Forum for International Criminal Justice Newsletter: September 2014 Welcome to the IAP’s Forum for International Criminal Justice (FICJ) September 2014 Newsletter which focuses on the prosecution of war crimes, crimes against humanity and genocide, including a roundup of video highlights, announcements and the major news developments from July. Please note that the items included in this publication do not automatically carry any endorsement from the IAP.

Some domestic legal news covered in this Newsletter include: the Dutch prosecution service is considering charges of war crimes, torture and genocide in their investigation into the Flight MH17 airplane crash case; Norway’s Oslo-based Borgarting Court of Appeal began hearing an appeal filed by Sadi Bugingo who was sentenced to 21 years for his role in the 1994 Rwandan Genocide; the El Salvador Government published a report addressing alleged war crimes committed during its Civil War (1980 - 1991); and The U.S. Border Patrol arrested a Rwandan citizen who is wanted for war crimes in Canada.

*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.

Danya Chaikel – FICJ Coordinator | email: [email protected] Video Highlights

Click here to watch the documentary Join the FICJ Through community: WWW.IAPClick here- toASSOCIATION.ORG/FICJ watch a short video by the/HOME the Lens of Nuremberg: The ICC at its 10th International Committee of the Red Cross on the1 Anniversary which examines the connection “RulesFollow of War us (inon a twitter: nutshell) @" iaprosecutorsin commemoration between the Nuremberg Trials and the of the 150th anniversary of the original Geneva International Criminal Court in Convention

8th Annual International Humanitarian Law Dialogs concludes in Chautauqua, New York The annual International Humanitarian Law Dialogs is a historic gathering of renowned international Prosecutors. This year the Prosecutors were joined by leading professionals in the field of International Criminal and Humanitarian Law. The Dialogs, held 24-26 August at the Robert H. Jackson Center in Chautauqua, New York, offered a look at the impact of modern international law on war crimes, crimes against Five international prosecutors are pictured on 26 August signing the declaration humanity, and genocide during the eighth annual International Humanitarian Law Dialogs: Hassan Jallow, Brenda Hollis, David M. Crane, Serge Brammertz, and Fatou Bensouda focusing on the theme, “The New World (Dis)Order: International Humanitarian Law in an Uncertain World.”

The event concluded with the signing of the Chautauqua Declaration with six distinguished prosecutors pledging their continued dedication to international peace and justice. They included: Fatou Bensouda, representing the International Criminal Court; Serge Brammertz, International Criminal Tribunal for the former Yugoslavia; David M. Crane, founding Chief Prosecutor of the Special Court for Sierra Leone; Brenda Hollis, former Prosecutor of the Special Court for Sierra Leone; Hassan Jallow, Prosecutor of the International Criminal Tribunal of Rwanda; and Nicholas Koumjian, who was co-prosecutor of the Extraordinary Chambers for the courts of Cambodia.

Justice Robert H. Jackson was the United States Chief Prosecutor of the Nazi war criminals at the International Military Tribunal in Nuremberg, Germany, during 1945-46. The Dialogs honour the legacy of Nuremberg as the first successful international effort to hold individuals criminally responsible for planning and waging aggressive war, committing war crimes and committing crimes against humanity.

See further details on the Robert H. Jackson Center website

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Fatou Bensouda: the truth about the ICC and Gaza Opinion piece printed in the Guardian on 29 August

Under the laws of the Hague court, my office can only investigate alleged war crimes in Palestine if it grants us jurisdiction in its territory. It has not done so. Has the international criminal court avoided opening an investigation into alleged war crimes in Gaza due to political pressure, as suggested in an article published in the Guardian earlier this week? The answer is an unequivocal “no”. As prosecutor of the ICC, I reject any suggestion of this in the strongest terms.

When an objective observer navigates clear of the hype surrounding this issue, the simple truth is that my office has never been in a position to open such an investigation due to lack of jurisdiction. We have always, clearly and publicly, stated the reasons why this is so.

The Rome statute, the ICC’s founding treaty, is open to participation by states. The prosecutor can only investigate and prosecute crimes committed on the territory or by the nationals of states that have joined the ICC statute or which have otherwise accepted the jurisdiction of the ICC through an ad hoc declaration to that effect pursuant to article 12-3 of the statute.

This means that the alleged crimes committed in Palestine are beyond the legal reach of the ICC, despite the arguments of some legal scholars that fundamental jurisdictional rules can be made subject to a liberal and selective interpretation of the Rome statute. They appear to advocate that as the object and purpose of the ICC is to end impunity for mass crimes, the court ought to intervene, even where clear jurisdictional parameters have not been met. This is neither good law nor does it make for responsible judicial action…

To read the full opinion piece click here

ICC Prosecutor, Fatou Bensouda, receives the Minister of Foreign Affairs of Palestine On 5 August 2014, the Prosecutor of the International criminal Court (ICC), Fatou Bensouda received H.E. Mr Riad al-Malki, the Foreign Minister of Palestine at the Seat of the Court in The Hague following a request by the Minister for a meeting. At the meeting, Minister al-Malki expressed serious concerns over the latest conflict in Gaza and requested clarifications on different mechanisms for a State to accept the ICC Prosecutor Fatou Bensouda meeting with jurisdiction of the ICC and generally regarding the legal H.E. Mr Riad al-Malki, the Foreign Minister of Palestine

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framework of the Rome Statute. The meeting focused on providing those clarifications. Palestine is not a State Party to the Rome Statute; neither has the Court received any official document from Palestine indicating acceptance of ICC jurisdiction or requesting the Prosecutor to open an investigation into any alleged crimes following the adoption of the General Assembly Resolution (67/19) on 29 November 2012, which accorded non-member observer State status to Palestine. Therefore, the ICC has no jurisdiction over alleged crimes committed on the territory of Palestine.

For further information, consult the Report on Preliminary Examinations Activities (2013) of the Office of the Prosecutor 10 things that happened at the International Criminal Court so far in 2014 (CICC)

1. In the ongoing trial of Kenyan Deputy President and broadcaster Joshua Sang judges have for the first time used their powers to summon witnesses to testify, requesting Kenyan government assistance in compelling eight previously cooperative prosecution witnesses to appear via video-link.

2. Witness issues have also dogged the trial of Kenyan President , which is due to begin this October. The original start date in February was postponed after several prosecution witnesses said they were no longer willing to testify. The Office of the Prosecutor is now trying to gain access to Kenyatta’s financial and phone records, which the prosecution believes may hold crucial evidence.

3. In the Court’s third judgment, Congolese militia leader was convicted crimes against humanity and war crimes during an attack on Bogoro village in the troubled eastern region of Democratic Republic of Congo (DRC) in 2003. Katanga was acquitted of charges of sexual slavery and rape as well as using child soldiers. He was later sentenced to 12 years of imprisonment, from which the almost seven years he has already spent in detention will be deducted.

4. Meanwhile, the case against another DRC militia leader was sent to trial. He faces 18 counts of war crimes and crimes against humanity in eastern DRC in 2002-2003, including using child soldiers, murder, persecution, attacks against civilians, pillaging and rape and sexual slavery.

5. After a lengthy legal battle, the highest Dutch court decided that three ICC witnesses who had sought asylum in the should be sent back to the Democratic Republic of Congo. The three had testified in defence of Congolese militia leaders Germain Katanga and .

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6. ICC judges referred the DRC to the UN Security Council and Assembly of States Parties for its failure to arrest and surrender Sudanese President Omar Al-Bashir during a visit in February. They subsequently invited Qatar and Ethiopia to arrest and surrender Al-Bashir—wanted for war crimes, crimes against humanity and genocide in Darfur—as his international travel continued unabated.

7. Narcisse Arido, a defence witness in the case against former DRC vice-president Jean Pierre-Bemba, appeared before ICC judges on charges of presenting false or forged evidence and bribing witnesses in the trial. Two of Bemba’s defence team, a DRC Member of Parliament and Bemba himself are charged with the same crimes.

8. It was announced that former Côte d’Ivoire president will face trial for crimes against humanity allegedly committed by forces under his control following the country’s disputed 2010 presidential elections. The leader of the Young Patriots militia supportive of Gbagbo, Charles Blé Goudé, was also transferred to the ICC. He is charged with similar crimes and is awaiting a hearing to decide whether his case should move to trial.

9. Appeals judges have confirmed that Libya can try Abdullah Al-Senussi, ’s former intelligence chief. However, they ruled that Saif-Gaddafi must be transferred to The Hague for trial as Libya had not proven that its national investigation covers the same case as the one before the ICC.

10. The ICC prosecutor opened preliminary examinations in the Central African Republic, Iraq and Ukraine to determine if full investigations are necessary. However, it closed its preliminary examination of South Korea after finding that North Korean attacks on South Korean military targets did not meet the threshold for an investigation.

investigate the killing of at least 1,150 protesters News August 2014 by Egyptian security forces at Rabaa al-Adawiya last year. And this week a U.N. human rights Click on the hyperlinked headlines to see the commission called for Syria’s regime to face justice full articles of international criminal justice news at the ICC… from July 2014

29 August El Salvador Government Publishes War Will Middle East governments ever face Crime report of its Civil War (teleSUR English) international justice? From 1980 until 1991, more than 75,000 people (Aljazeera English) were killed in El Salvador's Civil War. Now, the Palestinian Authority President Mahmoud Abbas is government has released the report entitled “From reportedly weighing a plan to hold Israel madness to hope: 12 years war on El Salvador”. It accountable for the latest Gaza war at the was prepared by a United Nations Truth International Criminal Court (ICC). Two weeks ago, Commission and was first released on March 15, Human Rights Watch called for the ICC to

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1993, but has only been recently released in El African Union (AU) member heads of states in Salvador… June. The protocol extends criminal jurisdiction to the African Court, and offers immunity to serving 27 August heads of states and all senior government officials Rwanda: Norwegian Court Begins Hearing during their term of office for serious crimes… Bugingo's Genocide Appeal (allAfrica) 26 August The Oslo-based Borgarting Court of Appeal on Organ trafficking prosecutor says his work was Tuesday started hearing an appeal filed by Sadi impartial Bugingo who was in February last year sentenced (B92) to 21 years in jail for his role in the 1994 Genocide A cloud of doubt surrounding the crimes in Kosovo against the Tutsi. Bugingo, who maintains he is will only be cleared after court proceedings are innocent, was found guilty in the massacres of complete, says John Clint Williamson. The U.S. Tutsi in the former Kibungo prefecture, now prosecutor headed an EU team that looked into Ngoma District, Eastern Province… the war crimes committed by the ethnic Albanian KLA against Serbs in Kosovo...The SITF prosecutor Syria and Isis committing war crimes, says UN underlined that his team comprised individuals (Guardian) from 20 different countries, in order to avoid any Report by United Nations commission says both manipulation, and that they were entirely impartial Damascus government and Islamist militant group in their work… should face trials at ICC. Syrian government forces have dropped barrel bombs on civilian areas, 25 August including some believed to contain the chemical UN Rights Council appoints final member on agent chlorine in eight incidents in April, and have panel to investigate purported Gaza violations committed other war crimes that should be (UN News Centre) prosecuted, they said in a 45-page report issued in The United Nations Human Rights Council Geneva on Wednesday… announced today the appointment of the last of three members of its probe to investigate Experts See Expanded Scope in Impending Khmer purported violations of international humanitarian Rouge Trial and human rights laws in the Occupied Palestinian (VOA News) Territory, including East Jerusalem, and particularly … The impending trial phase for Nuon Chea and in the Gaza Strip since the conflict began on 13 Khieu Samphan, officially known as Case 002/02, June… will deal with crimes such as genocide, forced marriage, internal party purges and others and will 22 August be expanded in scope compared to the first phase Proposed International Crimes Division Will Face of the trial, which dealt mostly with the forced Constitutional Challenges, Says Report exodus of Phnom Penh as the regime took over the (Open Society Justice Initiative) country in April 1975. The next phase of the trial A new report has recommended a review of the will fully get under way later this year… proposed jurisdiction of a yet-to-be-set-up International Crimes Division of the Kenyan High Civil Society Condemns Immunity for Sitting Court because it is too wide, and it has also African Leaders Accused of Serious Crimes recommended that more thought is needed on [] how it will be established. The report also (IPS News) concluded that proposals on how the International …civil society organisations (CSOs) in Africa as well Crimes Division will handle cases emanating from as international ones working on the continent, the violence that shook up Kenya after the have opposed the recently-adopted Protocol on December 2007 presidential election are bound to Amendments to the Protocol on the Statute of the face constitutional and other challenges if they are African Court of Justice and Human Rights by the not changed…

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20 August were killed in just 100 days. Preventing this Don't end Uhuru's ICC case - victims [Kenya] genocide was possible; it was our moral obligation. (the Star Op-Ed) And it’s a failure that has haunted me every day for Terminating the case against President Uhuru the last 20 years.”… Kenyatta, which gets underway in a month's time at The Hague, would be shameful and a betrayal of 17 August the victims of the deadly post- election violence of MH17: Netherlands wrestles with huge criminal 2008. Victims' lawyer Fergal Gaynor maintained case that the ICC has raised the expectations of (BBC) thousands of victims in Kenya and must now flex … "Never before have we had a murder case with its muscle to deal with deliberate obstruction of so many victims," said Wim de Bruin from the evidence by the Kenyan State… Dutch prosecution service, fielding press inquiries from all over the world. Passengers from 10 19 August different countries were on board Flight MH17… Expert Witness Says Kenyan Government Failed "Of course murder, but we also have the crime of to Protect Victims of Sexual Violence 'wrecking an airplane' and we could use (Open Society Justice Initiative) international criminal law - that would mean A landmark class action case against the Kenyan possible charges of war crimes, torture and government is unfolding in the Nairobi High Court. genocide."… Sexual violence survivors and Kenyan non- governmental organizations (NGOs) acting on 14 August behalf of all victims of sexual violence committed DR Congo war crimes trial of Egangela 'a test case in the aftermath of the 2007 Kenyan presidential of justice' election brought a case against the government (BBC) alleging numerous violations of the Kenyan The war crimes trial in the Democratic Republic of constitution for the government’s failures to Congo of an ex-army officer will be a test of protect them, to investigate and punish the military justice, the UN mission in the country says. perpetrators, and to provide reparations… Lt Col Bedi Mobuli Egangela is charged with crimes including murder, rape and torture allegedly 18 August committed between 2005-2006 in eastern DR Sri Lanka refuses entry to UN war crimes Congo. "He's a very symbolic case," the UN's Scott investigators Campbell told the BBC… (AFP) Sri Lanka will not grant visas to UN investigators 13 August probing war crimes allegedly committed during the ‘Barbaric’ sexual violence perpetrated by Islamic island's decades-long separatist conflict, President State militants in Iraq – UN Mahinda Rajapakse said Tuesday. Sri Lanka has (UN News Centre) refused to accept the authority of the UN Human Two senior United Nations officials today Rights Council, which voted in March to investigate condemned in the strongest terms the “barbaric allegations that the military killed 40,000 civilians acts” of sexual violence and “savage rapes” the in the final months of the separatist war in 2009… armed group Islamic State (IS) has perpetrated on minorities in areas under its control… I watched the Rwandan genocide unfold. We’re making the same mistakes in Iraq. 12 August (Washington Post) Egypt: Rab’a Killings Likely Crimes against Lt. Gen Roméo Dallaire is a recently retired Humanity Canadian senator, former UN Force Commander (Human Rights Watch) for the UN Assistance mission to Rwanda and The systematic and widespread killing of at least Founder of the Roméo Dallaire Child Soldiers 1,150 demonstrators by Egyptian security forces in Initiative: “Despite my efforts, 800,000 people July and August 2013 probably amounts to crimes

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against humanity, Human Rights Watch said today 7 August in a report based on a year-long investigation… Former Khmer Rouge Leaders Found Guilty of Crimes against Humanity 9 August (Open Society) Religious leaders say Isis persecution of Iraqi Today’s conviction for crimes against humanity of Christians has become genocide the two most senior surviving leaders of (the Guardian) Cambodia’s Khmer Rouge regime marks a historic Isis's persecution of Iraqi Christians, which has milestone both for international justice, and for already forced tens of thousands of men, women Cambodia’s effort to confront its violent past… and children to flee for their lives, is fast becoming a genocide, religious leaders have warned. 6 August Archbishop Athanasius Toma Dawod of the Syriac Jean Léonard Teganya, alleged war criminal, Orthodox church said that Isis's capture of arrested near Canada-U.S. border Qaraqosh, Iraq's largest Christian city, had marked The U.S. Border Patrol says it arrested a 42-year- a turning point for Christians in the country. old Rwandan citizen near the border with Canada who is wanted for war crimes. A Canadian warrant 8 August says Jean Léonard Teganya is wanted for Russia arrests Ukrainian officers for 'war crimes' deportation for violating human rights under the (BBC) Crimes Against Humanity and War Crimes Act Investigators in Russia have announced the arrest related to the Rwandan genocide in the 1990s… of five Ukrainian army officers for alleged war crimes as fighting rages in eastern Ukraine… UN International Law Commission to Elaborate New Global Convention on Crimes 9 August Against Humanity War crimes in Kosovo: A country awaits (InLawGrrls) (Economist) The work of the Crimes Against Humanity THIS is Kosovo’s holiday-and-wedding season, but Initiative, launched by Professor Leila Sadat, the some in the small Balkan state don’t feel much like Henry H. Oberschelp Professor at Washington celebrating this year. On July 29th Clint Williamson, University School of Law, achieved an important an American prosecutor leading a special European milestone when the United Nations International Union task-force investigating war crimes, came Law Commission voted on July 18, 2014 to add the out with a damning report… drafting of a treaty on crimes against humanity to its active agenda…

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