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Human Rights Brief

Volume 14 | Issue 1 Article 8

2006 Updates from the International Criminal Courts Elizabeth J. Rushing American University Washington College of Law

Nick Leddy American University Washington College of Law

Anne Heindel American University Washington College of Law

Angela Edman American University Washington College of Law

Bjorn Sorenson American University Washington College of Law

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Recommended Citation Rushing, Elizabeth J., Nick Leddy, Anne Heindel, Angela Edman, and Bjorn Sorenson. "Updates from the International Criminal Courts." Human Rights Brief 14, no. 1 (2006): 38-43.

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UPDATES FROM THE INTERNATIONAL CRIMINAL COURTS

International Criminal Tribunal The month of July brought with it two new of Ecole Sous-Officiers (ESO), a military acad- for the Former Yugoslavia trials for the ICTY. In Popovic, et al., seven sen- emy in Butare, southern Rwanda. Soldiers On September 27, 2006, tribunal judges ior Bosnian Serb military and police officers under Muvunyi’s command attacked between at the International Criminal Tribunal for the will face charges of genocide and various crimes 800 and 5,000 Tutsi refugees in the Mukura Former Yugoslavia (ICTY) sentenced against humanity for acts committed in Forest in April 1994. The court held that Momailo Krajisnik to 27 years imprisonment. Srebrenica. In Milutinovic, et al. the Tribunal Muvunyi failed to use his authority to prevent Krajisnik, a former Bosnian-Serb leader, was will try six former high-level political and mil- his soldiers from participating in the genocide. itary leaders of Serbia and the Federal Republic convicted of persecutions, murder, extermina- Finally, former education minister André of Yugoslavia (FRY), charged with alleged tion, deportation, and forced transfer of non- Rwamakuba was unanimously acquitted on crimes committed in Kosovo during 1999. Serb civilians. After establishing the existence September 20, 2006, and immediately of a joint criminal enterprise intended to released. Rwamakuba had been charged with reduce the proportion of Bosnian Muslims International Criminal conspiracy to commit genocide, incitement of and Bosnian Croats, the judges found that Tribunal for Rwanda or complicity to commit genocide, as well as Krajisnik’s role in the crimes was “crucial” The International Criminal Tribunal for several , serious viola- because of his senior position. The Trial Rwanda (ICTR) Appeals Chamber delivered tions of Common Article 3 to the Geneva Chamber acquitted Krajisnik of genocide, a landmark decision on June 16, 2006, in the Conventions, and violations of Additional complicity in genocide, and one count of case of Prosecutor v. Karemera, Ngirumpatse Protocol II. The Chamber found that testi- murder as a violation of the laws or customs and Nzirorera. The opinion recognized that mony demonstrated that Rwamakuba was not of war, noting that he did not have the specif- genocide occurred in Rwanda during the peri- present at the time and location of the alleged ic intent necessary for genocide. od of April 6 to July 17, 1994 — holding that events. Additionally, some of the prosecution’s On May 3, 2006, the ICTY Appeals the genocide is now a matter of “common evidence was based on hearsay; hence, the Chamber affirmed the sentences for Mladen knowledge.” This opinion has now indis- prosecution did not meet its burden to prove Nalelitic (“Tuta”), and Vinko Martinovic putably established Rwanda’s genocide in the the charges beyond a reasonable doubt. ICTR’s jurisprudence. The Karemera decision (“Stela”). Naletilic was found guilty on eight In a related development, on September is significant because it removes the require- counts of crimes against humanity and war 18, 2006, the ICTR accepted the resignation ment of proving genocide in every case, crimes and Martinovic was found guilty on of Callixte Gakwaya, a defence attorney at the silencing the rejectionist camp. The decision nine counts of crimes against humanity. The ICTR accused of having participated in the will have a significant impact on future defen- judges dismissed most of the appeals pertain- genocide. Previously, Rwanda had shown dants accused of genocide by eliminating the ing to issues of due process, evidence, and concern over Gakawaya’s involvement in the perpetual relitigation of the established histor- crimes involved in the trial of the two Bosnian ICTR, and threatened to cease cooperation ical fact of Rwanda’s genocide. Croats. The Chamber found that, given the with the court unless he was fired. Gakwaya is particular circumstances of the case and the On September 12, 2006, Trial Chamber I listed as one of 12 genocide suspects defendants’ degree of participation, the sen- acquitted Jean Mpambara, former mayor of employed at the ICTR. According to the tences of 20 and 18 years’ imprisonment were the Rukara commune in Rwanda. Mpambara ICTR, only two of these suspects are still reasonable. Both men had served as military was accused of planning, directing and facili- employed and they are both currently under commanders in the Mostar region of Croatia tating attacks against Tutsi civilians. The investigation. between April 1993 and January 1994. Chamber held that the prosecution failed to On June 30, 2006, the ICTY Trial prove the charges beyond a reasonable doubt. Sylvestre Gacumbitsi v. Chamber sentenced Naser Oric, former sen- In acquitting Mpambara, Judge Jai Ram The Prosecutor, ior commander of Bosnian Muslim forces, to Reddy said that the evidence establishing his Case No. ICTR-2001-64-A instigation and assistance in the attacks was two years’ imprisonment. Oric was convicted On July 6, 2006, the Appeals Chamber of not credible. Further, the Chamber held that for failing to exercise command responsibility the International Criminal Tribunal for on occasion Mpambara’s inaction was due to to prevent the murder and cruel treatment of Rwanda (ICTR) delivered its judgment in the a lack of resources for an effective defense numerous Serb prisoners in the former UN case of Sylvestre Gacumbitsi v. Prosecutor. From against the attackers. Residents of the former “safe area.” ICTY judges described the condi- 1983 through 1994 Sylvestre Gacumbitsi Rukara commune have expressed disappoint- tions in and around Srebrenica, Oric’s served as the highest-ranking local administra- ment over the acquittal. perimeter of command, at the time of the tive official, or bourgmestre, of Rusumo crimes in 1992 and 1993 as more abysmal In another ruling the same week, the ICTR Commune. On June 17, 2004, ICTR Trial than any other case before the Tribunal. The sentenced Tharcisse Muvunyi to 25 years for Chamber III found Gacumbitsi guilty of geno- judges convicted Oric because he had reason to genocide, direct and public incitement to com- cide and the crimes of humanity of extermina- know about the murders and cruel treatment mit genocide, and rape as a crime against tion and rape due to his role in organizing and but failed to take “necessary and reasonable humanity. Muvunyi was a former commander executing a campaign against the Tutsi popula- measures” to prevent their occurrence. Published by Digital Commons @ American University Washington College38 of Law, 2006 1 Human Rights Brief, Vol. 14, Iss. 1 [2006], Art. 8 tion in Rusumo Commune in April 1994. The material facts must be pleaded, the ity, and that they were subsequently killed. Gacumbitsi received a thirty-year sentence. evidence need not. When an indict- The language of the indictment was suffi- ment alleges genocide, proof of any one ciently clear for the Appeals Chamber to find Both Gacumbitsi and the Prosecutor killing is not a material fact as it would that the accused had ample timely notice of appealed the conviction. The Appeals be in the case of murder; it is evidence this charge. The Appeals Chamber therefore Chamber dismissed all of Gacumbitsi’s of a material fact, namely that the entered a new conviction for aiding and abet- grounds of appeal. It granted the Prosecutor’s intent of the accused was the destruc- ting the crime against humanity of murder. appeal in part, finding Gacumbitsi guilty of tion of a group, as a group. aiding and abetting the murder (as a crime In contrast, Judges Liu and Meron wrote against humanity) of two of his female Tutsi Prosecutor’s Appeal: Rape As a separately to argue that the Chamber had Crime Against Humanity tenants. Additionally, while the Trial been too lenient in finding that a “vague The Trial Chamber convicted Gacumbitsi Chamber held that Gacumbitsi’s authority for chart-entry summarizing the anticipated testi- for eight counts of rape. However, it acquitted ordering the crimes committed in Nyarubuye mony of one witness” cured the indictment. Parish on April 15, 16, and 17 and in him on three additional counts after finding Kigarama on April 14 was limited to the com- Notably, the Appeals Chamber deter- insufficient evidence to demonstrate that munal police, the Appeals Chamber found mined that even if the killing of Murefu was Gacumbitsi had instigated the crimes. The that it also extended to several other groups of set aside, the Trial Chamber’s conclusion that Prosecutor argued that the Trial Chamber attackers. Based on these additional findings, Gacumbitsi “committed” genocide would still “erred in law by requiring it to establish that the Appeals Chamber quashed the Trial be valid. This decision was based on witness the Appellant’s instigation was a condition sin Chamber’s thirty-year sentence and imposed a allegations that Gacumbitsi arrived at a qua non of the commission of the rapes” and new life sentence. church in Nyarubuye Parish with a pick-up that it should have convicted Gacumbitsi on truck full of machetes, ordered the Hutus to this basis, or in the alternative, for his Article Gacumbitsi’s Appeal: separate from the Tutsis, and instructed the 6(3) superior responsibility for the perpetrators. “Committing” Genocide Hutus and Interahamwe: “Get machetes! Start killing and surround the church so no one The Appeals Chamber found that the The Trial Chamber convicted Gacumbitsi escapes.” From these facts, the Appeals Trial Chamber had applied the correct legal of planning, instigating, ordering, commit- Chamber concluded that Gacumbitsi “direct- standard, noting that to convict someone of ting, and aiding and abetting the crime of ed” and “played a leading role in conducting instigation it is sufficient for the Prosecution genocide pursuant to Article 6(1) of the and especially, supervising” the Nyarubuye to demonstrate that “the instigation was a fac- Statute of the ICTR. In claiming that his con- massacre and that Gacumbitsi’s act of separat- tor substantially contributing to the conduct viction for “committing” genocide was based ing the crowd was as much an integral part of of another person committing the crime,” and in errors of both law and fact, Gacumbitsi the genocide as were the killings that it that “it is not necessary to prove the crime argued, inter alia, that the indictment did not enabled. The Appeals Chamber thus deter- would not have been perpetrated without the allege his personal participation in the killing mined that Gacumbitsi’s conviction was involvement of the accused.” Moreover, of Murefu, a Tutsi refugee, with sufficient appropriately characterized to include his despite the Trial Chamber’s findings that specificity. Because the indictment merely “commission” of genocide. To this end, the Gacumbitsi drove around Nyarubuye Parish alleged as a general matter that Gacumbitsi Appeals Chamber held that in the context of with a megaphone inciting Hutu men to rape was responsible for killing “members of the genocide, “direct and physical perpetration” and kill Tutsis and that a victim claimed one Tutsi population,” the Appeals Chamber need not mean physical killing — other acts, of her rapists told her Gacumbitsi had ordered found that Gacumbitsi could not have reason- such as directing or supervising killings, can the rape of Tutsi females, the Appeals ably known on this basis alone that he was constitute the actus reus of the crime. Chamber held that the Prosecution did not being charged with killing Murefu. prove the presence of a nexus between the Nevertheless, the Appeals Chamber found instigation and the rapes beyond a reasonable that a witness statement disclosed before trial Prosecutor’s Appeal: Murder As a doubt. In making this determination, the provided “timely, clear, and consistent infor- Crime Against Humanity Appeals Chamber cited a lack of credible wit- mation” about the time, place, and manner of The Prosecutor appealed Gacumbitsi’s ness testimony and a lack of evidence that the killing and thus, sufficiently cured the acquittal for the murder as a crime against Gacumbitsi’s words substantially contributed defective indictment. humanity of Marie and Beatrice, two of his the three rapes, noting in particular that the Tutsi tenants. The Prosecutor advanced the Prosecutor did not establish the perpetrators’ Presiding Judge Shahabuddeen wrote sep- theory that Gacumbitsi aided and abetted awareness of Gacumbitsi’s inciting statements. arately to argue that the Appeals Chamber their murder, a mode of responsibility not imposed “too formulaic” pleading require- considered by the Trial Chamber. The Appeals Nevertheless, the Appeals Chamber agreed ments on the Prosecution and should not Chamber found that the Trial Chamber with the Prosecutor that the Trial Chamber have found the indictment defective with entered sufficient findings of fact to support a had a duty to consider in the alternative respect to the killing of Murefu because the conviction under this theory of liability, whether Gacumbitsi had Article 6(3) superior crime of genocide does not require the plead- including that Gacumbitsi expelled the responsibility for these rapes. The Trial ing of every individual killing. Judge women from his home in the context of the Chamber did not make any formal legal find- Shahabudeen stressed the distinction between genocidal campaign in which he was involved, ing on this question, stating that it did not enquire whether material facts necessary to establish an offense that he knew expelling them under these cir- “deem it necessary to [Gacumbitsi] is equally responsible pursuant and the evidence offered to prove those facts, cumstances would expose them to the risk of to Article 6(3) … given the similarity of the remarking that: being attacked on the grounds of their ethnic- http://digitalcommons.wcl.american.edu/hrbrief/vol14/iss1/8 39 2 Rushing et al.: Updates from the International Criminal Courts acts charged and the lack [of] evidence of a Prosecutor’s Appeal: civilians. For example, the Trial Chamber superior-subordinate relationship between the Joint Criminal Enterprise found that in Nyarubuye parish on April 16, Accused and the perpetrators of the rapes.” The Prosecution also argued Gacumbitsi 1994, Gacumbitsi “directed” an attack during After looking at the relevant evidence, the should have been found responsible for his which a group of assailants killed survivors Appeals Chamber agreed with the Trial crimes under the theory of joint criminal and looted the parish building. According to Chamber that the Prosecution failed to offer enterprise (JCE). The Appeals Chamber dis- the Appeals Chamber, these findings proved sufficiently specific facts demonstrating agreed, citing the ICTY appeal judgment in Gacumbitsi’s authority over all the attackers Gacumbitsi’s effective control over the perpe- Kvocka and holding that the Prosecutor’s fail- in question and that his orders had a substan- trators of the rapes in question, and therefore ure to plead the category of JCE alleged and tial and direct effect on the commission of denied the Prosecution’s appeal on this count. the supporting material facts in the indictment those crimes. It consequently upheld this sub- ground of the Prosecutor’s appeal. The Prosecution also sought general clari- constituted a defect that neither the fication on the elements of rape as a crime Prosecutor’s pre-trial brief nor its opening against humanity. The Prosecution argued statement cured. In a separate opinion, Judge Prosecutor’s Appeal: Sentencing that in such a context, non-consent of the vic- Shahabuddeen argued that the Prosecutor had The Prosecution alleged that the Trial tim and the perpetrator’s knowledge of that provided the requisite notice. In his view, Chamber erred in failing to impose a sentence non-consent should not be considered ele- although the words “joint criminal enterprise” reflecting the gravity of the crimes and ments of the offense to be proved, but rather were not used in the indictment, the use of Gacumbitsi’s degree of criminal culpability. that consent should be considered an affirma- terms such as “acting in concert with others” in While the Appeals Chamber held that the tive defense. The Prosecutor reasoned that pursuit of a “common purpose” meaningfully Trial Chamber properly stated the relevant when prosecuted at the ICTR, rape will informed Gacumbitsi of the JCE charge and sentencing principles, it argued that those always take place in the context of genocide, enabled him to prepare an effective defense. principles were applied incorrectly. The crimes against humanity, or war crimes. There Appeals Chamber noted that “Gacumbitsi should therefore be no need to prove the Prosecutor’s Appeal: played a central role in planning, instigating, absence of consent, as is the case with other Authority for Ordering ordering, committing, and aiding and abet- crimes in the statute such as torture. The In its judgment, the Trial Chamber found ting genocide and extermination in his com- Appeals Chamber reiterated the definition of that Gacumbitsi ordered the crimes commit- mune of Rusumo, where thousands of Tutsis the rape as a crime against humanity provided ted by the communal policemen in his com- were killed or seriously harmed.” Citing by the ICTY Appeals Chamber in the mune, but that he did not have the authority Gacumbitsi’s instigation of particularly sadis- Kunarac et al. judgment, and found that it to order the crimes committed there by the tic rapes, the absence of significant mitigating established non-consent and knowledge there- conseillers, gendarmes, soldiers, and circumstances, and its findings on appeal, the of as elements that the Prosecution must prove Interahamwe. The Prosecution appealed this Appeals Chamber quashed Gacumbitsi’s thir- beyond a reasonable doubt. However, to prove finding, alleging both an error of fact and an ty-year prison sentence and imposed a life the element of non-consent, the Prosecution error of law. The Appeals Chamber found sentence in its place. need not provide evidence of the victim’s that the Trial Chamber correctly defined words or conduct, or evidence of force, but “ordering” to take place when someone in a International need only demonstrate the existence of coer- position of authority instructs another to Criminal Court cive circumstances under which meaningful commit an offense. Moreover, “[n]o formal consent is not possible, i.e., the existence of a superior-subordinate relationship between the The Prosecutor v. Thomas Lubang genocidal campaign or a situation of deten- accused and the perpetrator is required. It is Dyilo, Case No. ICC-01/04-01/06 tion. Further, the Prosecution can establish sufficient that there is proof of some position The International Criminal Court’s (ICC) knowledge of non-consent by proving the of authority on the part of the accused that first trial entered the pre-trial phase, but accused was aware, or had reason to be aware, would compel another to commit a crime in is encountering some difficulty. Chief of the coercive circumstances that undermined following the accused’s order.” Prosecutor Luis Moreno-Ocampo brought the possibility of genuine consent. Although it upheld the Trial Chamber’s charges against Thomas Lubanga Dyilo of the To rebut an allegation of non-consent, the citation of the relevant law, the Appeals Democratic Republic of the Congo (DRC) accused may enter evidence that the victim Chamber found error with the Trial for crimes committed in his capacity as consented, but such evidence is inadmissible Chamber’s characterization of the relevant founder and leader of the Union of Congolese pursuant to Rule 96(ii) if the victim “has been facts. Specifically, it recalled the Trial Patriots (UPC) and its military wing, the subjected to or threatened with or has reason Chamber’s finding that as bourgmestre, Patriotic Forces for the Liberation of the to fear violence, duress, detention, or psycho- Gacumbitsi was the “highest authority and Congo (FPLC). The ICC investigation com- logical oppression,” or “reasonably believed most influential person on the commune, menced in June 2004, two months after the that if [one] did not submit, another might be with the power to take legal measures binding DRC government referred the situation to the so subjected, threatened, or put in fear.” all residents.” The Appeals Chamber then Court. Early in 2005 the government arrested Moreover, the Trial Chamber is free to disre- pointed to four consecutive days in April of Lubanga on charges of genocide, crimes gard evidence of consent if it concludes that 1994 where the Trial Chamber found that against humanity, and war crimes. In March consent cannot be given voluntarily under the Gacumbitsi “instructed,” “ordered,” or 2006 the ICC issued an arrest warrant charg- circumstances. “directed” groups of assailants — not just the ing Lubanga with the war crimes of enlisting, communal policemen — to attack many Tutsi conscripting, and using children to partici-

Published by Digital Commons @ American University Washington College40 of Law, 2006 3 Human Rights Brief, Vol. 14, Iss. 1 [2006], Art. 8 pate in active hostilities. The DRC govern- ethnic group, represented by Floribert Njabu’s also conflict with the traditions of non-Acholi ment immediately transferred Lubanga to Front for National Integration forces, spread groups similarly affected by the conflict. ICC custody in the Hague. Several days later, and became integrated into the larger region- The Prosecutor’s recent report states that, he appeared before Pre-Trial Chamber I for al conflict, and thus has many parties. Since contrary to some media reports, Ugandan initial proceedings. the Office of the Prosecutor (OTP) suspend- President Yoweri Museveni has not requested ed its investigation in the DRC due to securi- The confirmation hearing, in which the that the Court withdraw its arrest warrants. ty threats, Lubanga is the only individual that Pre-Trial Chamber seeks to confirm whether The Ugandan government reportedly submit- has been charged. there is sufficient evidence for the Prosecutor ted a confidential letter to the Registry con- to conduct a trial, was originally scheduled for firming its commitment to cooperate with the June 2006. The Court postponed the hearings Update on the Uganda Situation Court, and expressing its desire to conduct until September due to escalating violence in A year after the ICC unsealed its first peace talks in a manner compatible with its Ituri, the site of Lubanga’s alleged crimes. The arrest warrants, there have still been no arrests obligations as a State Party. As stated in the Prosecutor delayed full disclosure of evidence in Uganda. The Prosecutor, in his most recent report, the Prosecutor aims to continue inves- to the defense, due partially to the escalating report on Uganda, identified executing arrest tigations in a manner that will not disrupt the violence and in the interest of protecting vic- warrants as one of the central challenges fac- peace negotiations. tims and witnesses. In September the defense ing the Court. In September, Pre-Trial team requested more time to analyze the Chamber II requested that the Prosecutor Update on Darfur recently disclosed evidence and prepare a rele- submit a report on the status of arrests in On June 14, 2006, pursuant to Resolution vant defense. The Prosecutor requested a time Uganda, and the court reviewed the report in 1593, Prosecutor Moreno-Ocampo presented extension as well. The Court subsequently early October. One of the most significant his third report to the UN Security Council. announced that the confirmation hearing setbacks occurred in July 2006, when Joseph He highlighted developments in the OTP’s would take place on November 9, 2006. Kony, indicted leader of the Lord’s Resistance ongoing investigation of the situation in Army (LRA), initiated peace talks with the The Court reached an impasse in June Darfur. Since the investigation commenced in government of Uganda. Kony proposed an when the Prosecutor announced that, due to June 2005, the OTP has conducted over 50 end to hostilities in exchange for amnesty to the violence in Ituri, he would temporarily missions in 15 countries, interviewed hun- all LRA combatants. The government granted stop the investigation. Thus, the charging dreds of witnesses, and reviewed thousands of his request and signed the Cessation of document only accuses Lubanga of enlist- documents. Hostilities Agreement with the LRA on ment, conscription, and use of child soldiers; August 26. The amnesties have raised the The ongoing violence has made it the Prosecutor decided that he would not add question whether, in the interest of peace, the extremely difficult to collect information or amend other charges. While the conscrip- ICC should withdraw the arrest warrants. while ensuring the safety of victims, witness- tion and recruitment of child soldiers in many This is particularly relevant because Kony has es, and ICC staff. Sudanese President Omar ways facilitated these crimes, the fact remains refused to appear in public to advance the al-Bashir has also stated that the ICC cannot that in the past six years, 60,000 people have peace talks unless the ICC drops all charges conduct investigations inside Sudan. Due to been slaughtered in Ituri alone (according to against the LRA. these concerns, the Prosecutor has not con- United Nations estimates). The UPC/FPLC ducted investigations in Sudan, instead rely- and other parties to the conflict committed NGOs have campaigned on both sides of ing on witnesses and information located out- mass murder, rape, and torture, crimes not the issue in a debate commentators have side of Sudan. Critics suggest that this conces- addressed in Lubanga’s charges. According to termed “Peace vs. Justice.” Proponents of an sion to the Government of Sudan compro- the most recent Report on Prosecutorial ICC withdrawal point to the merits of the tra- mised the Court’s neutrality, as the govern- Strategy, in the interest of expediency, the ditional Acholi justice mechanism, which ment is a party to the conflict and is therefore Prosecutor may have decided to select a limit- involves public ceremonies of confession and subject to ICC investigation. The question ed number of incidents for the arrest war- forgiveness, because it affords victims person- also remains whether an effective investiga- rants; however, he has also committed to alized truth and reconciliation. Many fear that tion is possible without entering the area in ensuring that those incidents will reflect the if the ICC moves forward with the arrests, the which the atrocities took place. gravity of the accused’s crimes. Many non- LRA will abandon the peace talks and resume governmental organizations (NGOs) contend the violence. Groups advocating for the ICC The Prosecutor’s report also addressed the that by excluding grave crimes such as sexual to continue its investigation (including the willingness and ability of the Special Criminal violence, rape, willful killings, and summary ICC itself) invoke international law, which Court on the Events in Darfur to prosecute executions, the Court is sending the message disallows amnesties for the grave crimes under crimes in Darfur and provide justice to the that perpetrators of those crimes will go investigation. In the past, exchanging amnesty victims. The Government of Sudan estab- unpunished. Impunity for gender crimes is for peace agreements has not been successful. lished the Special Court soon after the considered especially troublesome. For example, the amnesty of Sierra Leone Security Council referred the situation to the rebel leader Foday Sankoh backfired and ICC. Critics claim the Special Court is a con- The Prosecutor also faces increasing pres- plunged the parties into deeper conflict. trivance designed to forestall ICC prosecu- sure to issue arrest warrants for members of Furthermore, States Parties to the ICC (of tions. In February and June 2006, the OTP other parties to the conflict. The conflict which Uganda is one) are not permitted to visited Khartoum to assess the Special Court between the Hema ethnic group, represented renege on their referral of a situation to the proceedings in order to determine admissibil- by Lubanga’s FPLC forces, and the Lendu ICC. Traditional Acholi justice mechanisms ity of possible cases before the ICC. The OTP http://digitalcommons.wcl.american.edu/hrbrief/vol14/iss1/8 41 4 Rushing et al.: Updates from the International Criminal Courts found evidence that the Special Court was not resentation; and assessing candidates’ ability to internal regulations, and a Judicial willing or able to investigate or prosecute operate in a modern court environment. By Administration Committee to deal with issues crimes against humanity or war crimes, which position, those appointed are: relating to the administration of the are the focus of the ICC’s investigations. Extraordinary Chambers, including the infra- Trial Chamber judges: Mr. Nil Nonn structure of the Chambers, protocol concerns, To date the Special Court has only con- (), Mr. Thou Mony and physical and human resource needs. ducted thirteen trials. The cases involved low- (Cambodia), Mr. Ya Sokhan ranking offenders who committed minor (Cambodia), Ms. Silvia Cartwright The Extraordinary Chambers officially offenses such as theft. The court has not (New Zealand), and Mr. Jean-Marc began its operations on July 10, when Lavergne (France). The reserve judges addressed war crimes and crimes against Cambodian co-prosecutor Chea Leang and in the Trial Chamber are Mr. You humanity committed by Janjaweed, govern- Ottara (Cambodia) and Ms. Claudia international co-prosecutor Robert Petit ment, and rebel forces. NGOs report that the Fenz (Austria). (Canada) commenced their formal investiga- Special Court grants immunity to members of tion into crimes falling within the Chamber’s military and police forces, and does not recog- Supreme Court Chamber judges: H.E. jurisdiction. These include: genocide, crimes nize the doctrine of command responsibility, Kong Srim (Cambodia), Mr. Som against humanity, grave breaches of the Sereyvuth (Cambodia), Mr. Sin Rith making prosecution of high-ranking officials Geneva Conventions, destruction of cultural (Cambodia), Mr. Ya Narin unlikely. Victims, particularly those subjected (Cambodia), Mr. Motoo Noguchi property, crimes against internationally pro- to sexual violence, cannot complain for fear of (Japan) Ms. Agnieszka Klonowiecka- tected persons, and various domestic crimes further harassment. Based on the Special Milart (Poland), and Mr. Chandra under the 1956 Cambodian Penal Code. On Court’s limited caseload, the Prosecutor Nihal Jayasinghe (Sri Lanka). The September 4, the two co-investigating judges, believes the cases under investigation are reserve judges in the Supreme Court Marcel LeMonde (France) and You Bun Leng admissible to the Court. Chamber are Mr. Mong Monichariya (Cambodia), started their work in Phnom (Cambodia) and Mr. Martin Karopkin Penh. They are tasked with questioning sus- The Prosecutor has identified several spe- (USA). pects and victims, hearing witness testimony, cific cases for investigation and possible pros- and collecting evidence. Principle Defender ecution, but has not yet prepared arrest war- Co-investigating judges: Mr. You Bun Rupert Skilbeck (United Kingdom) has nego- rants. The delay indicates an ongoing effort to Leng (Cambodia), Marcel Lemonde (France). The reserve co-investigating tiated an informal agreement with identify individuals with the greatest responsi- judges are Mr. Thong Ol (Cambodia) Cambodian stakeholders that would allow bility for the crimes, identified by factors such and an international judge (to be international defense counsel to fully partici- as the scale, nature, and impact of the crimes. announced). pate in all proceedings related to the represen- The Prosecutor’s task is complicated by the tation of accused, although the methods to ongoing violence and the lack of cooperation Co-prosecutors: Ms. Chea Leang ensure that this occurs are subject to further from the Government of Sudan, whose con- (Cambodia) and Mr. Robert Petit (Canada). Reserve co-prosecutors are negotiation. Skilbeck will begin his work in tinued intransigence promises to further delay H.E. Chuon Sun Leng (Cambodia) October 2006. investigation of crimes and ultimately prevent and Mr. Paul Coffey (USA). the apprehension of perpetrators. While the Extraordinary Chambers is mak- Pre-Trial Chamber judges: H.E. Prak ing rapid progress in its efforts to become fully Kimsan (Cambodia), H.E. Ney Thol Extraordinary Chambers in the operational, many concerns have yet to be (Cambodia), Mr. Hout Vuthy addressed. A memorandum dated October 4, Courts of Cambodia (Cambodia), Mr. Rowan Downing from the Open Society Justice Initiative to the (Australia), and Ms. Katinka Lahuis Judges and Prosecutors Appointed (Netherlands). The reserve judge in Group of Interested States (GIS) — a coalition of nations assisting the Extraordinary On May 7, 2006, by Royal Decree the Pre-Trial Chamber is Mr. Pen Chambers — highlighted several outstanding NS/RKT/0506/214, King Norodom Pichsaly (Cambodia). issues. These included: supplementing the Sihamoni appointed 17 national and 12 inter- The Cambodian and international judges annual budget, adopting clear rules of proce- national judges and prosecutors to serve on and prosecutors were sworn in during a cere- dure, fostering judicial leadership and coopera- the Extraordinary Chambers in the Courts of mony at Phnom Penh's Silver Pagoda in the tion, strengthening investigative independence Cambodia for the Prosecution of Crimes royal palace on July 3. Trial chamber judge and capacity, and enhancing the Extraordinary Committed during the Period of Democratic Sylvia Cartwright and reserve co-prosecutor Chambers’ outreach and victim support. Kampuchea (Extraordinary Chambers). The Paul Coffey were reportedly unable to attend Cambodian Supreme Council of the the event. Reserve judges Claudia Fenz and Magistracy had previously selected the Martin Karopkin will only take an oath if Defendant Indicted for appointees on May 4, 2006. The government they are called into duty from reserve status. War Crimes Dies stated that the Supreme Council of the On July 21, 2006, Ung Chheun, also Magistracy had followed proper guidelines for During a week-long workshop in July, the known as Ta Mok, died at the age of 80. Ta selecting candidates using mandatory criteria judges agreed to adopt internal regulations to Mok was a notorious military commander of in the Establishment Law. These include: supplement Cambodian procedure, to guide the commonly known as “the evaluating language ability and inter-cultural the work of the Chambers, and to ensure butcher.” He had been in military detention sensitivity; seeking a balance between candi- compliance with international standards of since March 1999, when the government of dates’ experience and formal education; tak- due process and justice. The judges also estab- Cambodia indicted him for crimes against ing into consideration gender and ethnic rep- lished a Rules Committee to draft proposed domestic security and genocide. Since then,

Published by Digital Commons @ American University Washington College42 of Law, 2006 5 Human Rights Brief, Vol. 14, Iss. 1 [2006], Art. 8 the government renewed his detention order On September 13 Chief Prosecutor On November 5, 2006, Judge Rauf Abdel each year in apparent anticipation of his pros- Munqith al-Faroon accused Chief Judge Rahman sentenced Saddam Hussein to death ecution in the Extraordinary Chambers. Abdullah al-Amiri of bias in the proceedings by hanging for crimes against humanity. and called for him to step down after al-Amiri Though Hussein and his co-defendants will The Iraqi High Criminal Court stated that Hussein was “not a dictator.” Al- be permitted to appeal the convictions, the (Formerly the Iraqi Special Faroon had previously made this request on appeals are unlikely to be successful. HRB Tribunal) grounds that al-Amiri was biased towards the defense. Acting on Al-Faroon’s petition, on The trial of Saddam Hussein and six oth- Elizabeth J. Rushing, a J.D. candidate at the September 19 the cabinet of the Prime Washington College of Law, covers the ICTY and ers charged with genocide continued after a Minister asked the court to remove al-Amiri ICTR for the Human Rights Brief. three week break between August 23 and as Chief Judge. Judge Mohammad al-Khalifa, September 11. The Iraqi High Criminal Nick Leddy, a J.D. candidate at the Washington who previously served as Deputy Chief Judge College of Law, wrote the Sylvestre Gacumbitsi v. The Court previously heard testimony from sur- of the court, was selected as al-Amiri’s replace- Prosecutor summary for the Human Rights Brief. vivors of the “Anfal Campaign” against Iraqi ment. Saddam Hussein, however, refused to Kurds. Witnesses testified that over 180,000 Anne Heindel, Assistant Director of the War Crimes recognize al-Khalifa’s authority as Chief Kurds died in chemical and other attacks Research Office at the Washington College of Law, Judge, resulting in Hussein’s ejection from the edited the Sylvestre Gacumbitsi v. The Prosecutor against the Kurdish population in 1987. court. Hussein’s defense counsel then walked summary for the Human Rights Brief Hussein and seven others have already been out in protest and vowed not to return until tried for the killing of 148 Kurds in Dujail in Angela Edman, a J.D. candidate at the Washington the government stopped “interfering” in the 1982. A verdict on the Dujail segment of the College of Law, covers the International Criminal trial. A previous Chief Judge, Rizgar Court for the Human Rights Brief. trial, originally due in October 2006, was Muhammad Amin, resigned last January, deferred to allow defense lawyers to submit Bjorn Sorenson, a J.D. candidate at the Washington also citing government interference as a written documents and for the court to review College of Law, covers international criminal issues main frustration. for the Human Rights Brief. additional evidence.

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