconfigure its schedule would inevitably result in unnecessary delays. In the present circumstances, concerns of the effective management of the entirety of charges pending before the Trial Chamber prevail over the postulate that Case 002/01 be reasonably representative of the Indictment. The Supreme Court therefore considers that a more appropriate course of action at this state is to instruct that charges that should have been included within the scope of Case 002/01 will instead form part of the scope of Case 002/02 [meaning that Case 002/02 will at least comprise the charges related to S-21, a worksite, a cooperative and genocide], so as to render the combination of Cases 002/01 and 002/02 reasonably representative of the Indictment.²⁵²

Because of this, the appeals of both the Co-Prosecutors and Nuon to include additional charges in the scope of Case 002/01 were dismissed²⁵³ and the Supreme Court Chamber decided that it was “imperative to establish a second panel within the Trial Chamber in order to ensure that Case 002/02 can commence as soon as possible after closing submissions in Case 002/01”²⁵⁴ and thus instructed the ECCC’s Office of the Administration “to immediately explore the establishment of a second panel of national and international judges within the Trial Chamber to hear and adjudicate Case 002/02”.²⁵⁵

After found guilty of aiding, abetting and planning the commission of certain crimes (on 26 April 2012) and sentenced to 50 years’ imprisonment (on 30 May 2012) by Trial Chamber II of the Special Court for Sierra Leone (SCSL) (see last year’s Year in Review), former Liberian resident Charles Taylor filed his appeal brief against both the Judgment and the Sentencing Judgment on 1 October 2012.²⁵⁶ The Prosecution did the same.²⁵⁷ The Defence brought forward the following six challenges. First, it challenged the Trial Chamber’s assessment of the evidence and its finding of fact in several ground of appeal.²⁵⁸ Second, it argued “that the Trial Chamber erred in law and in fact in finding that the RUF/AFRC had an operational strategy to commit crimes against the civilian population of Sierra Leone throughout the Indictment Period [original footnote omitted]”.²⁵⁹ Third, the Defence challenged the judges’ findings on the elements of aiding and abetting and planning liability in a number of grounds.²⁶⁰ Fourth, it challenged the conclusion that Taylor’s actus reus and mens rea establish his criminal responsibility for aiding, abetting and planning the commission of the alleged crimes.²⁶¹ Fifth, the Defence asserted that irregularities in the judicial process occurred which constituted violations of Taylor’s right to a fair and public trial.²⁶² And finally, the Defence argued that the judges erred in entering cumulative convictions and challenged the sentence.²⁶³ The Prosecution made four complaints, the first two being that the judges failed to find that Taylor had also ordered and instigated the commission of crimes.²⁶⁴ Third, it asserted that the judges erred in finding that the location of some crimes were not pleaded in the indictment and finally, it complained about the inadequacy of the sentence, arguing that Taylor should have received 80 years.²⁶⁵ Almost all of these arguments were rejected by the Appeals Chamber in its judgment of 26 September 2013. For instance, as to the point of the Prosecution that Taylor had also ordered and instigated the commission of crimes, the judges of the Appeals Chamber noted:

[A]iding and abetting liability fully captures Taylor’s numerous “interventions” over a sustained period of 5 years, the variety of assistance he provided to the RUF/AFRC leadership in the implementation of its Operational Strategy and the cumulative impact of his culpable acts and conduct on the “tremendous suffering caused by the commission of the crimes” for which he is guilty. Planning liability likewise fully captures Taylor’s additional culpable acts and conduct for the crimes committed during the Freetown Invasion. These descriptions of Taylor’s culpable acts and conduct fully reflect the Trial Chamber’s findings on Taylor’s authority and leadership role [original footnotes omitted].²⁶⁶

However, it also allowed, in part, one ground of the Defence and revised “the Trial Chamber’s Disposition for planning liability under Article 6(1) of the Statute by deleting Kono District under Counts 1–8 and 11”.²⁶⁷ Likewise, it allowed, in part, one ground of the Prosecution and held “that the Trial Chamber erred in law in finding that aiding and abetting liability generally warrants a lesser sentence than other forms of criminal participation”.²⁶⁸ As a result of this, the sentence of 50 years’ imprisonment was confirmed. This cleared the way for Taylor’s transfer to the UK, on 15 October 2013, where he will serve the remainder of his 50-year sentence.²⁶⁹

With the finalization of the Taylor case, the SCSL could start its process of dissolution. On 2 December 2013, and after 11 years of existence, the SCSL was formally closed.²⁷⁰ During the official closing ceremony in Freetown, Miguel de Serpa Soares, Under-Secretary-General for Legal Affairs and United Nations Legal Counsel, representing the Secretary-General of the United Nations, remarked that “[t]he Special Court is the first of the United Nations and United Nations-assisted tribunals to complete its mandate and to fully hand over its rights and responsibilities to its successor residual institution”.²⁷¹ This is the Residual Special Court for Sierra Leone, which was established by an agreement between the United Nations and the Government of Sierra Leone “to oversee the continuing legal obligations of the Special Court for Sierra Leone after its closure in 2013. These include witness protection, supervision of prison sentences, and management of the SCSL archives”.²⁷² On 31 December 2013, the website of this Residual Special Court for Sierra Leone (www.rscsl.org), containing electronic records of the SCSL, was launched.

On 22 January 2013, the STL “denounce[d] in the strongest possible terms any attempts at witness intimidation”, in view of Lebanese media reports claiming to reveal the identities of individuals who could testify before the STL as witnesses.²⁷³ It therefore came as no surprise that the STL condemned, again “in the strongest possible terms”,²⁷⁴ the fact that in early April, the hacker group “Journalists for the Truth” broke into the website of the newspaper Al Mustaqbal, posting a list of 167 alleged witnesses and directing visitors to its own website.²⁷⁵ The STL noted that “[t]hose behind the website purporting to unveil the “truth”, are in grave breach of journalistic ethics and employ questionable methods such as Internet hacking”²⁷⁶ and warned that “[a]ny attempt to knowingly and willfully interfere with the judicial process, including disclosure of confidential material or threatening, intimidating, or otherwise interfering with potential witnesses, is taken very seriously by the four organs of the Tribunal”.²⁷⁷ On 29 April, Judge Baragwanath, acting as the Contempt Judge for the month of April, announced that an amicus curiae would be appointed by the Registrar to investigate “three incidents which could potentially be considered interference with the administration of justice through publication of alleged witness identities”.²⁷⁸

As to the second development, on 10 October 2013, Pre-Trial Judge Daniel Fransen ordered the lifting of the confidentiality of the indictment against Hassan Habib Merhi, subject to certain redactions.²⁷⁹ This indictment, submitted for confirmation on 5 June 2013 by the Prosecution and confirmed by the Pre-Trial Judge on 31 July 2013, charges Merhi with five counts for his involvement in the 14 February 2005 terrorist attack in Beirut, which killed Lebanese former Prime Minister Rafik Hariri and 21 other persons, and injured 226 persons.²⁸⁰ The same day, it was decided to initiate a 30-day public advertisement phase to locate and inform Merhi of his charges and rights.²⁸¹ This was without any result. Consequently, on 20 December 2013, the Trial Chamber decided to hold the Merhi trial in absentia, after it found that Mehri had absconded or otherwise could not be found and that all reasonable steps had been taken to secure his appearance before the STL and to inform him of the charges by the Pre-Trial Judge.²⁸²

Finally, 2013 was characterized by the preparations for the start of the actual trial in the case Ayyash et al. Although initially provisionally scheduled to begin on 25 March 2013, Pre-Trial Judge Daniel Fransen postponed, on 21 February 2013, the start of the trial, among other things because “[h]e found that the Prosecution ha[d] not yet disclosed the entirety of the material to the Defence, and that the Defence ha[d] not yet been able to access certain material disclosed by the Prosecution due to technical issues.²⁸³ On 28 October 2013, the Ayyash case file was transferred to the Trial Chamber,²⁸⁴ and on 10 December, the judges of the Trial Chamber scheduled the start of the trial for 16 January 2014.²⁸⁵

In Dhaka, Bangladesh, the International Crimes Tribunal (ICT) continued its work investigating and prosecuting suspects of international crimes committed during the 1971 Bangladesh Liberation War. The oft-criticized²⁸⁷ ICT is trying persons who allegedly collaborated with Pakistani forces who tried to prevent Bangladesh (then East Pakistan) from becoming an independent state. Many suspects are linked to the opposition party Jamaat-e-Islami (JI), which opposed the independence of Bangladesh from Pakistan.

Whereas in 2012, the first indictments were issued and trials commenced (see last year’s Year in Review), 2013 was characterized by many convictions and (heavy) sentences. The first verdict by the ICT was handed down on 21 January 2013, when Abul Kalam Azad, also known as “Bachchu Razakar”, was sentenced to death in absentia (he was said to have fled to Pakistan), after the ICT found him guilty of genocide and crimes against humanity.²⁸⁸ On 5 February 2013, the second verdict was issued, this time against JI assistant secretary-general Abdul Quader Mollah, also known as the ‘Butcher of Mirpur’. He was tried for, among other things, the killing of hundreds of unarmed civilians (crimes against humanity),²⁸⁹ and received life in prison, which, given the serious charges, led to “the biggest mass demonstration the country ha[d] seen in 20 years”.²⁹⁰ As a result of these protests, which demanded the death penalty for Mollah, the Bangladesh Parliament amended the 1973 Act regulating the ICT, enabling the state to appeal a life sentence and seek the death penalty.²⁹¹ On 17 September 2013, the Supreme Court of Bangladesh indeed reversed the verdict of the ICT, sentencing Mollah to death,²⁹² and on 12 December 2013, Mollah was hanged, making him the first person convicted by the ICT to be executed.²⁹³ Obviously, not only the death penalty as such, but also the retroactive application of the law was heavily criticized, as being incompatible with international principles of fair trial.²⁹⁴

Other severe verdicts were issued in 2013, against JI leader Delwar Hossain Sayedee (sentenced to death on 28 February 2013 for crimes against humanity),²⁹⁵ against former JI leader Gholam Azam (about whom the judges stated that he deserved the death penalty, but given his age (91) and illness, was ‘merely’ sentenced, on 15 July 2013, to 90 years’ imprisonment for, among other things, crimes against humanity),²⁹⁶ against JI secretary-general Ali Ahsan Mohammed Mujahid (sentenced to death on 17 July 2013 for crimes against humanity),²⁹⁷ against MP for the Bangladesh Nationalist Party (BNP) Salauddin Quader Chowdhury (sentenced to death on 1 October 2013 for crimes against humanity and genocide),²⁹⁸ against BNP leader Abdul Alim (sentenced to life imprisonment (taking into account his age and illness), on 9 October 2013, for genocide and crimes against humanity),²⁹⁹ and against JI members Chowdhury Mueen Uddin and Ashrafuzzaman Khan (sentenced on 3 November 2013 to death, in absentia, for crimes against humanity).³⁰⁰

Like in 2012, the War Crimes Section of the Court of Bosnia and Herzegovina (BiH) was very active in 2013, issuing many decisions. However, only a small selection of developments can be highlighted here.

On 11 January 2013, Trial Panel of Section I for War Crimes of the Court of BiH, found Božidar Kuvelja guilty, in first instance, of crimes against humanity for his role in the 1995 Srebrenica massacre and sentenced him to 20 years’ imprisonment.³⁰¹ Kuvelja, a former Bosnian Serb police officer, was found to have searched for Bosnian Muslims, and

[a]fter seizing the victims from their homes, Kuvjela [sic] assisted members of his police unit in their transport to a warehouse collection point known as ‘the White House’ where they were detained and subjected to physical abuse. The following day, Kuvjela [sic] then helped to separate the victims by sex, whereupon he and the others began the systematic execution of more than a thousand Muslim men and boys.³⁰²

This sentence was confirmed in appeal on 16 September 2013.³⁰³

On 29 March 2013, the same trial panel found the Montenegrin Veselin Vlahović guilty, in first instance, of crimes against humanity (persecution), and sentenced him to 45 years’ imprisonment, the most stringent sentence the Court of BiH has ever imposed.³⁰⁴ According to the judges, Vlahović, as member of the paramilitary forces of the Republika Srpska, persecuted in 1992 the civilian non-Serb population of a Sarajevo suburb, by killing 31 people, raping countless Bosniak and Croat women and torturing and robbing non-Serbs.³⁰⁵

Then, in the summer of 2013, the Court of BiH suffered a serious set-back when the European Court of Human Rights determined, on 18 July 2013, that the proceedings against Abduladhim Maktouf, who had earlier been convicted of war crimes and sentenced to 5 years’ imprisonment,³⁰⁶ and Goran Damjanović, who had earlier been convicted of war crimes and sentenced to 11 years’ imprisonment,³⁰⁷ had violated Article 7 of the European Convention of Human Rights (‘No punishment without law’). This was because the two men had been sentenced under provisions of the 2003 Criminal Code of BiH (for war crimes committed during the 1992–1995 war), whereas the sentencing provisions of the 1976 Criminal Code of the former Socialist Federal Republic of Yugoslavia should have been applied.³⁰⁸ The judges held:

Admittedly, the applicants’ sentences in the instant case were within the latitude of both the 1976 Criminal Code and the 2003 Criminal Code. It thus cannot be said with any certainty that either applicant would have received lower sentences had the former Code been applied (…). What is crucial, however, is that the applicants could have received lower sentences had that Code been applied in their cases. (…) [S]ince there exists a real possibility that the retroactive application of the 2003 Code operated to the applicants’ disadvantage as concerns the sentencing, it cannot be said that they were afforded effective safeguards against the imposition of a heavier penalty, in breach of Article 7 of the Convention.³⁰⁹

As a result of this human rights violation, the Court of BiH scheduled new trials in early October, not only for Maktouf and Damjanović, but also Goran Damjanović’s brother, Zoran Damjanović, who did not file an application with the European Court.³¹⁰

It was clear immediately that the European Court’s ruling “could set a precedent for more retrials in the Balkan country”,³¹¹ which was exactly what happened: it quickly encouraged ten more men, namely Slobodan Jakovljević (sentenced to 28 years for genocide), Aleksandar Radovanović (sentenced to 32 years for genocide), Branislav Medan (sentenced to 28 years for genocide), Brane Džinić (sentenced to 32 years for genocide), Milenko Trifunović (sentenced to 33 years for genocide), Petar Mitrović (sentenced to 28 years for genocide), Nikola Andrun (sentenced to 18 years for war crimes against civilians), Milorad Savić (sentenced to 21 years for war crimes against civilians), Mirko (son of Špiro) Pekez (sentenced to 14 years for war crimes against civilians), Mirko (son of Mile) Pekez (sentenced to 29 years for war crimes against civilians), to complain on the same grounds.³¹² On 22 October 2013, the Constitutional Court of BiH indeed upheld the appeals of the men, found the human rights violation pursuant to Article 7 of the ECHR and ordered the war crimes court to reach a new decision, as a result of which the Appellate Division of the war crimes court suspended the prison sentences and released the men,³¹³ this to the anger of the victims’ relatives and friends.

And others followed, such as Zrinko Pinčić (sentenced to nine years for war crimes against civilians).³¹⁴ It was reported that “[a]ccording to legal expert Goran Simic, the EU court decision could lead to annulment of up to 50 similar cases that include almost 70 convicts”.³¹⁵

Nevertheless, re-trials commenced and new sentences were issued, such as against the brothers Goran and Zoran Damjanović on 13 December 2013 (six years and six months, and six years, respectively)³¹⁶ and against Mirko (son of Špiro) Pekez and Milorad Savić on 18 December 2013 (10 years and 15 years, respectively).³¹⁷

In last year’s Year in Review, the Danish case against T., a school inspector and teacher who allegedly acted as the head of a death squad during the Rwandan genocide, was discussed. After Rwanda had requested T’s extradition in February 2012, the Danish Minister of Justice, on 29 June 2012, decided that T. was to be extradited to Rwanda.³¹⁸ T. challenged this decision in court, but both in first instance (19 November 2012) and in appeal (22 March 2013), the decision to extradite was affirmed.³¹⁹ He subsequently challenged the appeals decision at the Danish Supreme Court, but on 6 November 2013, also the Supreme Court held that T.’s extradition to Rwanda was lawful.³²⁰ Among other things, the judges found that T.’s argument that he would risk being subjected to torture or inhuman treatment or that his trial would be unfair in Rwanda had to be dismissed. In doing so, they referred to the Ahorugeze v. Sweden judgment of the European Court of Human Rights of 27 October 2011,³²¹ where the judges noted: “Nor has any evidence been submitted or found which gives reason to conclude that there is a general situation of persecution or ill-treatment of the Hutu population in Rwanda.”³²² The Danish judges, following up on this, opined:

The Supreme Court has no information that provides a basis for any other assessment. There is moreover no information about special conditions concerning T according to which he should be at risk of persecution or inhuman treatment contrary to section 6(1) or (2) of the Extradition Act or Article 3 of the Human Rights Convention.³²³

As to the fair trial issue, the European judges in Ahorugeze concluded that “there is no sufficient indication that the Rwandan judiciary lacks the requisite independence and impartiality”³²⁴ and that “the applicant, if extradited to stand trial in Rwanda, would not face a real risk of a flagrant denial of justice.”³²⁵ In the same vein, the judges of the Danish Supreme Court held that there are “no grounds to assume that if extradited to Rwanda, T would receive treatment that would constitute a flagrant denial of his right to a fair trial.”³²⁶

Also in France, decisions involving the Rwandan genocide were issued in 2013. On 22 January 2013, Innocent Musabyimana was arrested on charges of genocide and crimes against humanity.³²⁷ After Rwandan Prosecutors requested Musabyimana’s extradition, a French appeals court in Paris decided on 13 November 2013 that he could indeed be sent to Rwanda.³²⁸ The same was decided for Claude Muhayimana, accused of participating in killings and other crimes against humanity, and about whom a lower French court in Rouen already decided in March 2012 that he could be sent to Rwanda.³²⁹

Moreover, on 29 March 2013, Pascal Simbikangwa, a former Rwandan Army captain and head of the Central Intelligence during the Rwandan genocide, and detained by the French government since 2008, was ordered to stand trial in France for complicity in genocide and crimes against humanity,³³⁰ possibly paving the way for the first French trial of a Rwandan person allegedly involved in the 1994 genocide.

And a few days later, French police officials in Toulouse arrested Tite Barahira, a former Rwandan leader, for conspiracy to commit genocide.³³¹

Finally, on 11 July 2013, Laurent Serubuga, a Hutu ex-colonel, was arrested in the north of France on the basis of an international arrest warrant in connection to the 1994 genocide. However, on 12 September 2013, a French appeals court in Douai rejected his extradition to Rwanda, holding that “because the crimes of which Serabuga [sic] was accused occurred more than 10 years ago, the claims were barred by the statute of limitations. Additionally, the court held that at the time when the crimes were committed, genocide and crimes against humanity were not against the laws of Rwanda”.³³²

In the case against General Efraín Ríos Montt, the country’s former head of state (between March 1982 and August 1983) (see again last year’s Year in Review), many developments occurred. On 28 January 2013, Judge Miguel Angel Galvez, the first-instance judge of High Risk Court “B”, overseeing the preliminary phase of the trial after Judge Carol Patricia Flores, the first-instance judge of High Risk Court “A”, had been recused by an appeals court on 23 November 2011,³³³ ordered Efraín Ríos Montt, who is tried together with his former head of intelligence José Mauricio Rodríguez Sánchez, “to stand trial on charges of genocide and crimes against humanity stemming from the killing of more than 1,700 villagers of Mayan ancestry”.³³⁴ On 11 March 2013, the Constitutional Court rejected an amparo filed by Montt and Sanchez which claimed that the 1986 amnesty should bar the prosecution³³⁵ and on 19 March 2013, the historic trial commenced before a three-judge panel of the First High-Risk Tribunal A, headed by Judge Yassmin Barrios. Navi Pillay, the UN High Commissioner for Human Rights, welcomed the start and noted that “[t]his is the first time, anywhere in the world, that a former head of State is being put on trial for genocide by a national tribunal”.³³⁶ However, the months that followed showed many obstacles in the proceedings: on 17 April 2013, Judge Patricia Flores issued a notification of the decision of almost one year old by the Supreme Court which determined as invalid the recusal request that led to the replacement, on 23 November 2011, of Judge Flores by Judge Galvez (see above).³³⁷