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Forum for International Criminal Justice Newsletter: March 2015 Forum for International Criminal Justice Newsletter: March 2015 Welcome to the IAP’s Forum for International Criminal Justice (FICJ) March 2015 Newsletter which focuses on the prosecution of war crimes, crimes against humanity and genocide, including a roundup of video highlights, announcements, publications and the major news developments from the past month. Please note that the items included in this publication do not automatically carry any endorsement from the IAP. Domestic legal news covered in this Newsletter includes: Chad ex-leader Hissene Habre is to be tried in Senegal for alleged war crimes, torture and crimes against humanity, in Africa’s first universal jurisdiction trial; Nepal’s Supreme Court has rejected amnesty for perpetrators of war crimes during the country’s civil war which ended in 2006, while the government is also setting up two commissions to probe these alleged crimes; and a Swedish court has sentenced Syrian rebel to five years in prison for war crimes. *Please have a look at the FICJ forum page on the IAP website and feel free to contribute: the Forum provides individual prosecutors with a password protected space to post news, announcements, etc. and to pose questions to fellow prosecutors from around the world. Your contributions will also be posted in this monthly newsletter. Passwords are provided to IAP members – if you do not have a password, check your membership status by contacting the IAP Office Manager, Evie Sardeman: [email protected]. Danya Chaikel – FICJ Coordinator | email: [email protected] Video Highlights Click here to watch a Lecture Join by theHassan FICJ B community: WWW.IAPClick here-ASSOCIATION.ORG/FICJ to watch a Statement of ICC/HOME Prosecutor Jallow, Prosecutor of ICTR and the United 1 FatouFollow Bensouda us on attwitter: a press @iaprosecutors conference in Uganda Nations Mechanism for International Criminal on the “long journey to bring justice to the Tribunals, on ‘Fair Trial in International Criminal victims of mass crimes committed by the Lord's Justice’. Resistance Army (LRA).” New Publications ICTR Prosecutor Releases Best Practices Manual on Referral of International Criminal Cases to National Jurisdictions ICTR Prosecutor Hassan Bubacar Jallow has released a best practices manual on the referral of international criminal cases to national jurisdictions for trial. The manual documents the ICTR Office of the Prosecutor’s (OTP) experience in securing the referral of ten genocide indictments to national jurisdictions for trial. Since the ICTR’s establishment on 8 November 1994, the OTP has referred two indictments to France and eight indictments to Rwanda. ICTR Prosecutor Hassan B Jallow The referral of these indictments marked an important milestone in the ICTR’s completion strategy. Without the referral of these indictments, the ICTR’s work would have been incomplete and a gap in impunity could have resulted. By referring these indictments to national jurisdictions for trial, the OTP also gave practical effect to the principle of complementarity. Under that principle, national authorities, not international courts or tribunals, bear primary responsibility for investigating and prosecuting international crimes. The OTP’s success in securing the referral of its indictments could not have been achieved without substantial outreach and capacity-building efforts and the cooperation of partners such as Rwanda, the European Union, Canada, and the United States of America. Together with their partners, the ICTR contributed to a host of legal reforms and infrastructure improvements at the national level that were necessary to secure the fair trial rights of the accused. The OTP also developed new strategies to demonstrate how fair trial rights would be honoured in practice. Many of those strategies could assist other courts or tribunals in assessing national capacity, as well as provide a basis for national jurisdictions to undertake their own assessment of compliance with internationally-recognized standards. The manual documents those best practices and lessons learned. It is part of a broader strategy the OTP has undertaken to preserve the ICTR’s legacy for future use. It is the OTP’s hope that this manual will assist other international and national courts to build on the ICTR’s achievements and empower national authorities to discharge their primary responsibility to investigate and prosecute international crimes in a manner consistent with international standards. Read the ICTR Best Practices Manual: Complementarity in Action: Lessons Learned from the ICTR Prosecutor’s Referral of International Criminal Cases to National Jurisdictions for Trial Join the FICJ community: WWW.IAP-ASSOCIATION.ORG/FICJ/HOME 2 Follow us on twitter: @iaprosecutors On the Independence of International Prosecutors by Richard Goldstone (Source: Symposium facilitated by James G Stewart on David Bosco’s new book, Rough Justice: The International Criminal Court in a World of Power Politics) Richard J. Goldstone is a former Justice of the Constitutional Court of South Africa, and the first Prosecutor of the UN International Criminal Tribunals for Rwanda and the former Yugoslavia. David Bosco’s book Rough Justice contains an excellent survey of the first decade of the International Criminal Court (ICC) and, in particular, of the role played by its first Chief Prosecutor, Luis Moreno Ocampo. Ocampo’s sometimes active and sometimes passive role with regard to each of the nine situations presently before the Court are carefully and comprehensively described and analysed. The central theme that runs throughout is the role of politics and especially major power politics with regard to the decisions taken by the prosecutor and its influence on the successes and failures of the Court. The development of that theme is set against the history of the international criminal tribunals that preceded the ICC. In setting up the two UN ad hoc tribunals for the former Yugoslavia and Rwanda, the major Western powers, and especially the United States, played an indispensable role. As the cold war had ended and atrocities were again being perpetrated in Europe, in 1992 Russia and China were prepared to support an ad hoc war crimes tribunal under the auspices of the Security Council. When, soon after, Rwanda initiated a call for a similar tribunal in response to the genocide committed in its country in the middle of 1994, the Security Council could hardly refuse. Importantly, both of those tribunals were in “I feel more strongly than does Bosco no way inconsistent with the foreign policies of the about the extent to which international P5 members of the Security Council. prosecutors have acted independently of the views of the major powers” – The successes of the ad hoc tribunals and of the “hybrid” Special Court for Sierra Leone encouraged a Justice Richard Goldstone number of less powerful nations, under the leadership of Canada, to call for a permanent international criminal court. They found it to be unacceptable that the final decision on whether to investigate atrocity crimes should be left to the Security Council subject to the veto power of the P5. The United States, China and Russia had some misgivings about such a court. They realised that it Join the FICJ community: WWW.IAP-ASSOCIATION.ORG/FICJ/HOME 3 Follow us on twitter: @iaprosecutors would operate outside their direct control. With the international courts established by the United Nations they were able to exercise a large measure of control over the jurisdiction, reach and powers of the court. They could not necessarily dictate policy to independent prosecutors and judges but they could certainly control their jurisdiction, resources and, to a large extent, the implementation of their orders and responses to their requests. I feel more strongly than does Bosco about the extent to which international prosecutors have acted independently of the views of the major powers. He does refer to the actions of Ocampo in calling for an arrest warrant for President Omar al-Bashir of Sudan in the face of objections from all of the P5 members of the Security Council. However, he raises some doubts about the reasons for other decisions such as the decision by the ICTY prosecutor deciding not to investigate alleged NATO war crimes in Serbia during 2000; the ICTR prosecutor deciding not to investigate war crimes allegedly committed by the RPF during 1994 in Rwanda; and some of the investigations abandoned by Ocampo. I will respond briefly. With regard to alleged war crimes committed by NATO during its bombing campaign in 2000, the Prosecutor (Carla del Ponte) accepted the advice given her by the ICTY’s chief international lawyer to the effect that the evidence available was not sufficient to justify a formal investigation. In particular he came to the conclusion that there was no basis upon which indictments could be issued against individual officials. The evidence was clear that the NATO leaders, political and military, were at pains to avoid, to the extent possible, targeting civilians. At worst, the allegations of civilian casualties were a consequence of negligence or errors of judgment. There was no evidence at all to suggest intentional targeting of civilians. In any event, war crimes that might nonetheless have been committed by NATO were substantially less grave than those that were being investigated by the ICTY against the Serb military. Serbia, under Slobodan Milosevic, had been conducting an egregious campaign of ethnic cleansing against the Albanian population of Kosovo. Even if, as Bosco, suggests, NATO was unwilling to furnish information to the prosecutor concerning its conduct, I would suggest that Del Ponte’s decision was a justifiable one. The case of RPF crimes allegedly committed in Rwanda is a more complex and unhappy one. As Bosco points out, the allegations of crimes committed against civilians were serious and merited the attention of the prosecutor. While they were not committed with genocidal intent, some of them appear to have reached the level of crimes against humanity.
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