Human Rights Brief

Volume 13 | Issue 3 Article 16

2006 Updates from the International Criminal Courts Mariam Ahmedani American University Washington College of Law

Meghan Stewart American University Washington College of Law

Brianne McGonigle American University Washington College of Law

Lizzie Rushing American University Washington College of Law

Anne Heindel American University Washington College of Law

See next page for additional authors

Follow this and additional works at: http://digitalcommons.wcl.american.edu/hrbrief Part of the Criminal Law Commons, Human Rights Law Commons, and the International Law Commons

Recommended Citation Ahmedani, Mariam, Meghan Stewart, Brianne McGonigle, Lizzie Rushing, Anne Heindel, and Leslie Thompson. "Updates from the International Criminal Courts." Human Rights Brief 13, no. 3 (2006): 61-68, 79.

This Column is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Human Rights Brief by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. Authors Mariam Ahmedani, Meghan Stewart, Brianne McGonigle, Lizzie Rushing, Anne Heindel, and Leslie Thompson

This column is available in Human Rights Brief: http://digitalcommons.wcl.american.edu/hrbrief/vol13/iss3/16 Ahmedani et al.: Updates from the International Criminal Courts

UPDATES FROM THE INTERNATIONAL CRIMINAL COURTS

INTERNATIONAL CRIMINAL TRIBUNAL Albanian collaborators,” who were detained selves. Many prisoners suffered injuries FOR THE FORMER YUGOSLAVIA in the Lapusnik prison camp for prolonged such as broken bones and gunshots for periods of time under inhumane conditions which no medical treatment was provided. PROSECUTOR V. LIMAJ, ET AL., and routinely subjected to assaults, beatings, The Prosecution also presented evidence CASE NO. IT-03-66 and torture. Fourteen named prisoners were that the prisoners were regularly blindfold- On November 30, 2005, Trial Chamber alleged to have been murdered in the course ed, tied, and severely beaten or subjected to II of the International Criminal Tribunal for of their detention. Ten additional prisoners other extreme violence by masked KLA the Former Yugoslavia (ICTY or Tribunal) were allegedly executed in the nearby Berisa guards. Prisoners were forced to bury the issued a judgment in the case of Prosecutor v. Mountains on or about July 26, 1998, when injured and disfigured corpses of fellow Limaj, et al. The Chamber acquitted Fatmir Serbian advances forced the KLA to aban- prisoners, which the Tribunal characterized Limaj and Isak Musliu, commanders in the don Lapusnik. as severe mental suffering. The Chamber found that the detention and treatment of Kosovo Liberation Army (KLA), for war Each of the accused were charged with prisoners in these conditions constituted crimes and crimes against humanity alleged- eight counts for their acts at the Lapusnik cruel treatment punishable as war crimes. It ly committed in central Kosovo between prison camp, including one count of impris- also concluded that the evidence estab- May and July 1998. The Chamber sentenced onment, two counts of torture, one count of lished four incidents of torture and three Haradin Bala, the third defendant and a for- inhumane acts, two counts of murder as a murders of civilian prisoners at the mer foot soldier in the movement, to thirteen crime against humanity punishable under Lapusnik camp. The Chamber held, how- years in prison for his role in the cruel treat- Article 5 of the ICTY Statute, and two ever, that the Prosecution had failed to pro- ment, torture, and murder of prisoners at a counts of cruel treatment punishable as war vide enough evidence to prove its allegation KLA prison camp in the village of Lapusnik. crimes under Article 3(7). The Prosecution that 14 prisoners were murdered. The KLA emerged in the mid-1990s as charged each of the accused for their indi- an armed resistance movement to the official vidual criminal responsibility for these Five of the ten counts of the indictment Serb-dominated regime in Kosovo and grew crimes pursuant to Article 7(1) of the ICTY alleged crimes against humanity. To consti- considerably in size from 1997-1999. It car- Statute. In addition, Limaj and Bala were tute a crime against humanity, the conduct ried out numerous attacks on members of the each charged with two additional counts of alleged must be part of a widespread or sys- Serbian police and army in Kosovo and set murder (one count charged murder as a tematic attack directed against a civilian up roadblocks in the countryside. Despite crime against humanity and one charged population. The Chamber dismissed these claims by Serbs and some observers that the murder as violation of the laws or customs of five counts because the acts did not consti- KLA is a terrorist organization, many war) for their alleged roles in the execution tute crimes against humanity. In its decision Kosovars regard it as a legitimate guerrilla lib- of detainees in the Berisa Mountains. the Chamber stated that “there is evidence of eration movement that was, prior to NATO’s Because Limaj and Musliu were alleged to a level of systematic or coordinated organisa- intervention, fighting against an oppressive have exercised both de jure and de facto com- tion to the abduction and detention of cer- and authoritarian regime. mand over the KLA forces in charge of the tain individuals.” The Chamber went on to camp, the Prosecutor also charged them explain, however, that “[w]hile the KLA Throughout its tenure, the ICTY has with superior responsibility for all of the evinced a policy to target those Kosovo struggled to strike a balance between the alleged crimes pursuant to Article 7(3) of the Albanians suspected of collaboration with international community’s demand that ICTY Statute. The Prosecution thus had to the Serbian authorities, the Chamber finds atrocities committed by Serbian forces be prove that the alleged crimes against the that there was no attack directed against a prosecuted and the perception that certain prisoners at Lapusnik did in fact occur and civilian population, whether of Serbian or individuals, such as those who fought for the that Limaj, Bala, and Musliu had committed Albanian ethnicity.” KLA, are not being held to equal account. them or were responsible for their commis- As to the allegations that Limaj and Bala Although the trial of Limaj, Musliu, and sion as superior officers within the KLA. Bala had been seen by many as an attempt participated in the execution of detainees, by the ICTY to avoid accusations of political Evidence established that most of the 30 the Chamber noted that when the KLA bias, critics contend that the acquittal of referenced detainees at the Lapusnik camp closed the Lapusnik camp in July 1998 half Limaj and Musliu proves that the Tribunal is were held in inhumane conditions and that of the remaining detainees were marched a “victor’s court.” the camp itself was grossly overcrowded. into the Berisa Mountains. The bodies, later Several prisoners were tied by their hands exhumed from graves in the area, were iden- The indictment against Limaj, Musliu, or feet, or both, and most were chained to tified as part of the group who had remained and Bala claimed that KLA forces abducted the wall and unable to move from their under KLA guard upon evacuation from at least 35 civilians, Serbs and “perceived positions, which forced them to soil them- Lapusnik. Forensic examination further

Published by Digital Commons @ American University Washington College61 of Law, 2006 1 Human Rights Brief, Vol. 13, Iss. 3 [2006], Art. 16 established that six of the nine victims died KLA, which is often viewed as an amor- The Trial Chamber found that Simba from bullet wounds fired from Kalashnikov phous group of guerilla forces, as a coherent participated in a joint criminal enterprise rifles, which were the weapons traditionally and established political organization. The (JCE) with local leaders and other promi- used by KLA guards. The Chamber found judgments have also raised speculation nent individuals to kill Tutsi civilians at this evidence sufficient to conclude that about the potential outcome of the upcom- these three sites. Under the JCE form of lia- these nine individuals were prisoners from ing joint trial of former Prime Minister bility, individuals may be held criminally the Lapusnik prison camp and that they had Ramush Haradinaj and two others said to responsible for their “assistance in, or contri- been executed by KLA guards. have been his subordinates in the KLA. The bution to, the execution of a common announcement of the Limaj judgment was [criminal] purpose.” The actus reus for JCE The question of identification was central televised in Kosovo and celebrated in the contains three elements: (1) “a plurality of to the Prosecution’s case against Limaj and streets of Pristina. In Serbia, however, many persons,” (2) “the existence of a common Bala. Although the Tribunal noted that there continue to wonder who, other than purpose which amounts to or involves the was a “strong possibility” Limaj had been Haradin Bala, will be held responsible for commission of a crime provided for in the personally present at the prison, it held that the brutal crimes perpetrated against civil- Statute,” and (3) “the participation of the the Prosecution had failed to prove his per- ians at the Lapusnik camp. accused in the common purpose.” The basic sonal involvement in the crimes. Specifically, form of JCE, which the prosecutor alleged there was conflicting testimony about Limaj’s in this case, requires that “all the co-perpe- presence at the Lapusnik prison and in the INTERNATIONAL CRIMINAL TRIBUNAL trators, acting pursuant to a common pur- Berisa Mountains on the day of the execu- FOR RWANDA pose, possess the same criminal intention.” tions. In weighing the evidence, the For crimes with special intent requirements, Chamber concluded that the Prosecution PROSECUTOR V. ALOYS SIMBA, all perpetrators must share the special intent. had not proven beyond a reasonable doubt CASE NO. ICTR-01-76-T that Limaj had any role in the crimes com- On December 13, 2005, Trial Chamber Describing the three April 21, 1994, mitted at the camp. With regard to Musliu, I of the International Criminal Tribunal for attacks as “a highly coordinated operation” the judges also ruled that there was “little evi- Rwanda (ICTR or Tribunal) issued its judg- that took place over the course of 12 hours, dence to identify ... [him] as having any kind ment in the case of Prosecutor v. Simba. the Trial Chamber determined that the only of involvement in the prison camp.” Simba, a well-known political and military reasonable explanation was that the attacks figure, fought with the Rwandan Army from were the result of prior coordination by a There was sufficiently more evidence 1963 to 1967 and led the 1973 military coup plurality of persons acting with the com- linking Bala to the Lapusnik camp and the d’etat that brought former President Juvénal mon purpose of killing Tutsi. Although the alleged murders of detainees. A number of Habyarimana to power. Simba’s military Trial Chamber did not accept the witnesses identified Bala as a guard at the achievements earned him prominence in Prosecutor’s argument that Simba had nec- camp in June and July of 1998 and testified Rwanda; the government recognized him as essarily taken part in planning the attacks, it that he had relatively frequent contacts with a national military hero and Rwandan found that he was a participant in the JCE prisoners. Bala was also identified as one of schools taught their students about his and had coordinated his actions with other the guards who escorted prisoners to the achievements. From 1989 to 1993, Simba participants beforehand. Berisa Mountains. The Chamber did not served as a member of the Rwandan parlia- consider the evidence sufficient to prove that With regard to Murambi Technical ment representing Gikongoro prefecture. Bala was criminally responsible for any of School and Kaduha Parish, the Trial the murders at the camp, but he was found The Prosecutor charged Simba with geno- Chamber found that Simba’s presence dur- guilty of cruel treatment of prisoners based cide, complicity in genocide, and the crimes ing the course of the attacks, provision of in part on his personal role in maintaining against humanity of extermination and mur- ammunition and weapons to the attackers, and enforcing the camp’s inhumane deten- der. At the close of trial, the Prosecution with- and urging of the attackers to “get rid of the tion conditions. He was also found guilty of drew the charges of complicity in genocide filth” indicated that he shared the perpetra- one incident of torture and of participating and murder as a crime against humanity. The tors’ common purpose of killing Tutsi. With in the murder of the nine civilians in the Trial Chamber found Simba guilty of geno- regard to the attacks at Cyanika Parish, how- Berisa Mountains. cide and extermination as a crime against ever, the Trial Chamber had “some doubt humanity and sentenced him to 25 years that he equally shared the common purpose Although this trial brought to light the imprisonment. These convictions stemmed of killing Tutsi” because “there [was] no horrific events surrounding the Lapusnik from Simba’s responsibility for the killing of direct evidence linking him to Cyanika camp, many have criticized the Tribunal’s thousands of Tutsi taking refuge at Murambi Parish or indicating that he knew and failure to categorize these acts as crimes Technical School, Cyanika Parish, and accepted that it would also form part of the against humanity or to hold Limaj and Kaduha Parish following the death of operation.” Because the Trial Chamber had Musliu, the higher ranking KLA officials, President Habyarimana and the start of the previously determined that the killing of accountable. This has been a consistent cri- genocide. On April 21, 1994, large groups of Tutsi in all three attacks was part of a com- tique of the Tribunal, which has struggled interahamwe militia surrounded and system- mon plan in which Simba participated, it is against charges of political bias. Many in atically attacked each location with grenades, unclear why it sought to separately establish Kosovo believe that the ruling vindicates the guns, and traditional weapons. his intent to kill Tutsi at Cyanika Parish. http://digitalcommons.wcl.american.edu/hrbrief/vol13/iss3/16 62 2 Ahmedani et al.: Updates from the International Criminal Courts Based on his involvement in the JCE, the the government at the time, did not physi- the Trial Chamber reduced his sentence to Trial Chamber found Simba guilty of geno- cally participate in the crimes, did not linger 45 years imprisonment. cide for the massacres at Murambi Technical at the massacre sites, and had subsequently School and Kaduha Parish. Noting that condemned the genocide. Moreover, the CONVICTION ON THE BASIS OF Tutsi are an ethnic group under the Statute’s Trial Chamber found that his prior record of SUPERIOR RESPONSIBILITY definition of genocide, the Chamber found public service could plausibly indicate that Kajelijeli submitted that the Trial that all the participants in the JCE, includ- his crimes were motivated by “misguided Chamber erred in finding that he exercised ing the accused, intended to kill members of notions of patriotism and government alle- leadership and effective control over the a protected group. Moreover, the Trial giance rather than extremism or ethnic Interahamwe and that he had the authority to Chamber looked to the scale and context of hatred.” Noting that “a sentence of life stop the killings in Mukingo, Nkuli, and the massacres and found that the only rea- imprisonment is generally reserved [for] Kigombe Communes. Before addressing this sonable conclusion was that the participants those who planned or ordered atrocities and argument, the Appeals Chamber recalled possessed the specific intent to destroy the those who participate in the crimes with par- that in the Kordi and erkez case, among Tutsi group in whole or in part. ticular zeal or sadism,” the Chamber deter- others, the ICTY Appeals Chamber had mined that Simba’s crimes did not warrant Simba, however, argued that because of determined that “concurrent conviction for the most severe punishment. his “close association with Tutsi and his tol- individual and superior responsibility in rela- erant views” he did not personally act with tion to the same count based on the same the specific intent necessary for a finding of JUVÉNAL KAJELIJELI V. PROSECUTOR, facts constitutes legal error invalidating the genocide. The Trial Chamber agreed that CASE NO. ICTR-98-44A-A Trial Judgment.” Endorsing this view, the “there [was] no clear evidence that Simba On May 23, 2005, the ICTR Appeals Appeals Chamber vacated Kajelijeli’s convic- was among the adherents of a hard line anti- Chamber issued its judgment in Juvénal tions for genocide and the crime against Tutsi philosophy,” but, referring to the Kajelijeli v. Prosecutor. Kajelijeli was humanity of extermination in so far as they analysis of the ICTY Appeals Chamber in bourgmestre of the Mukingo Commune were made on the basis of superior responsi- Kvocka et al., found that evidence of politi- from 1988 to 1993 and was reappointed to bility and affirmed his convictions insofar as cally moderate views does not preclude a rea- that post in June 1994. In its 2003 judg- they were based on a finding of individual sonable trier of fact from finding “in light of ment, Trial Chamber II found that in April responsibility. Nevertheless, the Appeals all the evidence provided” that an accused 1994 Kajelijeli exercised control over the Chamber found it necessary to consider has acted with the requisite intent. Pointing Interahamwe militia, played an important whether Kajelijeli held a superior position to Simba’s words and actions at the massacre role in transporting members of the over the Interahamwe in order to determine sites, as well as his military background and Interahamwe to locations where they whether the Trial Chamber was correct in knowledge of the attacks, the Trial Chamber attacked Tutsi, provided Interahamwe with considering his superior position as an aggra- found that “the only reasonable conclusion, weapons for these attacks, and directed vating factor for the purposes of sentencing. even accepting [the accused’s] submissions as Interahamwe to massacre Tutsi, which result- The Appeals Chamber noted that a supe- true, is that at that moment, he acted with ed in the deaths of more than 300 individu- rior is someone who possesses either de jure genocidal intent.” It is notable, however, als. For these acts, the Trial Chamber con- or de facto authority over subordinates and is that the Kvocka Appeals Chamber’s reason- victed Kajelijeli of both individual and supe- able to exercise effective control over them. ing was not in reference to genocidal intent, rior responsibility for genocide and extermi- Rejecting Kajelijeli’s argument that to estab- but addressed whether discriminatory intent nation as a crime against humanity and sen- lish “effective control” there must be proof had been established for the crime against tenced him to two concurrent terms of life that an accused exercises either “the trap- humanity of persecution. imprisonment. The Trial Chamber also con- pings of de jure authority” or “authority victed him of individual responsibility for The Trial Chamber held that Simba’s comparable to that applied in a military con- direct and public incitement to commit participation in the massacres at Murambi text,” the Appeals Chamber reiterated its genocide, for which he received a concurrent Technical School and Kaduha Parish also finding in the Bagilishema case that a de facto 15-year sentence. met the requirements for extermination as a civilian authority need only possess “the req- crime against humanity. The Chamber Kajelijeli filed appeals against his convic- uisite degree of effective control.” In this case found that Simba had knowledge of the tions, the length of his sentence, and the the evidence showed that Kajelijeli played a widespread attacks against Tutsi civilians in Trial Chamber’s dismissal of his preliminary “pivotal role” in leading the attacks. For the area, was present at two of the massacre motions challenging the Tribunal’s jurisdic- example, the Trial Chamber found, inter sites, and supported and encouraged the tion on the basis of the alleged illegality of alia, that Kajelijeli instructed the large-scale killing through his words and dis- his arrest and detention. The Appeals Interahamwe to kill Tutsis and supervised tribution of weapons. Chamber dismissed the majority of attacks, and that the Interahamwe supplied Kajelijeli’s appeals. It agreed, however, that him with daily updates on their efforts. In sentencing Simba to 25 years impris- the Tribunal had convicted Kajelijeli Based on these facts, the Appeals Chamber onment, the Trial Chamber noted that, improperly on the basis of superior responsi- affirmed the Trial Chamber’s conclusion that although Simba was a principle perpetrator bility and had violated Kajelijeli’s rights dur- the Appellant held a de facto superior posi- in the JCE, he was not a formal member of ing his arrest and detention. Consequently, tion as a civilian over the Interahamwe and

Published by Digital Commons @ American University Washington College63 of Law, 2006 3 Human Rights Brief, Vol. 13, Iss. 3 [2006], Art. 16 found that the Trial Chamber had been cor- to bring a suspect promptly before a domes- the provisional detention of a suspect prior rect to consider this position at sentencing. tic judge so that his or her rights, including to issuance of an indictment” and “ensure to notice of the charges, are safeguarded; and that certain rights of the suspect are respect- VIOLATION OF FUNDAMENTAL RIGHTS (2) to promptly request the Tribunal to pro- ed during that time.” Further, DURING ARREST AND DETENTION vide the cooperating state with a provisional arrest warrant and transfer order. The Appeals Chamber considers Kajelijeli also alleged that the Trial that it is not acceptable for the Chamber had erred in denying his motions In determining whether the Tribunal had Prosecution, acting alone under challenging the Tribunal’s personal jurisdic- met its obligations with regard to the legali- Rule 40, to get around those time tion on the basis of his alleged arbitrary ty of Kajelijeli’s arrest by the Benin authori- limits or the Tribunal’s responsibil- arrest and illegal detention — decisions that ties, the Appeals Chamber found that Rule ity to ensure the rights of the sus- the Appeals Chamber had itself twice 40 did not require the Prosecutor to provide pect in provisional detention upon affirmed. Deciding that it has the “inherent Kajelijeli with a copy of the arrest warrant. transfer to the Tribunal’s custody discretionary power” to correct any mistakes Moreover, “given the exigencies of the cir- under Rule 40 and 40bis, by using made in the past, the Appeals Chamber cumstance in which he was arrested,” the its power under Rule 40 to keep a reconsidered Kajelijeli’s arguments. In its lack of either an ICTR or a domestic arrest suspect under detention in a coop- analysis the Appeals Chamber recognized warrant did not violate his due process erating State. two periods of his detention. The first peri- rights. Kajelijeli was thus lawfully arrested od included the time from his arrest in under Rule 40. Nevertheless, in accordance In determining whether the require- Benin until his transfer to Arusha, Tanzania. with human rights law, “a suspect arrested at ments of Rule 40 and Rule 40bis had been The second period included the time from the behest of the Tribunal has a right to be met in this case, the Appeals Chamber noted his arrival in Arusha until his initial appear- promptly informed of the reasons for his or that, under human rights jurisprudence, the ance before the Tribunal. her arrest, and this right comes into effect right to be brought “promptly” before a from the moment of arrest and detention.” judge is violated if this does not take place LEGALITY OF ARREST AND DETENTION Although there was a dispute as to whether within a few days of detention. Moreover, IN BENIN Benin authorities had informed Kajelijeli of under human rights law, provisional deten- At the request of the ICTR Prosecutor, the reasons for his arrest, the Appeals tion of a suspect without charge is generally in 1998 Benin authorities arrested Kajelijeli Chamber found that the Prosecutor could discouraged, although it may be lawful “as without a warrant. Kajelijeli was held in cus- not rebut Kajelijeli’s claim that he had not long it is as short as possible, not extending tody in Benin for 85 days before he was been provided this information until he beyond a reasonable period of time.” The served with an ICTR arrest warrant or a received a copy of the ICTR warrant and Appeals Chamber recalled that in the confirmed indictment, and he was not indictment 85 days after his arrest. Barayagwiza case it had previously deter- brought before either a domestic or ICTR Consequently, the Appeals Chamber held mined that, in exceptional circumstances, a judge for 95 days. Kajelijeli argued that his that Kajelijeli’s “right to be informed of the suspect may be provisionally detained under arrest and detention in Benin were unlawful reasons as to why he was deprived of his lib- Rule 40bis without being formally charged under ICTR Rule 40, which authorizes the erty was not properly guaranteed.” for a maximum of 90 days. This length of provisional detention, however, would be Prosecutor to request that a state arrest a sus- In determining whether the Tribunal had warranted only “so long as the protections pect preliminarily, and arbitrary under met its obligations with regard to the length provided for the suspect’s rights under Rules human rights law. Moreover, he argued that of Kajelijeli’s detention, the Appeals 40 and 40bis of the Rules are adhered to.” his right to be promptly informed of the Chamber emphasized that Rule 40, which Because Kajelijeli’s rights were not adhered charges against him under human rights law authorizes provisional arrest and detention to, i.e., he was neither promptly provided had been violated. without an arrest warrant, must be read with informal information as to the charges together with Rule 40bis, which “allows for The Appeals Chamber noted that Rule of which he was accused nor promptly the Prosecution, within a reasonable period 40 does not provide explicitly for a suspect’s brought before a judge, the Appeals of time, to request a Judge of this Tribunal to right to be promptly informed of the charges Chamber found that his detention in Benin issue an order for the transfer of the suspect against him or her or to be promptly was unreasonable under both the ICTR from the custody of that State to the custody brought before a judge. The Appeals Rules and human rights law. Moreover, it of the Tribunal for purposes of provisional Chamber also noted that “[i]t is for the found that the Prosecution was partially detention prior to issuance of an arrest war- requested State to decide how to implement responsible for these violations because it rant and indictment.” A Rule 40bis request, its obligation under international law.” The had failed to request a Rule 40bis transfer which should include any provisional Prosecution, however, has “overlapping within a reasonable period of time. responsibilities” with cooperating states and charges against the suspect and a summary must “ensure that, once it initiates a case, of the material on which the Prosecution has LEGALITY OF DETENTION IN ARUSHA ‘the case proceeds to trial in a way that relied in making the charges, along with the After Kajelijeli’s transfer to the Tribunal respects the rights of the accused.’” order granting the request, must be served detention facility, he was held in custody for Consequently, the Prosecution has a two- on the suspect as soon as possible. Together, 211 days prior to his initial appearance. He pronged duty: (1) to request state authorities Rule 40 and Rule 40bis “place time limits on http://digitalcommons.wcl.american.edu/hrbrief/vol13/iss3/16 64 4 Ahmedani et al.: Updates from the International Criminal Courts did not have assigned counsel for 147 of Tribunal. Because the Appeals Chamber did refuge in a local church. The Trial Chamber those days. Agreeing with Kajelijeli that his not consider the facts of this case to fall sentenced Kamuhanda to life imprisonment right to counsel had been violated by the within this exceptional category, it held that after convicting him of genocide and exter- Tribunal, the Appeals Chamber found that that the remedy of setting aside jurisdiction mination as a crime against humanity. The even if Kajelijeli frustrated efforts by the would be disproportionate. Instead, the Appeals Chamber dismissed all but one of Registry to provide him with counsel of his Appeals Chamber found that the appropri- Kamuhanda’s allegations of error with choice Rule 44bis “clearly obligates the ate remedy for these violations was to reduce respect to the Trial Chamber judgment, Registrar to provide a detainee with duty Kajelijeli’s sentence. vacated his convictions as far as they were counsel, with no prejudice to the accused’s based on the modes of responsibility of insti- right to waive the right to counsel.” SENTENCING gation and aiding and abetting, and con- Moreover, Rule 44bis states that this require- firmed his convictions as far as they were Noting that the Trial Chamber “is ment “exists from the very moment of trans- based on the mode of responsibility of order- required to take into account any mitigating fer to the Tribunal and is not confined to ing. Despite this amendment to the convic- circumstances in determining a sentence[,]” purposes of the initial appearance only.” tion, the Appeals Chamber determined that the Appeals Chamber found that the Trial the “full picture of the case” had not Likewise, the Appeals Chamber found Chamber erred in finding that Kajelijeli did changed and thus no modification in sen- that the Tribunal had violated Kajelijeli’s not deserve any credit for allowing his wife to tencing was required. right to an initial appearance. It noted that, shelter four Tutsi in his Mukingo home, on their face, Article 19(3) of the ICTR offering words of comfort to them, and Statute and Rule 62 of the Rules require that, agreeing not to evacuate his wife and chil- MODES OF RESPONSIBILITY: once an accused is taken into the Tribunal’s dren partly on their account. Nevertheless, INSTIGATING, AIDING AND ABETTING, custody, he or she should appear before the the Appeals Chamber held that the Trial ORDERING Trial Chamber or a judge “without delay” in Chamber did not abuse its discretion in find- Kamuhanda argued that the Trial order to be formally charged. The wording of ing that these mitigating circumstances, even Chamber erred in finding him responsible Rule 62 is “unequivocal” in this regard if they had been taken into account, did not for genocide and extermination based on the because of the important purposes that the require a reduction in Kajelijeli’s sentence. modes of responsibility of instigating, aiding initial appearance serves, including entering a and abetting, and ordering. With regard to With regard to its decision to vacate plea, reading the official charges against the instigation, Kamuhanda argued that the Kajelijeli’s convictions based on superior accused, ascertaining the identity of the Prosecutor had not shown a causal link responsibility, the Appeals Chamber conclud- detainee, ensuring the rights of the accused between his alleged incitement to kill and ed that this change had no impact on his sen- have been respected, giving the accused an the April 12, 1994, attack at Gikomero tence. To remedy the violations of Kajelijeli’s opportunity to voice complaints, and sched- Parish Compound. The Appeals Chamber rights during his arrest and detention, howev- uling a date for the trial or sentencing. first noted that the Trial Chamber’s factual er, the Appeals Chamber set aside Kajelijeli’s Consequently, regardless of whether there findings were unclear as to which assailants two life sentences and 15-year sentence and were difficulties in assigning counsel for Kamuhanda had instigated. The Prosecution imposed a single sentence of 45 years impris- Kajelijeli, the Tribunal should have scheduled asserted that the Trial Chamber’s factual onment, minus credit for time served. his initial appearance without delay. findings related to a meeting at Kamuhanda’s cousin’s house a few days JEAN DE DIEU KAMUHANDA V. REMEDY FOR VIOLATION OF before the Parish attack, during which PROSECUTOR, APPELLANT’S FUNDAMENTAL RIGHTS Kamuhanda distributed guns, grenades, and CASE NO. ICTR-99-54A-A machetes and encouraged those present to In examining whether these violations of On September 19, 2005, the ICTR distribute the weapons to others and to Kajelijeli’s fundamental rights should result Appeals Chamber delivered its judgment in begin the killing in Gikomero Commune. in the Tribunal’s loss of personal jurisdiction, the case of Jean De Dieu Kamuhanda v. The Prosecution argued that, due to the Appeals Chamber found that, because it Prosecutor. Jean De Dieu Kamuhanda served Kamuhanda’s influence and authority in must “maintain the correct balance between as Minister of Higher Education and Gikomero, it was “only reasonable [for the “‘the fundamental rights of the accused and Scientific Research in the interim govern- Trial Chamber] to conclude that the persons the essential interests of the international ment of Rwanda from May 25, 1994, to who had been present during the meeting … community in the prosecution of persons mid-July 1994. Before 1994 his various gov- encouraged the perpetrators of the killings,” charged with serious violations of interna- ernment positions had made him influential even if they were not present at the attacks tional humanitarian law,” it should only in Gikomero Commune (Kigali-Rural themselves. The Appeals Chamber rejected decline to exercise its jurisdiction “where to Prefecture). In its 2004 judgment, Trial this reasoning as speculative due to the lack exercise jurisdiction in light of serious and Chamber II found that during the genocide of evidence that the individuals who met at egregious violations of the accused’s rights Kamuhanda had distributed weapons to the cousin’s house were present at the mas- would prove detrimental to the court’s members of the Interahamwe and others in sacre at the Parish Compound or that the integrity.” For example, this may be appro- Gikomero. It also found that on April 12, attackers came from Gikomero and thus priate when an accused is “seriously mis- 1994, Kamuhanda initiated and led attack- would necessarily have been influenced by treated” before being turned over to the ers in slaughtering Tutsi who had taken Published by Digital Commons @ American University Washington College65 of Law, 2006 5 Human Rights Brief, Vol. 13, Iss. 3 [2006], Art. 16 Kamuhanda. As a result, it held that the conviction both for aiding and abetting and he had seen Kamuhanda at the Gikomero finding that Kamuhanda had instigated ordering, it ultimately vacated the convic- Parish Compound on April 12, 1994. In his assailants to kill members of the Tutsi ethnic tion in so far as it was based on aiding and testimony before the Appeals Chamber, group was not supported by the evidence. abetting. In doing so, the Appeals Chamber however, GAA stated that he had not been at noted that, because both of these modes of the Parish Compound on April 12th but had Kamuhanda also argued that the Trial responsibility were based on the same set of testified falsely because he had believed Chamber had erred in concluding that he facts (i.e., Kamuhanda leading the attack Kamuhanda was responsible for the death of had aided and abetted the massacre at and ordering the attackers to start the many of his family members. Similarly, Gikomero Parish Compound. The Appeals killings), and because the finding that Witness GEX had testified before the Trial Chamber again noted the lack of evidence Kamahunda had distributed weapons was Chamber that Kamuhanda was present at that anyone who had received a weapon at found to be insufficient to maintain a con- the Parish Compound on April 12th and Kamuhanda’s cousin’s house had taken part viction for aiding and abetting, the mode of had started the attack by saying the word in the attack or that any of the weapons responsibility of ordering “fully encapsu- “mukore,” which means “to work.” Before Kamuhanda distributed had been used in late[d]” Kamuhanda’s criminal conduct at the Appeals Chamber, however, GEX testi- the attack. Consequently, it disregarded this the Gikomero Parish Compound. fied that she had not seen Kamuhanda at the factual finding. Nevertheless, it determined Parish that day and that she and several wit- that there were several other findings in the In separate opinions Judges Schomburg, nesses had colluded to incriminate record — including a finding that Shahabuddeen, and Meron expressed differ- Kamuhanda. Kamuhanda had told the attackers at the ent views as to the basis for and appropriate- Parish Compound to “work,” which was ness of this holding. Judge Schomburg Despite this testimony the Appeals understood as “an order to start the killings” agreed with the decision to convict Chamber found it “highly implausible” that — that supported the conclusion that Kamuhanda for “the more specific mode of these witnesses would have been able to Kamuhanda had directly and substantially liability” and argued that it would be a “vio- invent the detailed testimony they had origi- contributed to the killings at the Gikomero lation of the principle of logic to punish a nally provided, “which [was] corroborated by Parish Compound as an aider and abetter. person for having ordered and aided and other evidence.” The Appeals Chamber abetted at the same time in relation to the noted that “[w]itness GAA was consistent for Judge Schomburg disagreed with the same offense if ordering and aiding and many years in his statements that he had Appeals Chamber’s determination “that the abetting [were] based on the same criminal been at the Gikomero Parish in 1994, and evidence does not support any connection conduct.” On the other hand, Judge that he had seen [Kamuhanda] there.” between the distribution of weapons and Shahabuddeen strongly disagreed with the Further, the Appeals Chamber took into the subsequent attack.” He asserted that the holding, which he found to be “a significant account that neither GEX nor GAA had con- Trial Chamber had reasonably proved such extension” of the Chamber’s previous deci- tacted the Prosecution to recant their testi- a connection, particularly through the testi- sions regarding concurrent convictions. mony, but instead first contacted the mony of Witness GEK, a “highly credible” Noting that “[t]he fact that more than one Defense. The Appeals Chamber consequent- witness who testified that the weapons dis- method is employed does not mean that ly dismissed the additional evidence in its tributed at the home were the ones used there is more than one conviction for the entirety and noted that “if additional evi- during the massacre. Schomburg noted that crime,” he asserted there was no reason why dence admitted on appeal is subsequently “even if the weapons that were distributed an accused could not be convicted for a determined by the Appeals Chamber to be by Kamuhanda had not been used at all, crime based on multiple methods of respon- irrelevant or not credible, it provides no basis their mere distribution amounted to psy- sibility so that the “true measure” of his or for disturbing the Trial Chamber’s judgment, chological assistance, as it was an act of her criminal conduct could be defined. since it could not have been a decisive factor encouragement that contributed substan- Although Judge Meron agreed with Judge if the Trial Chamber had considered it.” tially to the massacre, thus amounting to Shahabuddeen that an accused can be pros- abetting if not aiding.” ecuted for multiple modes of responsibility TRUTH COMMISSIONS IN TIMOR LESTE With regard to the Trial Chamber’s find- for a single crime, in his view the Appeal ing that Kamuhanda ordered the attackers to Chamber’s determination was “relevant only COMMISSION OF TRUTH AND kill the Tutsi who had taken refuge in the to the factual findings of this particular FRIENDSHIP Parish Compound, Kamuhanda asserted case.” For this reason he did not consider In December 2004 Timor Leste and that it had not been demonstrated that he this decision to make any change to the law Indonesia agreed on the establishment of a held a position of authority in relation to the of the Tribunal. joint Commission of Truth and Friendship assailants. The Appeals Chamber, however, (CTF). The two governments established found that a reasonable trier of fact could ADDITIONAL TESTIMONY ADMITTED the CTF to address reported violations of conclude that Kamuhanda had authority REGARDING KAMUHANDA’S ALIBI human rights prior to and immediately fol- over the attackers because they obeyed his Unusually, the Appeals Chamber decided lowing the East Timorese popular consulta- order to start the massacre. to hear additional testimony with regard to tion in 1999, with a view to further promot- Although the Appeals Chamber deter- Kamuhanda’s alibi defense. Witness GAA ing reconciliation and friendship and pre- mined that the facts supported Kamuhanda’s had testified before the Trial Chamber that venting a recurrence of similar violence. The http://digitalcommons.wcl.american.edu/hrbrief/vol13/iss3/16 66 6 Ahmedani et al.: Updates from the International Criminal Courts CTF, however, was not officially formed Conflict Societies, including its lack of pub- occurred from 1974 to 1999 and issued its until March 9, 2005, and did not begin its lic support, its rushed establishment without final report to Timorese President Xanana work until August 2005. Headquartered in appropriate consultation, the lack of a trans- Gusmão in October 2005. On January 20, Bali, the CTF has a one-year mandate, parent nominating process, and the absence 2006, Timorese President Xanana Gusmão which may be renewed for a maximum of of guarantees of independence. Moreover, presented the report to the United Nations. one additional year. The CTF’s Terms of the letter concluded that the Commission’s The document outlines torture, arbitrary Reference specify that it has the power to mandate to recommend amnesties for those killing, massacres, and the starvation of access all available documents, “interview all who have committed crimes against human- some 100,000 to 180,000 East Timorese persons in possession of information consid- ity “is offensive to the victims and to every during Indonesia’s 24-year occupation. ered relevant by the Commission,” and rec- principle of international human rights law.” President Gusmão, Foreign Minister ommend amnesty for those “who cooperate José Ramos-Horta, and Defense Minister fully in revealing the truth.” UNITED NATIONS TRANSITIONAL Juwono Sudarsono have all publicly stated The first phase of the CTF was selecting ADMINISTRATION IN EAST TIMOR that they do not want to pursue punish- its members and handling other administra- In October 1999 the United Nations ment of those responsible for these atroci- tive matters. The ten-member panel is com- established a Transitional Administration in ties. They prefer to encourage efforts at rec- posed of legal experts, human rights figures, East Timor (UNTAET), which organized onciliation in the hopes of avoiding any and at least one retired military commander. two bodies to address human rights viola- destabilization that could accompany crim- Indonesian members include Achmad Ali, tions committed in the wake of East Timor’s inal prosecutions and to avoid alienating Wisber Loeis, Benjamin Mangkudilaga, referendum for independence from Indonesia, which is their most important Petrus Turang, and Agus Widjojo; Timorese Indonesia. One body, the Special Panel for trading partner. Similarly, the Commission members include Jacinto das Neves Serious Crimes (SPSC), had jurisdiction on Truth and Friendship’s Terms of Raimundo Alves, Dionisio da Costa Babo over war crimes, genocide, and crimes Reference states that “Different countries Soares, Aniceto Longuinhos Guterres Lopes, against humanity that took place from with their respective experiences have cho- Felicidade de Sousa Guterres, and Cirilio January 1 - October 25, 1999. The SPSC sen different means on confronting their Jose Jacob Valadares Cristovao. ceased operations on May 20, 2005, even past. The leaders and people of South though no senior Indonesian perpetrators Africa, where apartheid was defined as a On December 16, 2005, the CTF had faced trial in Dili and that trials in crime against humanity, opted to seek truth announced that it would confine its work to Jakarta of Indonesian military offices ended and reconciliation. Indonesian and Timor- reviewing the previous investigations and in acquittals for all. A UN Commission of Leste have opted to seek truth and promote court proceedings of the Indonesian Experts formed during the SPSC’s mandate friendship as a new unique approach rather National Commission of Inquiry on Human determined in June 2005 that the trials in than the prosecutorial process.” Rights Violations in East Timor in 1999 and Jakarta for crimes committed in East Timor the Ad-hoc Human Rights Court on East On February 14, 2006, Timorese Prime were “manifestly inadequate, primarily due Timor, as well as the Special Panels for Minister Mari Alkatiri announced that the to a lack of commitment on the part of the Serious Crimes and the Commission of country will not seek economic compensa- prosecution,” and that “[m]any aspects of Reception, Truth and Reconciliation in tion from Indonesia. This also makes it the ad hoc judicial process reveal[ed] scant Timor-Leste. As previously announced by unlikely that Timor Leste will seek repara- respect for or conformity to relevant interna- Deputy Chief Benjamin Mangkoedilaga, the tions from countries that supported tional standards.” As an alternative, it sug- second phase of the CTF commenced in Indonesia during the occupation, including gested the creation of an international tribu- January 2006. The Commission’s effective- France, the United Kingdom, and the nal such as those in Rwanda and the former ness during this six-month fact-finding peri- United States. Nevertheless, despite these Yugoslavia, but both Timor Leste and od will help determine if its mandate will be conciliatory actions, relations between Indonesia have rejected this suggestion as renewed for another year. Indonesia and Timor Leste remain strained. unnecessary in light of the establishment of Following the release of the CAVR report, Despite its establishment, the CTF has the Commission of Truth and Friendship Indonesia cancelled meetings that had been been severely criticized by victims’ groups (see above). The UN Commission further scheduled between the presidents of both and civil society in both Indonesia and found that there was “frustration among the countries to discuss human rights abuses. Timor Leste for being unrepresentative of people of Timor-Leste about the inability of victims’ desire for justice and accountability the judicial process to bring to justice those and for effectively promoting impunity. A outside the country’s jurisdiction, particular- EXTRAORDINARY CHAMBERS IN THE July 2005 letter to UN Secretary General ly high-level indictees.” COURTS OF CAMBODIA Kofi Annan signed by several leading inter- In December 2005 the Extraordinary UNTAET also established a national human rights groups has noted that Chambers in the Courts of Cambodia Commission for Reception, Truth and the Commission “runs against” every recom- (ECCC) approved a facility in Kambol as its Reconciliation in Timor (CAVR) as a com- mendation made by the Secretary General’s headquarters, where operations began in mid- plement to the (now defunct) work of the 2004 Report on the Rule of Law and February. The site, which was officially pre- Serious Crimes Investigation Unit. The Transitional Justice in Conflict and Post- sented to the Royal Government Task force for CAVR investigated human rights abuses that

Published by Digital Commons @ American University Washington College67 of Law, 2006 7 Human Rights Brief, Vol. 13, Iss. 3 [2006], Art. 16 the Khmer Rouge trials on January 18, 2006, identified some of the suspects it expects will contributed $1,000 and $500, respectively. will also house the UN component of the face charges. On March 12, 2006, trial press officer Reach court led by Administrative Deputy Director Sambath announced that six major donors Ieng Sary was foreign minister in the Michelle Lee. Because the site is located sever- (out of 27 participating countries) have Khmer Rouge regime. There is evidence that al kilometers outside of Phnom Penh, the agreed to release funds left over from United he publicly encouraged arrests and execu- ECCC will need to install public transporta- Nations Transitional Authority in Cambodia tions. He is 76 years old and currently lives in tion to facilitate access by ordinary citizens. to fill the ECCC’s $9.6 million budget Phnom Penh under police protection. It was shortfall; three major donors have asked for reported on February 18, 2006, that Ieng more time to decide. TRIBUNAL Sary was very ill and suffering from heart The ECCC has three goals: to offer jus- complications, but his daughter, Ieng Vithika, Through the work of the Documenta- tice to victims and survivors of crimes com- has said that her father is in good health. tion Center of Cambodia, the United States mitted by the Khmer Rouge from April 17, has spent millions of dollars funding Kaing Khek Ieu was the commander of 1975, to January 6, 1979; to prevent similar research and documentation of alleged war the secret police prison S-21, known for its atrocities in the future; and to give younger crimes committed in Cambodia. The U.S. brutal torture and interrogation techniques. generations of Cambodians better informa- has refused to support the ECCC, however, He is now 63 years old and has been in mil- tion about the crimes that occurred under either through the UN or through direct itary custody since 1999. the Khmer Rouge regime. support to the government. The United Khieu Samphan was the president of States Foreign Operations Appropriations The ECCC will consist of two chambers: Democratic Kampuchea (as the country Acts of 2004 and 2005 bar funding to Cam- a trial chamber with three Cambodian was called under the Khmer Rouge). He is bodia because of the sporadic political vio- judges and two international judges and an 74 years old and currently lives in Pailin, a lence the government has allegedly con- appellate chamber, known as the Supreme former Khmer Rouge stronghold in north- doned. Because the 2006 Foreign Opera- Court Chamber, composed of four west Cambodia. tions Appropriation Act does not contain Cambodian judges and three international similar prohibitions, however, the U.S. may judges. Judgments will necessitate a super Nuon Chea was known as Brother No. 2, provide support in the future. majority, which requires international judges second only to Pol Pot in the Khmer Rouge. to concur in any judgment. The ECCC’s As the leading ideologue of the Khmer mandate gives it personal jurisdiction over Rouge, he is suspected of devising and INTERNATIONAL COMMENTS “senior leaders” and “those most responsible implementing the execution policies of the In late January 2006, Human Rights for the most serious violations,” including Khmer Rouge regime. He is now 79 years Watch expressed concerns that the ECCC war crimes, genocide, crimes against human- old and lives in Pailin near Khieu Samphan. will not meet international standards given ity, crimes against internationally protected Cambodia’s notoriously corrupt judiciary. Ung Choeun was the commander of the person, and violations of Cambodia’s 1956 The group noted particularly the impor- military under the Khmer Rouge. He was Penal Code. The ECCC’s temporal jurisdic- tance that the ECCC be free from govern- known as “the Butcher” and is rumored to tion will cover 1975-1979, the period when ment control, interference, and intimida- have been one of the cruelest of the Khmer the Khmer Rouge governed Cambodia. tion. Nevertheless, most international Rouge leaders. He is currently 78 years old organizations support the ECCC because it On March 15, 2006, the Cambodian and has been in military custody since 1999. is likely Cambodia’s last opportunity to see government and the United Nations worked any accountability for Khmer Rouge crimes. out the final details for the ECCC. The BUDGET agreement covered topics such as security Upon the ECCC’s formation, the United and safety arrangements, as well as outlining Nations and Cambodia agreed to share its how facilities and services will be provided. NEW AND NOTABLE costs. Under this agreement, the UN would The Cambodian government will provide provide $43 million and Cambodia would the trial buildings, detention facilities for the EXTRADITION OF CHARLES TAYLOR TO cover the remaining $13 million. Cambodia accused, safe housing for witnesses, and all THE SPECIAL COURT FOR SIERRA has had significant problems meeting its electricity, water, and telephone services, LEONE share of costs, and the ECCC is now seeking while the UN will provide vehicles, comput- On March 26, 2006, the Special Court more donors and funding. ers, training, and general support for the for Sierra Leone’s Chief Prosecutor, defense. Trials are expected to commence in In October 2005 India contributed $1 Desmond de Silva, officially requested that 2007. Judicial and prosecutorial appoint- million to the Cambodian government ear- Nigerian President Olusegun Obasanjo ments are expected by July of this year. marked for the ECCC. On December 28, “have his authorities execute the warrant for 2005, the European Commission the arrest of Charles Taylor issued by the SUSPECTS announced that it would provide $1.2 mil- Special Court and transmitted to Nigeria in lion to help Cambodia cover its portion of November 2003.” De Silva’s request came The ECCC will focus on trying the high- the ECCC’s costs. Thailand has contributed shortly after newly elected Liberian level officials of the Khmer Rouge regime. $25,000, and Armenia and Namibia have President Ellen Johnson-Sirleaf told the UN The Cambodian Documentation Center has continued on back cover http://digitalcommons.wcl.american.edu/hrbrief/vol13/iss3/16 68 8 Ahmedani et al.: Updates from the International Criminal Courts UPDATES FROM THE INTERNATIONAL CRIMINAL COURTS: continued from page 68

Security Council that she had formally conscripting or enlisting children under the Mariam Ahmedani, a J.D. candidate at the Washington College of Law, covers the ICTY and the ICC for the asked President Obasanjo to extradite age of 15 years into armed forces or groups, Human Rights Brief. Taylor so he could stand trial at the Special or using them to participate actively in hos- Meghan Stewart, a J.D. candidate at the Washington Court. On March 29, 2006, Nigerian police tilities; and pillage). Citing security con- College of Law, wrote the Prosecutor v. Simba summary arrested Taylor as he was attempting to cross cerns, the Special Court has since formally for the Human Rights Brief. into Cameroon and “repatriated” him to requested that the Netherlands host Taylor’s Brianne McGonigle, a J.D. candidate at the Washington Liberia, whereupon he was placed in the trial, an option that President Johnson- College of Law, wrote the Prosecutor v. Kajelijeli sum- Special Court’s custody. Sirleaf also supports. mary for the Human Rights Brief. Lizzie Rushing, a J.D. candidate at the Washington Taylor served as President of Liberia form College of Law, wrote the Prosecutor v. Kamuhanda 1997 to 2003 and was indicted by the Court DEATH OF SLOBODAN MILOSEVIC summary for the Human Rights Brief. in March 2003 for war crimes committed On March 11, 2006, Slobodan Anne Heindel, Assistant Director of the War Crimes during the civil war that gripped much of Milosevic, former President of the Federal Research Office at the Washington College of Law, edited all of the ICTR case summaries. the region in the early 1990s. On April 3, Republic of Yugoslavia was found dead in 2006, Taylor made his initial appearance his cell in the Scheveningen Detention Unit Leslie Thompson, a J.D. candidate at the Washington College of Law, covers international criminal issues for before the Court and pled not guilty to of the International Criminal Tribunal for the Human Rights Brief. eleven counts of the amended indictment, the Former Yugoslavia (ICTY). ICTY including five counts of crimes against President Judge Fausto Pocar ordered a full humanity (murder; rape; sexual slavery and inquiry into his death, although Dutch any other form of sexual violence; other authorities later confirmed that Milosevic, inhumane acts; and enslavement) and six who suffered from chronic heart ailments, counts of violations of Article 3 common to died of natural causes. On March 14, 2006, the Geneva Conventions and Additional the Trial Chamber that was trying Protocol II (acts of terrorism; murder; out- Milosevic ordered the proceedings against rages upon personal dignity; cruel treatment; him terminated. HRB

Human Rights Brief Center for Human Rights and Humanitarian Law Washington College of Law 4801 Massachusetts Avenue, N.W. Washington, D.C. 20016-8043

Phone (202) 274-4023

www.wcl.american.edu/humright/center.cfm

Published by Digital Commons @ American University Washington College of Law, 2006 9