© T.M.C. Asser Press and the authors 2015Terry D. Gill, Robin Geiß, Robert Heinsch, Tim McCormack, Christophe Paulussen and Jessica Dorsey (eds.)Yearbook of International Humanitarian Law 2013Yearbook of International Humanitarian Law1610.1007/978-94-6265-038-1_7
7. Year in Review 2013
T.M.C. Asser Instituut, The Hague, The Netherlands
7.1.2 Central African Republic
7.1.8 Nigeria/Boko Haram
7.1.10 Sudan and South Sudan
7.3.1 Conventional Weapons
7.3.2 Nuclear Weapons
7.3.4 Chemical Weapons
2013 was marked with several noteworthy events with particular relevance to international humanitarian law, such as the continuation of the conflict in Syria and the incidents related to the use of chemical weapons in that conflict; several key decisions in international, hybrid and national courts related to the adjudication of war crimes, crimes against humanity and genocide; the passage of an Arms Trade Treaty text; the 150th anniversary of the International Committee of the Red Cross; and the release of the second part of the Turkel Commission Report. This chapter addresses a number of these issues among other events of note.
KeywordsInternational humanitarian lawInternational criminal lawArmed conflictChemical weaponsArms controlDisarmamentArms trade treatyTurkel commission report
Dr. Christophe Paulussen, LL.M., M.Phil., is a senior researcher international humanitarian law/international criminal law at the T.M.C. Asser Instituut. Jessica Dorsey, J.D., LL.M., is a researcher in international humanitarian, human rights and criminal law at the T.M.C. Asser Instituut and is a Ph.D. candidate at the University of Amsterdam. Sarah-Jane Koulen, LL.M. is a researcher in international human rights and criminal law at the T.M.C. Asser Instituut and a Ph.D. candidate at Leiden University. The Year in Review is not intended to be a comprehensive summary of all events that occurred in 2013, but rather a sampling of events of note with particular relevance to international humanitarian law. We would like to thank our colleagues from the Asser Public International Law Cluster, in particular Fréderique van Oijen, LL.M., and Alejo Martirosjan, LL.M., for their invaluable assistance in the preparation of this article and volume.
7.1 Situations and Phenomena
The conflict in Afghanistan, in existence since October 2001 (begun as a response to the attacks on the United States on 11 September 2001),1 was still ongoing in 2013. The Security Council extended the United Nations Assistance Mission in Afghanistan (UNAMA) mandate until 19 March 2014,2 and the NATO-led International Security Assistance Force (ISAF) authorization until the end of 2014,3 with an eye toward transitioning the situation into a more “secure and stable Afghanistan.”4 The plan laid out in Resolution 2120 is to “transfer full security responsibility in Afghanistan to the Afghan Government country-wide by the end of 2014.”5 One concrete step toward this was the full transfer of the Parwan Detention Facility (also known as the Bagram Military Prison)—the last prison under U.S. control—from the United States to the Afghan government in March.6 Additionally, NATO announced jointly with the Afghan government the fifth and final transition phase in June, in which leading combat operations will be carried out by the Afghanis, with ISAF still retaining a training, advising and assistance role.7
7.1.2 Central African Republic
The ongoing conflict in the Central African Republic between the Séléka rebels and the governmental forces began at the end of 2012 due to accusations of the Séléka rebels against President François Bozizé of failure to follow peace agreements from 2007 and 2011.8 Rebel forces began seizing towns at the end of 2012 but a ceasefire was signed at Libreville on 11 January.9 A few weeks later, the Security Council extended the mandate of the UN Integrated Peacebuilding Office in the Central African Republic until the end of January 2014.10 A UNICEF report from January called on all sides of the conflict to terminate child soldier recruitment, alleged to be happening in the conflict.11 Over the next several months, attacks continued to occur—subsequently condemned by the Security Council,12 which also called for a cessation of all hostilities.13
In March, the Séléka rebels marched into the capital of Bangui, overthrew the government causing President Bozizé to flee, and subsequently dissolved the constitution.14 In the following months, a chorus of rights groups, UN officials and the International Criminal Court voiced concern about various allegations of abuses taking place within the country as well as warnings about continued and escalating violence.15 In November, the UN Deputy Secretary General Jan Eliasson urged Security Council action to curb the ongoing violence16 and in December, the UN authorized a peacekeeping force (MISCA) for 1 year.17 The UN has warned of an impending food crisis, due to a drastic decline in crop production given the situation of armed conflict within the country.18 At the time of publication, the situation is still ongoing.
The conflict in Colombia, categorized by most as a non-international armed conflict,19 continued between government forces and Fuerzas Armadas Revolucionarias de Colombia (FARC) rebels. As a result of this conflict, ongoing since 1964, figures cited by Human Rights Watch show more than four million Colombians have been displaced and more than 100,000 are displaced each year that the conflict continues.20 In November of 2012, the first peace talks in approximately a decade between the FARC and Colombian government officials began in Norway.21 They subsequently moved to Cuba in 2013.22 In May, a deal was reached regarding land reform, the first of six major areas of discussion.23 Despite this progress, fighting still continued and 19 Colombian soldiers were killed in clashes with the FARC in July.24 Additionally, dozens of civilians were killed or injured and hundreds more were forced to flee from their homes.25 Amnesty International reports that:
In July, Colombia ratified the International Convention for the Protection of All Persons from Enforced Disappearance. However, it did not recognize the competence of the UN Committee on Enforced Disappearances, thereby denying victims and their families an important recourse to justice. Although accurate numbers were hard to establish, at least 30,000 people were thought to have been forcibly disappeared during the conflict.26
In August, FARC threatened to delay peace negotiations after President Juan Manuel Santos proposed legislation to put any agreements reached in negotiations to a nationwide referendum.27 In November, the government and FARC rebels reached an agreement on political participation in the case that a peace agreement is signed.28 At the time of publication, the situation is still ongoing.
7.1.4 Democratic Republic of the Congo
In 2013 in the Democratic Republic of the Congo (DRC), the conflict continued between the various rebel factions and the Congolese government in a continuation of fighting since 2003 (the formal end of the second Congo War), though 2013 did see the end of hostilities after several developments.29 Human Rights Watch released findings in February outlining war crimes and crimes against humanity committed by both the M23 rebels and the Congolese Army (reporting at least 36 women and girls were reported as being raped, at least 24 allegations of summary executions recorded, children allegedly forcefully recruited and hundreds of homes, offices and vehicles were reportedly looted).30 In May, a UN report31 also contained allegations of more than 135 rapes committed by Congolese troops and M23 rebels at the end of 2012.32
Also in February, ahead of talks amongst representatives of 11 African countries signing an accord in Ethiopia pledging to end the conflict in the DRC,33 the M23 rebels declared a ceasefire.34 In March, former Congolese General Bosco Ntaganda, who was indicted by the International Criminal Court (ICC) in 2006 for war crimes and crimes against humanity, voluntarily surrendered himself at the US Embassy in Rwanda.35 He was then extradited to The Hague to face charges at the ICC.36 The charges from the ICC read as follows: “the Chamber finds that there are reasonable grounds to believe that Mr. Ntaganda is criminally responsible as an indirect co-perpetrator (Article 25(3)(a) of the Statute) for the crimes against humanity of murder (Article 7(1)(a) of the Statute), rape and sexual violence (Article 7(1)(g) of the Statute) and persecution (Article 7(1)(h) of the Statute) and the war crimes of murder (Article 8(2)(e)(i) of the Statute), pillaging (Article 8(2)(e)(v) of the Statute) and rape and sexual violence (Article 8(2)(e)(vi) of the Statute.”37
Fighting continued in August, with shelling hitting the city of Goma, and a 3,000-member UN Intervention Brigade was deployed in order to fight and disarm rebels in the country’s east.38 Allegations of abuse continued through November,39 though after suffering defeats in strongholds in the east at the hands of the government as well as UN-backed forces, M23 signed a peace deal.40 Despite this peace accord, reports allege that M23 forces were recruiting and regrouping in neighboring Rwanda in December.41
7.1.5 Drones (Unmanned Aerial Vehicles) and Targeted Killing
In January, UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Ben Emmerson, QC, announced an official investigation into the civilian impact of drone strikes.42 This investigation was
To look at the evidence that drone strikes and other forms of remote targeted killing have caused disproportionate civilian casualties in some instances, and to make recommendations concerning the duty of States to conduct thorough independent and impartial investigations into such allegations, with a view to securing accountability and reparation where things can be shown to have gone badly wrong with potentially grave consequences for civilians.43
The United States also continued to make statements about its interpretation of the legality of drone strikes.44 In May, a drone strike memo was leaked to NBC, containing information about the legality of such strikes against US citizens abroad under domestic legal authority as well as the US interpretation of its international legal authority.45 Additionally in May, President Obama gave a speech at the National Defense University about the legality and future of the war against Al-Qaeda. He stated:
before going on to say that
America’s actions are legal. We were attacked on 9/11. Within a week, Congress overwhelmingly authorized the use of force. Under domestic law, and international law, the United States is at war with al Qaeda, the Taliban, and their associated forces. We are at war with an organization that right now would kill as many Americans as they could if we did not stop them first. So this is a just war—a war waged proportionally, in last resort, and in self-defense
America’s legitimate claim of self-defense cannot be the end of the discussion. To say a military tactic is legal, or even effective, is not to say it is wise or moral in every instance. For the same human progress that gives us the technology to strike half a world away also demands the discipline to constrain that power—or risk abusing it.46
Attorney General Eric Holder followed in a speech in June specifying the “extraordinary circumstances” under which drone strikes would be legal on US soil.47 In August, UN Secretary General Ban Ki-Moon stated that US drone strikes must comply with international law.48
In October, along with a complementary report by UN Special Rapporteur on Extrajudicial Executions, Christof Heyns, Emmerson presented his preliminary report outlining the legal framework and remaining questions to the General Assembly.49 Emmerson’s report presented the relevant legal framework with respect to the use of drones and targeted killing and concluded that international law demands more transparency in order to ensure compliance with the various applicable legal frameworks (e.g., international humanitarian law and international human rights law). One piece of evidence offered by the report leading to the recommendations on transparency was that many more civilians were killed than were reported by the US Government.50 The report from Heyns was complementary to that of Emmerson and stated:
Although drones are not illegal weapons, they can make it easier for States to deploy deadly and targeted force on the territories of other States. As such, they risk undermining the protection of life in the immediate and longer terms. If the right to life is to be secured, it is imperative that the limitations posed by international law on the use of force are not weakened by broad justifications of drone strikes.51
In the same week as the UN Special Rapporteurs filed their findings, Amnesty International52 and Human Rights Watch53 published research reports about the use of drones and civilian casualties in Pakistan and Yemen, respectively. In response, the US subsequently defended the legality of its use of drones, discounting the reports by the human rights organizations, stating that
[t]o the extent these reports claim that the US has acted contrary to international law, we would strongly disagree…[t]he administration has repeatedly emphasized the extraordinary care that we take to make sure counter-terrorism actions are in accordance with all applicable law.54
Following the collection of reports, on December 18, the UN General Assembly adopted a Resolution wherein Para 6(s) of the resolution urges States “to ensure that any measures taken or means employed to counter terrorism, including the use of remotely piloted aircraft, comply with their obligations under international law, including the Charter of the United Nations, human rights law and international humanitarian law, in particular the principles of distinction and proportionality”.55 Eleven days later, a US drone strike targeting a Yemeni wedding party killed 21 civilians and wounded 30 more, a situation that was later condemned by the UN Office of the High Commissioner for Human Rights.56
The conflict in Israel/Palestine continued throughout 2013. In January, the UN Humanitarian Coordinator, James W. Rawley, called for an end to the use of live ammunition against civilians in the West Bank by the Israeli armed forces,57 stating that such use may constitute “excessive use of force” and should be investigated in order to hold those responsible accountable.58 In February, UNHCHR Commissioner Navi Pillay, expressed concern regarding Palestinian prisoners on hunger strike59 regarding their deteriorating health conditions.60 This came two weeks before an investigation into the death of a Palestine prisoner, Arafat Jaradat, was urged by the UN Special Rapporteur for human rights in the Occupied Palestinian Territories, Richard Falk.61 Jaradat died while undergoing interrogation in an Israeli detention facility. Israeli authorities reported that he died of a heart attack, but that was not indicated on the initial autopsy report. Palestinian medical officials reportedly found clear signs of torture on the “previously healthy 30-year-old Jaradat”.62
UNICEF also reported mistreatment at detention facilities, but this time of children.63 The UNICEF report outlines that more than 700 Palestinian children are detained at Israeli military facilities per year, and these practices may violate international legal standards.64
In March, another report came out in criticism of Israeli practice under the auspices of the Human Rights Council.65 The International Fact-Finding Mission on Israeli Settlements in the Occupied Palestinian Territory concluded in its report that under the requirements of the Fourth Geneva Convention (Article 49), “cease all settlement activities without precondition…[and] initiate a process of withdrawal of all settlers from the Occupied Palestinian Territory”.66 Additionally, it called on Israel to “put an end to the human rights violations that are linked to the presence of settlements”.67 The European Union also added its voice to the concern about the legality of future settlement plans of over 1,500 homes in Jewish Settlements in East Jerusalem and the West Bank in a statement in October.68 EU High Representative Catherine Ashton stated: “[t]he EU has repeatedly stated that settlements are illegal under international law. It has also called on Israel to end all settlement activity, including natural growth, and to dismantle outposts erected since March 2001,” while deploring the new settlement plans.69
Special Rapporteur Richard Falk also presented evidence that approximately 20 % of all Palestinians (75,000) have been detained over the course of the 46-year-long occupation and additionally other human rights violations have occurred.70 In line with the reports on human rights violations, he called for an end of the Gaza Blockade in June because “the human suffering of the land, sea and air blockade imposed on the 1.75 million Palestinians living in one of the most densely populated and impoverished areas of the world has been devastating…[and] 6 years of Israel’s calculated strangulation of the Gaza Strip has stunted the economy and has kept most Gazans in a state of perpetual poverty and aid dependency”.71
Beginning in January 2012, several insurgent groups started a campaign for independence or autonomy for northern Mali in the Azawad area against the Malian government.74 The National Movement for the Liberation of Azawad (MNLA), initially backed by the Ansar Dine Islamist group, led the campaign with the aim of creating an independent homeland for the Tuareg people. Fighting continued throughout 2012, and despite a ceasefire agreement being drawn up, Ansar Dine accused Malian government officials of not meeting the terms of the agreement and suspended the ceasefire in January.75 In response, the Security Council expressed grave concern at the attacks.76 As fighting continued, the French and British militaries intervened at the request of the Malian government.77 January also saw the ICC open an investigation into allegations of war crimes.78 After another period of fighting, a ceasefire agreement was signed by Malian officials and Tuareg rebels in June in order to pave a way toward national elections in August.79 However, due to the Tuareg rebels’ allegations of Malian forces not upholding commitments agreed to in the peace accord, the ceasefire was again suspended in September.80 At the time of publication, this conflict was still ongoing.
7.1.8 Nigeria/Boko Haram
Boko Haram is a Salafi-Islamist group based in northern Nigeria that seeks to establish “pure” Sharia law in the country.81 Boko Haram, which forbids Western influence including education, began in 2001 by Mohammed Yusuf and in its quest to implement Sharia law, schools, mosques, and churches as well as bars and beer gardens have been bombed or attacked. This situation has been ongoing since 2009 and has killed more than 5,000. Since 2012, Human Rights Watch reports that more than 300 schools have been burned and over 10,000 students have been deprived of an education.82 In May, despite President Jonathan’s imposition of a state of emergency in the states where Boko Haram is the most active, attacks continued to occur.83 Regarding atrocities that occurred, the Prosecutor of the International Criminal Court found reason to believe that crimes against humanity of murder and persecution had been committed by Boko Haram and vowed to continue her investigation.84 In addition to allegations against Boko Haram, Nigerian security forces were also suspected of committing human rights abuses.85 One such example is the death of hundreds of Boko Haram suspects in custody in Nigeria’s detention system.86
The armed conflict in Somalia, between Al-Shabaab and Somali government security forces, African Union Mission in Somalia (AMISOM) troops, Ethiopian government troops and other allied militias since 2009, included ongoing attacks and allegations of war crimes and crimes against humanity in 2013. Al-Shabaab continues to carry out targeted killings and attacks against civilians. In March, the Security Council extended AMISOM’s mandate until the end of February 2014 and partially lifted the arms embargo by stating that the embargo: “shall not apply to deliveries of weapons or military equipment or the provision of advice, assistance or training, intended solely for the development of the Security Forces of the Federal Government of Somalia, and to provide security for the Somali people…”87 In June, the Security Council also authorized the creation of the UN Assistance Mission in Somalia (UNSOM) and deployed it for an initial phase of 12 months,88 and in November, increased the number of troops deployed under UNSOM from 17,731 to 22,126.89
Throughout the duration of 2013, several attacks were carried out by Al-Shabaab, such as the March attack on the Supreme Court,90 a June attack on the UNDP compound in Mogadishu,91 the Turkish embassy in Mogadishu in July,92 and the September attacks on a village restaurant93 and on a shopping center in Nairobi, Kenya.94 Human Rights Watch denounced many of the attacks as war crimes in April.95 The estimated death toll from 2013 fell from previous years to a total of 3,150 people.96 At the time of publication, the conflict is still ongoing.
7.1.10 Sudan and South Sudan
The current situation between Sudan and South Sudan can be traced back many years through two separate civil wars. Much of the current conflict stems from the disputed region of Abyei as well as the disagreement regarding the Greater Nile Oil Pipeline.97 Throughout the duration of the conflict, reports from organizations such as Amnesty International98 and Human Rights Watch99 have detailed alleged crimes against humanity and war crimes that have been committed by both sides in the conflict. The Enough Project, a human rights initiative, released a report in April alleging war crimes, instances of torture, and crimes against humanity carried out by the Sudanese government in South Kordofan and Blue Nile States.100 In August, the UN Security Council also expressed grave concern with the attacks on civilians and looting of UN and other international organizations in South Sudan’s Jonglei State.101 Shortly thereafter, Human Rights Watch reported on unlawful killing of civilians in the Jonglei State by the South Sudanese Army.102
The fighting escalated throughout the last three months of 2013, and by December 15, a coup was attempted against President Salva Kiir, led by opposition leader Riek Machar.103 Reports of ethnically targeted violence and more than 1,000 civilian deaths came from Human Rights Watch in the wake of the attempted coup.104 The African Union has strongly condemned the killing of UN personnel in South Sudan.105 At the time of publication, the conflict in South Sudan is ongoing.
The armed conflict in Syria—which began as protests from those opposed to the Syrian’s Ba’athist regime in response to the Syrian government’s attempts to quell an uprising in 2010’s Arab Spring and has now developed into an armed rebellion—has taken a massive civilian casualty toll. The death toll as of July 2013, when the UN halted its efforts in trying to keep track of casualties due to inherent difficulties in doing so, was over 100,000.106 In January, more than 50 nations called for the referral of the situation to the International Criminal Court (ICC).107 In February, the UN Independent Commission of Inquiry on Syria published a report alleging instances of war crimes committed by both sides of the conflict,108 in which it stated: “The depth of the Syrian tragedy is poignantly reflected in the accounts of its victims. Their harrowing experiences of survival detail grave human rights violations, war crimes and crimes against humanity. The destructive dynamics of the civil war not only have an impact on the civilian population but are also tearing apart the country’s complex social fabric, jeopardizing future generations and undermining peace and security in the entire region”.109 Human Rights Watch documented 156 instances of cluster bomb usage throughout the country, leading to several civilian casualties.110
In March, the United Nations Secretary General Ban Ki-Moon announced a probe into the possible use of chemical weapons in the conflict.111 (For more, please see the Chemical Weapons Sect. 7.3.3). Human Rights Watch published its report in April entitled: “Death From the Skies” outlining indiscriminate and deliberate air strikes on civilians, including attacks on bakeries, hospitals, various instances of cluster bomb attacks, the use of incendiary weapons and other allegations of unlawful air strikes.112 The UN High Commissioner for Human Rights, Navi Pillay, condemned the atrocities and renewed a call for the situation to be referred to the International Criminal Court in May. In a press release, she stated: “I believe that serious human rights violations and other acts amounting to war crimes and/or crimes against humanity have been committed. We must make it clear to both the government and the armed opposition groups that there will be clear consequences for the people responsible for these crimes”.113
The UN International Independent Commission of Inquiry also documented a number of abuses amounting to war crimes and crimes against humanity from both sides of the fighting and echoed a call for referral to justice. In its May report to the Human Rights Council, it found reasonable grounds to believe that chemical agents had been employed as weapons, though exact perpetrators could not be identified. The report concluded with a call for inclusive negotiations for peace.114 The Human Rights Council also condemned foreign military involvement in Syria, as this phenomenon was on the rise, though it did not call for a cessation of arms flow into the country.115
In August, Pillay condemned the allegations of chemical weapons use and urged a prompt investigation, calling on both sides to allow a team of experts to investigate the allegations.116 The Security Council passed Resolution 2118, approximately one month later, requiring verification and destruction of Syria’s chemical weapons stockpiles, calling for convening of Geneva II peace talks and endorsing the establishment of a transitional governing body.117 Several countries, including the US118 France,119 and the UK,120 had weighed and outlined legal justifications and ramifications of possible strikes in Syria, given the use of chemical weapons.121 This course of action was questioned on the basis of legality by many, including the UN Secretary General Ban Ki-Moon, and ultimately, no strike took place.122 In November, estimates from the UN signaled that approximately 9.3 million people (or 40 % of the population) were in need of humanitarian assistance.123
The conflict had also had spillover effects into neighboring Israel and Lebanon. In March, the Security Council had expressed grave concern about the cross-border fire affecting Lebanese civilians.124 In July, the President of the Security Council expressed growing concern regarding spillover effects of the conflict on the Lebanese political, security and humanitarian situations.125 With regard to Israeli involvement, Israeli Defense Forces fired into Syria in December after troops were shot at in the occupied Golan Heights.126
7.1.12 United States versus Al-Qaeda and Associated Forces
The United States has continued to engage in targeted killings via the use of unmanned aerial vehicles (UAVs or drones) against suspected terrorists in its fight against Al-Qaeda and affiliated forces in Pakistan, Afghanistan, Somalia and Yemen.127 Drone attacks in Pakistan were condemned by the Pakistani Foreign Minister in January,128 and in May, a Pakistani court (High Court of Peshawar) declared the strikes to be illegal.129 In December, the Yemini Parliament carried out a symbolic vote and banned US drone strikes.130 Around the same time, evidence surfaced that relationships between the United States and Afghanistan and Pakistan had become strained because of the use of drone strikes.131 (For more on the discussion about drones and targeted killings, see Sect. 7.1.5).
In other news related to the US’ fight against Al-Qaeda and affiliated forces, in January, Guantánamo detainee Abu Zubaydah sought a ruling from the European Court of Human Rights (ECHR) on the role of Poland in the CIA’s secret prisons based on allegations that Zubaydah was transferred to a secret site in Poland and subject to torture.132 The Court accepted the case in July,133 and the first hearing took place in December. This is the first time that the CIA’s “extraordinary rendition” program had reached the ECHR.134 At the time of writing, this case was still pending before the Court. Human Rights Watch urged Lithuania to reopen its investigation into its role and complicity in the CIA secret prison program in June, prior to taking over the EU rotating presidency.135 In October, the European Parliament, in light of the leaked information surrounding the US’ National Security Agency PRISM program, called on the immediate end of complicity and impunity of European nations with the United States’ secret prison program as it has led to violations of fundamental rights.136 The Council of Europe’s Commissioner for Human Rights, Nils Muižnieks, also called for accountability regarding European complicity in torture.137
At the end of April, President Obama declared a new attempt at closing the detention facilities at Guantánamo Bay, but at the time of writing, the detention facilities remain open.138 He did, however, lift the ban on transferring detainees to Yemen at the end of May in his speech at the National Defense University.139 In related news to Guantánamo Bay, five detainees implicated in the 9/11 attacks pursued charges under the Convention Against Torture (CAT) in October, alleging that the restrictive rules for classifying evidence violated the CAT, in that they disallowed lawyers for the defense to investigate charges that are based on their clients’ allegations of torture.140 With regard to allegations of torture, a court in the Netherlands blocked the extradition of a suspected terrorist (dual Pakistani-Dutch citizen Samir K.) to the United States based on evidence that Samir K. may have been tortured at the hands of American forces during his detention in Pakistan.141 On the other side of the coin, a court in Nigeria ordered the extradition of another suspected terrorist, Lawal Olaniyi Babafemi, a month after the Dutch court blocked Samir K.’s extradition.142
7.2 Tribunals and Courts
188.8.131.52 International Criminal Tribunal for the Former Yugoslavia
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
184.108.40.206 International Criminal Tribunal for Rwanda
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
220.127.116.11 Mechanism for International Criminal Tribunals
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.
18.104.22.168 International Criminal Court
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.
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
“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 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
22.214.171.124 EULEX Kosovo
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
126.96.36.199 Extraordinary Chambers in the Courts of Cambodia
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
188.8.131.52 Special Court for Sierra Leone
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.
184.108.40.206 Special Tribunal for Lebanon
The year 2013 at the Special Tribunal for Lebanon (STL) was marked by, among other things, alleged witness intimidation, the initial proceedings against Merhi and the preparations for the trial phase in the case Ayyash et al.
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
220.127.116.11 Bosnia and Herzegovina
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
This sentence was confirmed in appeal on 16 September 2013.303
[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
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