International Justice Map

Mai 2009 // An overview on the latest developements in the field of international criminal law

 

ICC: Latest report of the Special Working Group on the Crime of Aggression

The final meeting of the International Criminal Court’s Special Working Group on the Crime of Aggression was held February 9-13, 2009. It culminated in the latest incarnation of the proposed amendments to the Rome Statute regarding the crime of aggression (Discussion paper), submitted to the Assembly of State parties by the Chairman of the Working Group, Ambassador Christian Wenaweser of Liechtenstein.

The Discussion paper begins with a proposed definition of the crime of aggression (a broad definition as well as seven constitutive acts). Some member states have criticised this definition stating that it did not adequately capture the activities of armed groups, especially where such activities were sanctioned by a state.
The second major area of expansion of the Discussion paper concerns the jurisdiction that the ICC will enjoy over the crime of aggression. Several different proposals within the paper highlight the difficult decision that will need to be made before the final version of this amendment can be passed. Some states are in favour of allowing the ICC to act only where the Security Council has previously deemed a situation to be an act of aggression, whereas others are willing to give more power to the General Assembly, the International Court of Justice or even to the prosecutor of the ICC to determine when this provision has been violated. It is problematic to limit the reach of the ICC based on the decisions of other United Nations bodies since the Council, the General Assembly and the ICJ are concerned with state action while the ICC has jurisdiction over individuals.

This final meeting of the Special Working Group has brought the ICC one step closer to amending the Rome Statute to incorporate the crime of aggression, but the Assembly’s reactions to the Discussion paper submitted by the Group make it clear that the disagreements that plagued the Rome Conference on this subject have yet to be resolved.

Resources:
Discussion paper on the crime of aggression proposed by the Chairman (revision January 2009) (February 19, 2009)
Report of the Special Working Group on the Crime of Aggression (February 20, 2009)

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The European Court of Human Rights sanctions the principle of universal jurisdiction

In its March 17th 2009 decision Ould Dah v. France, the European Court of Human Rights (ECtHR) recognized for the first time the principle of universal jurisdiction.
The case was based on a July 2005 in absentia judgment by the Criminal Court of Nîmes (France), which had sentenced Ely Ould Dah, a former officer of the Mauritanian army, to 10 years in prison for acts of torture based on the principle of universal jurisdiction. It was the first time this principle had been used before French courts. As of today, over ten proceedings are based on it.

The ECtHR declared Ould Dah’s application, which he had lodged in 2003, inadmissible during the pre-trial phase. In its judgment, the Court highlights the fact that the applicant did not contest the decision of the French court that it had jurisdiction to try him. National courts can apply universal jurisdiction under certain circumstances.

With regards to torture, the Court notes that the “‘absolute necessity’ of prohibiting and penalising torture thus justified, in the exercise of universal jurisdiction (i.e. the right of States to prosecute the perpetrators of acts of torture committed outside their own jurisdiction), not only that the French courts declared that they had jurisdiction to try the case, but also that they would apply French law. Otherwise, application of the Mauritanian amnesty law, which served merely to grant impunity to the perpetrators of torture, would deprive the universal jurisdiction provided for by the United Nations Convention of 1984 of its substance.” This decision sanctions the use of universal jurisdiction to get defeat amnesty laws that some countries adopt to protect authors of international crimes.

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Peru: Conviction of former president Fujimori

Lima, Peru – On Tuesday April 7, Alberto Fujimori was sentenced to twenty-five years in prison. This verdict marked the end of eight years of legal proceedings and of a fifteen-month trial against the former president of Peru. An international arrest warrant had been issued against Fujimori in 2001. He was arrested in Chile in November 2005 and extradited to Peru in September 2007.

Fujimori was found guilty of ordering the murders of twenty-five civilians at the hands of the “Colina,” a military death-squad. The Fujimori trial centered around the 1992 La Cantuta affair, in which nine students and a university professor were abducted and assassinated, as well as the deaths of fifteen people who were mistaken for guerilla sympathizers and brutally murdered during a barbecue in a suburb of Lima. Responsibility for these murders and others by the Colina was relatively easy to attribute to Fujimori because orders were often given in writing. With the help of these documents, the chain of command leading to the president was established.

The accusations against Fujimori were proven beyond a reasonable doubt thanks to detailed testimony and the work of the Peruvian Truth and Reconciliation Commission. This marks the first time that a democratically elected Latin American president has been judged and convicted in his own country for human rights violations. According to Human Rights Watch, the proceedings against Fujimori met international guarantees for a fair trial. The verdict should put pressure on the current president, Alan Gracia, who is also accused of having violated human rights norms during his first tenure in office in the 1980s.

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UN mission to investigate Israeli actions during Gaza attacks

The UN Human Rights Council has requested an investigation into the alleged war crimes committed during the recent Israeli offensive in Gaza. Richard Goldstone, a South African of Jewish descent and former prosecutor for the International Criminal Tribunals for ex-Yugoslavia and Rwanda, has been appointed as head of the mission. The team will also be composed of Christine Chinkin, a London School of Economics law professor, Desmond Travers, a retired Irish colonel and Hina Jilani, a lawyer and human rights expert from Pakistan. The mission is tasked with neutrally evaluating all violations of human rights and humanitarian law by all parties to the conflict.

Israel is accused of having violated international humanitarian law, especially for using white phosphorus bombs in civilian zones, for denying access to medical help for the grievously wounded, for the blockade of the Gaza strip which amounted to collective punishment of the civilian population and for attacks on protected persons.

According to the UN Special Rapporteur on the Human Rights situation in the Palestinian Territory, more then 1,400 Palestinians were killed during the Israeli offensive between December 27, 2008 and January 18, 2009, of which more than 900 were civilians. According to the Israeli military, a third of those killed were civilians.

An internal investigation by the Israeli army concluded that no war crimes had been committed during the offensive even though soldiers who participated in the attacks testified to the contrary. Even though the International Criminal Court does not have jurisdiction over Israel, its prosecutor, Luis Moreno Ocampo has received numerous reports concerning the Israeli offensive. The ICC could investigated these alleged crimes if the UN Security Council referred the situation under Chapter VII of the Charter of the United Nations or if Israel accepted its jurisdiction.

A criminal investigation is currently pending in Spain against six high-ranked Israeli military officers, including Benjamin Ben-Eliezer, the former Minister of defence. They are accused of having committed crimes against humanity during a 2002 aerial bombing of Gaza. These proceedings are possible thanks to the concept of universal jurisdiction, which allows a country like Spain to bring to justice those accused of having committed certain international crimes, even if they acted elsewhere.

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Kenya: Government once again fails to set up Special Court to investigate post-election violence

The Kenyan government has once again failed to pass legislation to establish a Special Tribunal to bring to justice those who committed serious crimes during the civil unrest of January 2008. More than 1,500 people lost their lives in the violence that flared up throughout Kenya following the contested December 27, 2007 presidential election.

The idea of creating this hybrid court, to be composed of Kenyan and international judges, was first introduced by the Commission of Inquiry into the Post Elections Violence (CIPEV or Waki Commission) in the final report it submitted to president Mwai Kibaki and prime minister Raila Odinga on October 15, 2008. The report set January 30, 2009 as the deadline by which the government was to pass legislation to establish the tribunal. However, parliament refused to pass this constitutional amendment on February 12, 2009. Two weeks later, on February 24,  Kofi Annan, who played a major role in ending the violence and is currently the chairman of the Panel of Eminent African Personalities, granted the government more time to reintroduce the measures.  It is this new deadline that the government has once again violated.

The CIPEV had refused to publicise the names of alleged perpetrators in its report. Instead, it placed these names along with supporting evidence in a sealed envelope which it entrusted to the Panel of Eminent African Personalities. The Waki report envisioned that this information would be forward to the prosecutor of the International Criminal Court in case the government refused to cooperate in the creation of the Special Tribunal. Luis Moreno-Ocampo has recently confirmed that the situation in Kenya is being monitored by his office but Kofi Annan has yet to forward the sealed envelope to his office.

Resources:
Kenya National Dialogue and Reconciliation
Human Rights Watch:
Press release calling on the Kenyan government to quickly establish the Special Tribunal
Memorandum explaining the procedures of the International Criminal Court in relation to the special tribunal

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Hariri Case: The latest developments of the Special Tribunal for Lebanon

On March 1st, 2009, the Special Tribunal for Lebanon (STL) began its work in the Netherlands. Set up in 2007 by resolution 1757 of the UN Security Council in order to try those who committed the attack which killed former Lebanese prime minister Rafic Hariri and 22 others on February 14th, 2005, the tribunal is located in Leidschendam, in the former offices of the Dutch intelligence department.

The tribunal is composed of 11 judges and is presided by Italian Antonio Cassese, who was appointed on March 24th. Daniel Fransen (Belgium) will hold the position of pre-Trial judge. The names of the other nine judges, of which four are of Lebanese nationality, will remain undisclosed for security reasons until they officially take office, at a date to be determined by the UN Secretary General. The judges, the registrar and the prosecutor of the STL (Canadian Daniel Bellemare) were sworn in at the end of March. The judges have also adopted various documents concerning the work of the tribunal.

On March 31st, the Tribunal issued a request to the Lebanese authorities asking them to defer the case to the STL, to hand over to the Prosecutor the result of their investigations and to submit a list of all persons detained in connection with the investigation. The deferral took place on April 8. The Lebanese prosecutor seized with the case revoked the arrest warrants while keeping in detention four persons suspected to be involved in the attack. The suspects are Generals Mustafa Hamdane, former head of the presidential guard, Jamil Sayyed, former head of general security, Ali Hajj, former head of the national security forces and Raymond Azar, former head of the army’s intelligence services.  Mid-April, the pre-Trial judge told the tribunal it had until April 27 to justify the need to keep these suspects in detention in order to comply with the internationally guaranteed right of every person held in detention to be presented quickly before a judge. 

Given the complexity of the case and its connection to terrorism, it will probably be years before the tribunal, which just began its work, announces the opening of its first trial according to the Registrar Robin Vincent. He recently resigned on April 17th, effective June 2009.

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