Forum for International Criminal Justice Newsletter: April 2015 Welcome to the IAP’s Forum for International Criminal Justice (FICJ) April 2015 Newsletter which focuses on the prosecution of war crimes, crimes against humanity and genocide, including a roundup of video highlights, publications,events 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: Poland court clears soldiers of Afghanistan war crimes; Bosnia's war crimes court marks 10th anniversary with more than 450 prosecutions; US- Trained Iraqi Forces Investigated for war crimes; Sri Lanka president Sirisena pledges war crimes inquiry; and German prosecutors are investigating members of the Syrian government for crimes against humanity.

*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 the International Click here to watch an Aol video clip on Criminal Court’s (ICC) welcoming Join the FICJ community: WWW.IAPSerbian-ASSOCIATION.ORG/FICJ Prosecutors’ first arrests/HOME of suspects ceremony to the State of Palestine which of the Srebrenica massacre, “a milestone in1 became the 123rd State Party to the Followhealing us the on woundstwitter: of @iaprosecutors Europe's worst Rome Statute, the ICC’s founding treaty. civilian slaughter since World War II.”

New Book: Sovereignty and Justice: Balancing the Principle of Complementarity Between International and Domestic War Crimes Tribunals, by Dr Mark Ellis Mark Ellis is Executive Director of the International Bar Association (IBA). Dr Ellis served as Legal Advisor to the Independent International Commission on Kosovo, and was appointed by the OSCE to advise on the creation of Serbia's War Crimes Court and acted as legal advisor to the defense team at the Cambodian War Crimes Court (ECCC). He was actively involved with the Iraqi High Tribunal, and is a member of the Disciplinary Advisory Panel to the Defense Counsel for the ICTY and ICTR.

The drafters of the ICC's founding document, the Rome Statute, foresaw what would become the main challenge to the Court's legitimacy: that it could violate national sovereignty. To address this concern, the drafters added the principle of complementarity to the ICC's jurisdiction, in that the Court's province merely complements the exercise of jurisdiction by the domestic courts of the Statute's member states. The ICC honours the authority of those states to conduct their own trials. This book asserts that the principle of complementarity, both dynamic and powerful, is the key legal underpinning for domestic jurisdiction of international crimes, and has been the impetus for the rise of a new trend toward domestic war crimes prosecutions. However, if the principle of complementarity is to be applied, states must ensure that their own judicial systems and trials are consistent with international standards of independence and fairness. At a minimum, states will have to adhere to standards of due process found in international human rights instruments. In addition, for complementarity to work, the ICC must be willing to actively support, embrace, and implement the principle. If the Court holds on too tightly to a self-aggrandising view of its role in promoting international justice, then it will lose all credibility in the eyes of nation states. Finally, the international community, in calling on states to address war crimes committed within their borders, must provide some of the financial, technical, and professional resources that many struggling states need in this endeavour. This book sets forth several innovative recommendations to fulfil these goals in order to strengthen and unify the principle of complementarity between the ICC and nation states so as to make future domestic war crimes courts work more effectively.

Read more on ordering Sovereignty and Justice and receiving a 20% discount

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Commentary

The Rules Have Not Changed Regarding Armed Conflict Originally published: 30 March 2015, JURIST, by Professor David M. Crane of Syracuse University College of Law and former Chief Prosecutor, Special Court for Sierra Leone 2002-2005.

Shortly after three planes went into three buildings on September 11, 2001 the chief law enforcement officer of the US, Attorney General Albert Gonzalez declared that the Geneva conventions were quite out dated. This amazing and naïve statement followed a similar declaration by then President George W. Bush that the "rules have changed" related to fighting terrorists. These statements set off a series of policy missteps that led to Guantanamo, Abu Ghraib, Bagram AFB, secret prisons in Eastern Europe and North Africa and the perceived loss of the moral high-ground by the US related to conflict in the 21st century.

No longer that "bright and shining city on the hill" the US continues to limp into the new century not as a leader regarding the international Professor David M. Crane rule of law, but only as a participant in a series of kaleidoscopic events that seem to challenge the very foundation of the rule of law, particularly the laws of armed conflict. At no time is the rule of law more needed than now in this apparent "age of extremes". Do the rules really need to be changed?

A recent trial shows those rules do not need to be changed, just followed. Four Polish soldiers were found not to have committed war crimes in an incident in 2007 where civilians were killed. Poland had been part of the NATO led coalition in Afghanistan for 12 years. A military court found that they did not intentionally target civilians, a war crime if proven. The military judges did find them negligent in following orders, a dereliction of duty type offense in the US military. The press seemed to take this as some type of failed judgement. I consider it an affirmation that the laws of armed conflict are alive, vibrant and being used in the way contemplated by the drafters and followed for over 60 years by nations involved in conflict situations.

The laws of armed conflict state that no civilians can be intentionally targeted. The law recognizes that in the heat of combat there are collateral effects to the battle to include civilian deaths excusable in law. Additionally the laws of armed conflict require that all signatories to the Geneva Conventions, when faced with allegations of a war crime investigate, prosecute (under their

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domestic system of justice) or hand the alleged perpetrators over to a party to the conventions willing to prosecute for the war crime.

The Poles appear to have followed not only the spirit but the letter of the law. They investigated the civilian deaths and charged the four soldiers with war crimes under Polish domestic law. The outcome was decided in a fair and open trial. The fact that it was not proven that they intentionally targeted those civilians was up to the trier of fact in that domestic prosecution. Hence the outcome as reported.

This shows that the rules are working and they do not have to be changed. The NATO coalition followed the laws of armed conflict. The coalition does investigate and hand over perpetrators to member domestic systems for resolution. Though not perfect, the record does show that coalition forces do hold accountable members of their armed forces who violate the laws of armed conflict in trials and courts-martial.

A further review of the record shows that in combat the coalition followed the law despite the fact that the Taliban and various terrorist groups ignored the law in almost all instances to include the intentional killing of civilians. This is another important tenant of the laws of armed conflict that despite the fact that the other side ignores the law signatories are bound to follow the laws of armed conflict.

It is not intended for this opinion to gloss over and ignore other acts committed by the coalition, particularly the US, as it related to torture and other inhumane acts. These too violate the rule of law at many levels. As noted before, the statements made by the Bush administration led the US down a very slippery slope to where they were operating at the same level as the Taliban and others operating in the extreme related to torture.

In this apparent age of extremes we should continue to fight extremism using the rule of law, such as the laws of armed conflict and a system of laws that are practical and flexible enough to ensure that the battlefield is governed by rules that protect and regulate a given condition—war and conflict. The laws of armed conflict minimize the horror and allow for a return to possible stability at its conclusion. As stated by Albert Einstein decades ago: As long as there are sovereign nations possessing great power, war is inevitable.

Read the full commentary on the Jurist website

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Advanced Course on International Criminal Law Special Focus: Gender Justice, 24 August – 4 September 2015

Offered by The Hague Academy of International Law in cooperation with the Grotius Centre for International Legal Studies of Leiden University and with the kind support of the Ministry of Foreign Affairs of the Netherlands

The course, to be given for the first time, provides in-depth understanding, discussion and training in theory and practice of International Criminal Law. The session focuses on Gender Justice, with a particular emphasis on a critical evaluation of persistent challenges and emerging responses to sexual and gender-based violence. General and specialized themes are broached by distinguished experts in the field and supplemented by exercises. The course is targeted towards practitioners seeking to enlarge their vision or discover a new area of practice.

Confirmed speakers:

Ms. Fatou Bensouda, Prosecutor of the International Criminal Court Dr. Serge Brammertz, Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia Prof. M. Cherif Bassiouni, President of the International Institute of Higher Studies in Criminal Sciences Judge Theodor Meron, President of the International Criminal Tribunal for former Yugoslavia and President of the Mechanism for International Criminal Tribunals Brigid Inder, Special Adviser on Gender to the Prosecutor of the International Criminal Court Patricia Sellers, Special Adviser on International Criminal Law Prosecution Strategies to the Prosecutor of the International Criminal Court Dr. Kelly Askin, Senior Legal Officer for International Justice in the Open Society Justice Initiative Prof. William Schabas, Professor of Human Rights Law and International Criminal Law at Leiden University Prof. Kai Ambos, Professor of Criminal Law at the University of Gottingen Prof. Guenael Mettraux, Professor of International Criminal Law and Defence Counsel at the Special Tribunal for Lebanon Dr. Chris Dolan, Director of the Refugee Law Project, Håkan Friman, Deputy-Director General in the Swedish Ministry of Justice Vedrana Mladina, Associate Victims Expert in the Office of the Prosecutor at the ICC Niamh Hayes, Head of Office at the Institute for International Criminal Investigations Maxine Marcus, Senior International Criminal Law and Gender Expert Michelle Jarvis, Principal Legal Counsel at the International Criminal Tribunal for the former Yugoslavia Prof. Larissa van den Herik, Professor of Public International Law at Leiden University Paul Seils, Vice President and General Counsel, International Center for Transitional Justice Joseph Powderly, Assistant Professor in International Law, Leiden University Dr. Rod Rastan, Legal Adviser in the Office of the Prosecutor of the International Criminal Court

Read more about the new Advanced Course on International Criminal Law on The Hague Academy of International Law website

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that would make it a war crime to kill journalists or News March 2015 take them hostage. Gary Pruitt said a new framework is needed to protect journalists as they Click on the hyperlinked headlines to see the cover conflicts in which they are increasingly seen full articles of international criminal justice news as targets by extremist groups… from March 2015.

28 March 31 March Swiss want International Criminal Court Dilemma for Israel as Palestinians join war crimes intervention court (swissinfo) (Reuters) Switzerland has appealed to the UN Security The Palestinian Authority becomes the 123rd Council on Friday to prosecute war crimes in Iraq member of the International Criminal Court on under the International Criminal Court (ICC). It also Wednesday, a major step that could move its reiterated its support for a similar ICC intervention decades-long conflict with Israel into a courtroom. in Syria. At a high-level debate in New York on Israel is opposed to the court, is not a member and victims of ethnic or religious attacks in the Middle has no plans to cooperate with investigators East, Swiss deputy permanent representative to already looking into possible crimes by both sides the UN Olivier Zehnder, called on the Security during fighting. It was furious when the Council to give the ICC the mandate to investigate Palestinians announced their application on Dec. the situation in Iraq… 31 and tried to undermine it by lobbying to cut funding to the court… 25 March

Ex-Liberia President Charles Taylor to stay in UK prosecutor in al-Shabab bomb case shot prison dead (BBC) (BBC) Ex-Liberian President Charles Taylor has been Joan Kagezi, the top Ugandan state prosecutor in ordered to serve the rest of his jail term in the UK, the trial of 13 men accused of a deadly al-Shabab after losing a request to be transferred to Rwanda. bomb attack, has been shot dead in . He had argued that he was being denied his rights Ms Kagezi was targeted on her way home by to a family life, because his wife and children had motorbike gunmen, officials say…Ms Kagezi, the not been granted UK visas… senior principal state attorney, headed the directorate of public prosecution's anti-terrorism The ICC and crimes of sexual and gender-based and war crimes division… violence (SGBV)

(Justice Hub) 30 March Over the past two decades, the international ICTY revokes Vojislav Seselj's provisional release community has witnessed progressive (Deutsche Welle) developments regarding the judicial investigation Judges at the International Criminal Tribunal for and prosecution of crimes of sexual and gender- the former Yugoslavia (ICTY) on Monday granted based violence (SGBV). Generally, discussions on an appeal by the prosecution and revoked the the topic suggest or assume that sexual (and provisional release of Seselj, which it had issued gender-based) violence is something which mostly last November, and ordered him to return to the or exclusively concerns women and girls. Only United Nations Detention Unit in The Hague recently, the issue of SGBV against men and boys immediately… has begun to be recognised. The Rome Statute of the International Criminal Court (ICC), for example, AP President: Killing of Journalists Should Be a does not restrict SGBV to women and girls only… War Crime (ABC News) The president and CEO of The called on Monday for changes to international laws

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20 March Technology for Truth: The Next Generation of Poland court clears soldiers of Afghanistan war Evidence crimes (OSJI) (Jurist) The law is a living construct; it develops in synch A military court in Warsaw on Thursday cleared with society, bringing new challenges and new four Polish soldiers of war crimes violations in opportunities into the courtroom. Currently, the Afghanistan. The trial began in February 2009. The largest growth area for the law in general is soldiers were prosecuted for violating provisions of undoubtedly the result of the ongoing evolution of the Geneva Conventions, which provide protection digital technology. In one specific field, that of for civilian villages that pose no threat to soldiers, evidence gathering, the unique characteristics of while stationed in Afghanistan… international criminal law mean that the International Criminal Court (ICC) may be the Challenges of Holding Ntaganda’s Trial in Congo leading forum for testing the greatest advances in (OSJI) the use of technology for truth-seeking purposes… The need for the International Criminal Court (ICC) to bring justice closer to victims of the crimes it 17 March tries has prompted the court’s judges to suggest German prosecutors say investigating members of that the June 2015 opening of Bosco Ntaganda’s Syrian government trial takes place in the town of Bunia in eastern (Reuters) Democratic Republic of Congo (DRC). However, Germany is investigating members of the Syrian while this would fulfil a long-held aspiration by the government under President Bashar al-Assad on court, several factors may affect whether the suspicion of committing crimes against humanity, suggestion will become reality… the country's top federal prosecutor said on Tuesday… 19 March ICC should prosecute Islamic State for Iraq U.N. Investigators Sharing Syria War Crimes genocide, war crimes – U.N. Findings With European Authorities (euronews) (New York Times) The United Nations said on Thursday Islamic State U.N. investigators have begun sharing details from forces may have committed genocide in trying to their secret database on suspected war crimes in wipe out the Yazidi minority in Iraq as well as war Syria with European authorities pursuing domestic crimes against civilians including children. In a court cases, they said on Tuesday. The move could report based on interviews with more than 100 pave the way for perpetrators of killings, torture alleged victims and witnesses, the U.N. Human and atrocities on all sides to be brought to Rights Office urged the U.N. Security Council to account. The aim is to sidestep the U.N. Security refer the issue to the International Criminal Court Council, where Russia and China have prevented (ICC) to prosecute perpetrators, including foreign abuse cases being sent to the International members of the ultra-radical insurgent group… Criminal Court (ICC) for prosecution…

18 March 16 March Serbia arrests seven over 1995 Srebrenica Stops Funding for War Crimes massacre Prosecutions (BBC) (Justice Report) Serbian police have arrested seven men accused of The European Union delegation to Bosnia and taking part in the slaughter of over 1,000 Muslims Herzegovina has refused to pay the second at a warehouse on the outskirts of Srebrenica. The instalment of funding for war crimes prosecutions seven are among the first to be arrested by Serbia for 2015, pending the adoption of the Justice for carrying out the Srebrenica massacre in July Sector Reform Strategy… 1995, Serbian and Bosnian prosecutors say…

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Sierra Leone war crimes court grants provisional (BBC) release to convict Sri Lanka hopes to set up a domestic inquiry within (Jurist) a month into atrocities from the civil war, The Residual Special Court for Sierra Leone has President Maithripala Sirisena has told the BBC. He granted provisional release to Moinina Fofana, a said UN investigators would not take part in the former militia leader convicted of war crimes. inquiry, but their views would be taken into Fofana was convicted in 2007 of murder, cruel account. Mr Sirisena's predecessor Mahinda treatment, pillage and collective punishment for Rajapaksa consistently refused any co-operation his role in Sierra Leone's civil war and sentenced to with the UN. The army and Tamil Tiger rebels were a 15-year term… both accused of atrocities in the 26-year war, which ended in 2009… 13 March An all female ICC presidency 11 March (CICC) 'Dirty Brigades': US-Trained Iraqi Forces This week, Judge Silvia Fernández de Gurmendi of Investigated for War Crimes Argentina was elected ICC president, the first (ABC News) woman to ever hold the position. Judges Joyce U.S.-trained and armed Iraqi military units, the key Aluoch of Kenya and Kuniko Ozaki of Japan were to the American strategy against ISIS, are under elected first and second vice president… investigation for committing some of the same atrocities as the terror group, American and Iraqi 12 March officials told ABC News. Some Iraqi units have Recent Swiss and Belgian arrests of Liberian war already been cut off from U.S. assistance over crimes suspects refuel impunity debate in Liberia "credible" human rights violations, according to a (Hirondelle) senior military official on the Pentagon's Joint Recent arrests of two Liberian war crimes suspects Staff… in Belgium and Switzerland are historic, says a lawyer defending victims. They have also reignited 10 March debate in Liberia over justice for the victims of that The ICC and the Situation in Honduras country’s civil war. “These arrests are historic for (Huffington Post) several reasons,” says Alain Werner, who The preliminary examination of the situation in represents victims in the Swiss case of former Honduras - State Party to the ICC since 1 July 2002- militia leader Alieu Kosiah and is also head of the began on 18 November 2010 and focused mainly Geneva-based NGO Civitas Maxima, which helped on events that occurred since the coup d'etat of get National Patriotic Front of Liberia (NPFL) ex- 2009… commander Martina Johnson arrested in Belgium…

Sudan says not scared of global court, dismisses 9 March U.N. move Bosnia's war crimes court marks 10th anniversary, (Reuters) more than 450 prosecutions Sudan said on Thursday it was not scared of the (AP) International Criminal Court (ICC) and dismissed Bosnia's war crimes court has marked a decade the tribunal's move to report it to the U.N. Security since its establishment with a public pledge to Council as a sign of failure. The ICC said on Monday continue hunting down and prosecuting people that Sudan had failed to cooperate in its war suspected of crimes during the country's 1992-95 crimes investigation of President Omar Hassan al- war. Since its inception, the court has prosecuted Bashir and it would ask the Security Council to take 453 people accused of genocide, torture, rape and unspecified measures in response… other war crimes, securing convictions in more than 80 percent of cases, it said in a statement Sri Lanka president Sirisena pledges war crimes issued on Monday's anniversary… inquiry

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UNSC: Darfur's Referral Turns 10 Years Two New Suspects Charged by Cambodia’s Khmer (Huffington Post) Rouge Tribunal On 31 March 2005, and for the first time in history, (iLawyer) the United Nations Security Council (UNSC) On 3 March, the International Co-Investigating adopted Resolution 1593, which referred the Judge Mark Harmon of the UN-backed situation in Darfur, Sudan to the ICC. According to Extraordinary Chambers in the Courts of Cambodia the text of the Resolution, the situation in Darfur (ECCC) charged two former Khmer Rouge members constituted "a threat to international peace and with several crimes committed during the security." 10 years after the adoption of the Democratic Kampuchea regime. The suspects in Resolution, the situation has not improved and both cases, known as Cases 003 and 004, have continues to be quite catastrophic: grave crimes been charged in absentia. Both suspects are continue to happen in Darfur on a daily basis and thought to be among those most responsible for just a few weeks ago, Human Rights Watch Khmer Rouge atrocities committed between 17 announced it had documented the mass rape of April 1975 and 6 January 1979… 200 women in Tabit… ICC Appeals Chamber amends the Trial Chamber’s 8 March order for reparations to victims We have many considerations to make before Today, 3 March 2015, the Appeals Chamber of the investigating UPDF - ICC chief International Criminal Court (ICC) delivered, in () open court, its judgment on the appeals against …The ICC says it is cognisant of the numerous calls the Trial Chamber's "decision establishing the to flash light into the UPDF closet during fighting principles and procedures to be applied to with the Lord’s Resistance Army (LRA) in northern reparations" in the case against Thomas Lubanga Uganda. The fighting left at least 100,000 people Dyilo. The Appeals Chamber amended the Trial dead, displaced close to two million people and Chamber's order for reparations and instructed the more than 20,000 children abducted still Trust Fund for Victims (TFV) to present a draft unaccounted for according to the UN. ICC chief implementation plan for collective reparations to prosecutor Fatou Bensouda, who wrapped up her the newly constituted Trial Chamber I no later than visit to Uganda on Monday as part of preparation six months from the issuance of today's for the trial of Dominic Ongwen, however, judgment… admitted that while calls to probe Uganda’s military are legitimate, it would depend on a ICTY: Prosecution seeks Hadzic trial continuation number of considerations the court has to make… despite illness (inserbia) In the motion filed to the Trial Chamber, the 5 March Prosecutor’s Office said that the Chamber has the 5 indicted for 1993 Balkan war massacre discretion to order the further presentation of (Jurist) evidence by the defense team, even if the Serbian war crimes prosecutors said Tuesday that defendant is not able to attend. The motion reads five people have been charged with committing a that the continuation and completion of the wartime massacre during the Balkan conflict of the process is in the interest of justice and that Hadzic 1990s, with 10 more still under investigation in can follow the trial through a video-link from the Bosnia. The massacre occurred in 1993, when the detention unit, adding that the process can also be five allegedly abducted 20 people from a train in continued in his absence, in the event of illness. eastern Bosnia and robbed and killed them. The Hadzic’s trial was suspended last year during the group targeted only non-Serbs in their attack. The presentation of the defense, after which he was prosecutor's office called the indictment "the first diagnosed with cancer… step in reaching truth and justice for the victims and their families."… Two New Suspects Charged by Cambodia’s Khmer Rouge Tribunal 3 March (iLawyer)

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On 3 March, the International Co-Investigating Waking up to the scourge of war-time Judge Mark Harmon of the UN-backed sexual violence Extraordinary Chambers in the Courts of Cambodia (CICC) (ECCC) charged two former Khmer Rouge members The international community is slowly waking up with several crimes committed during the to the importance of prosecuting perpetrators in Democratic Kampuchea regime. The suspects in ending the global scourge of wartime sexual both cases, known as Cases 003 and 004, have violence. Yet much work remains to be done. been charged in absentia. Both suspects are Conflict-related sexual and gender-based violence thought to be among those most responsible for (SGBV) is a widespread weapon of war—seen in Khmer Rouge atrocities committed between 17 conflicts in the Central African Republic, the April 1975 and 6 January 1979… Democratic Republic of Congo, Mali, Darfur and Syria, to name but a few. It is used to terrorize, to 2 March degrade, to punish communities and to ethnically Kosovo authorities prepare files to create Special “cleanse.” Women and girls are predominantly the Court victims; but men and boys are also targeted and (inserbia) suffer. Survivors are often marginalized and This court will work on crimes committed by the stigmatized, with little hope of seeing their ethnic Albanian former paramilitary organisation attackers brought to justice… called the Kosovo Liberation Army (KLA) and claims made in a report by Council of Europe rapporteur 1 March Dick Marty concerning killings and organ trafficking US moves to deport 150 Bosnians over war crimes that involved Serbs kidnapped during the conflict (BBC) in Kosovo. “A team of experts from Kosovo US officials want to deport 150 Bosnian immigrants institutions is working with the EU to harmonise who they believe to be involved in war crimes the legislation related to the Special Court, the during the 1992-95 war, the New York Times court’s statute and amendments to the reports. The paper says 300 people are suspected Constitution that are required for the laws and of having concealed wartime activities when they statute to be adopted,” Mustafa told the portal came to the US. As many as half are said to have Gazetaekspres… had a part in the Srebrenica massacre, where 8,000 Bosnian Muslims died… Uganda: MPs Want ICC to Probe UPDF (allAfrica) Guest Post: The Mirage of Hybrid Justice in Lawmakers from northern and eastern Uganda Africa? have urged the International Criminal Court to also (Opinio Juris) investigate atrocities allegedly committed by the Although international criminal law is increasingly Ugandan army during the LRA conflict, The assimilated with the International Criminal Court Observer has learnt. At least 10 MPs from Acholi, (ICC), hybrid justice remains surprisingly common Lango, West Nile, and Teso sub-regions told ICC thirteen years after the establishment of the prosecutor Fatou Bensouda on Friday that landmark Special Court for Sierra Leone. Last although LRA leader Joseph Kony was the main month a UN-mandated International Commission aggressor, he was not the only one: some of Inquiry made headlines when it recommended a government agencies and state agents may have hybrid tribunal for the Central African Republic committed ugly atrocities too… (CAR)..

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