Human Rights Brief

Volume 17 | Issue 2 Article 8

2010 Updates from the International and Internationalized Criminal Courts Shahroo Yazdani American University Washington College of Law

Christopher Valvardi American University Washington College of Law

Aileen Thomson American University Washington College of Law

Laticia Sanchez American University Washington College of Law

Amanda Chace American University Washington College of Law

See next page for additional authors

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Recommended Citation Yazdani, Shahroo, Christopher Valvardi, Aileen Thomson, Laticia Sanchez, Amanda Chace, Paul Rinefierd, and Rebecca Williams. "Updates from the International and Internationalized Criminal Courts and Tribunals." Human Rights Brief 17, no.2 (2010) 53-59.

This Column is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Human Rights Brief by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. Authors Shahroo Yazdani, Christopher Valvardi, Aileen Thomson, Laticia Sanchez, Amanda Chace, Paul Rinefierd, and Rebecca Williams

This column is available in Human Rights Brief: http://digitalcommons.wcl.american.edu/hrbrief/vol17/iss2/8 Yazdani et al.: Updates from the International and Internationalized Criminal Cou

updates from international and internationalized criminal courts & tribunals

International Criminal Tribunal was insufficient evidence to indict him and liament and as prefect of two different for Rwanda ordered his immediate release. regions. He traveled to Canada to study in 1989 and returned to Rwanda in 1993 to As expected, the two acquittals have work in business. “Mr. Zed,” as he became Victims Critique the ICTR angered many in the survivor community, known, remained influential in Rwandan sparking protests from individuals as well In the fourteen years since the Inter- politics vis-à-vis the marriage of his sister, as survivor organizations. The protestors, national Criminal Tribunal for Rwanda Agathe Kanzig, to President Habyarimana, who gathered in front of the ICTR docu- (ICTR) was established, it has made a num- whose apparent assassination was the mentation center three days after Nsen- ber of decisions that have angered survi- immediate catalyst for the mass killing of gimana’s release, criticized the ICTR and vors of the Rwandan genocide. As may be Tutsis and moderate Hutus between April called the acquittals “malpractices.” Oth- expected, many of these disappointments and July 1994. Zigiranyirazo’s Decem- ers, such as Jean de Dieu Mucyo, the have been the direct result of acquittal ber 2008 convictions by the ICTR Trial Executive Secretary of the National Com- judgments handed down in genocide cases. Chamber stemmed from three incidents mission for the Fight against Genocide in two separate locations, which resulted This fragile relationship has become (CNLG), have attributed the acquittals to in the deaths of between 810 and 1,520 more strained in recent months due to the laxity of ICTR prosecutors. The CNLG persons. First, the Trial Chamber found the ICTR Appeals Chamber’s shocking and other similar organizations are of great that he traveled to a Tutsi refugee gathering move to acquit Protais Zigiranyirazo on value to the ICTR because they provide on Kesho Hill, where he gave a speech to November 16, 2009 (see judgment sum- survivor witnesses to assist the prosecu- a group of officials, civilians, and Intera- mary below). Zigiranyirazo, the brother-in- tion. However, the recent judgments have hamwe soldiers just prior to the killing of law of the late Rwandan president Juvénal caused many such groups to threaten to between 800 and 1,500 of the refugees. Habyarimana, was originally charged with discontinue providing such services, which Zigiranyirazo’s involvement at Kesho Hill participating in a joint criminal enterprise would significantly hinder the prosecution. resulted in convictions on separate counts to kill Tutsis at Kesho Hill, as well as aid- With pressure from survivor groups of genocide and extermination as a crime ing and abetting genocide in relation to the mounting, the ICTR is now in a delicate against humanity, earning him two concur- killing of Tutsis at a roadblock in Kiyovu. position. The decisions it makes in the rent twenty-year sentences. The prosecu- In 2008, Trial Chamber III found Zigirany- coming months may have the power to tion also presented evidence at trial that irazo guilty and sentenced him to twenty considerably alter the ICTR’s future. Zigiranyirazo twice traveled to a roadblock years of imprisonment on one count and at Kiyovu, near Kigali, where he aided and fifteen on the other count. In its recent Shahroo Yazdani, a J.D. candidate at the abetted acts of genocide by offering fire- decision, the Appeals Chamber reversed Washington College of Law, wrote this arms and providing instructions to soldiers the Trial Chamber’s judgment after find- column on the International Criminal Tri- there. Between ten and twenty people were ing factual and legal errors in the lower bunal for Rwanda for the Human Rights killed at the roadblock. The Trial Chamber chamber’s assessment of Zigiranyirazo’s Brief. convicted him on one count of aiding and alibi. According to the Appeals Chamber, abetting genocide and handed down a third the prosecution was unable to show beyond Protais Zigiranyirazo v. The concurrent sentence of fifteen years. In a reasonable doubt that Zigiranyirazo was Prosecutor, Case No. ICTR-01- relation to both incidents, the Trial Cham- involved in the alleged killings and the 73-A ber dismissed the alibi evidence raised by Trial Chamber erred by shifting the burden the accused. of proof to the accused. On November 16, 2009, the Appeals Chamber of the ICTR reversed the convic- On appeal, Zigiranyirazo challenged, The unexpected move was followed by tions of Protais Zigiranyirazo for com- inter alia, the Trial Chamber’s evaluation another on November 17, 2009, when the mitting genocide and extermination as of alibi evidence presented by the Defense ICTR decided to acquit Father Hormis- a crime against humanity in relation to in relation to both the events at Kesho Hill das Nsengimana. Nsengimana, a Catholic events occurring at Kesho Hill in Gisenyi and the Kiyovu Roadblock. In addressing priest who was arrested in 2002 was origi- Prefecture, as well as his conviction for this challenge, the Appeals Chamber began nally thought to have been at the center of aiding and abetting genocide in relation to with a general discussion of the burden a group of Hutu extremists that carried out events occurring at the Kiyovu Roadblock. of proof in the assessment of alibis. Spe- attacks in Nyanza in 1994. He has been The judgment marks the first time that the cifically, the Appeals Chamber explained accused of both direct and indirect killings, Appeals Chamber has entirely acquitted that an accused does not bear the burden and among his alleged victims are a Tutsi and released an ICTR convict. of proving an alibi beyond a reasonable priest and a judge. After a thorough exami- doubt, but must simply produce evidence nation of all the charges brought against Prior to the events of 1994, Mr. Zigi- that he was not present at the time of the Nsengimana, Trial Chamber I found there ranyirazo spent twenty years in Rwandan alleged crime; or, alternatively, he must politics, serving as a Member of Par-

Published by Digital Commons @ American University Washington College53 of Law, 2010 1 Human Rights Brief, Vol. 17, Iss. 2 [2010], Art. 8 present evidence likely to raise a reason- Second, the Appeals Chamber found that he had been held since shortly after his able doubt as to whether he was present. the lower court erred in failing to provide arrest in Belgium in 2001. In the words of the Appeals Chamber, “[i]f a “reasoned opinion” in relation to the fea- Christopher Valvardi, a J.D. candidate at the alibi is reasonably possibly true, it must sibility of travel between Kesho Hill and the Washington College of Law, wrote the be accepted,” and the Prosecution must Kanombe, which was an issue of “crucial judgment summary of Protais Zigiranyirazo then establish beyond reasonable doubt importance.” Finally, the Appeals Cham- v. The Prosecutor. Susana SáCouto, Direc- that, “despite the alibi, the facts alleged ber determined that the Trial Chamber tor of the War Crimes Research Office, and are nevertheless true.” In order to deter- committed error by improperly dismiss- Katherine Anne Cleary, Assistant Director mine whether the Trial Chamber improp- ing certain key alibi evidence offered by of the War Crimes Research Office, edited erly shifted the burden in a given case, the the Defense. Taken together, the Appeals this summary for the Human Rights Brief. Appeals Chamber held that it must look Chamber found that the lower court’s for language suggesting, inter alia, that reversal of the burden of proof, failure to the Trial Chamber required the accused provide a reasoned opinion on an issue The Prosecutor v. Tharcisse to “negate” the prosecution’s argument, to critical to the Defense’s case, and mistreat- Renzaho, Case No. ICTR-97-31-A “exonerate” himself, or to “refute the pos- ment of key evidence invalidated Zigirany- On July 14, 2009, Trial Chamber I of sibility” that he could have been present irazo’s convictions in relation to the events the ICTR found Tharcisse Renzaho guilty when the crime was committed. at Kesho Hill. of genocide, murder as a crime against The Appeals Chamber then turned to Turning to Zigiranyirazo’s conviction humanity, rape as a crime against human- the alleged errors relating to the Defense’s for the events at the Kiyovu Roadblock, ity, murder as a violation of Common alibi evidence in regards to Kesho Hill. As the Appeals Chamber found that the Trial Article 3 to the Geneva Conventions, and stated above, the Trial Chamber found that Chamber committed the same three errors rape as a violation of Common Article 3 Zigiranyirazo was present at Kesho Hill that it had committed in relation to the to the Geneva Conventions. Renzaho was at some time during the morning of April Kesho Hill convictions. First, the Appeals sentenced to life imprisonment. 8, 1994 and that he addressed a group of Chamber again found evidence that the During the genocide in Rwanda in 1994, assailants just before the group launched lower court had shifted the burden of proof, Tharcisse Renzaho was both the prefect an attack on Tutsis taking refuge at the site. citing language from the Trial Chamber’s of Kigali-Ville prefecture and a colonel in At trial, the Defense presented testimony judgment suggesting that Zigiranyirazo the Rwandan army. As prefect, Renzaho from nine witnesses who placed Zigirany- was required to “exclude the possibility” was responsible for “peace and security in irazo at the presidential residence at Camp of his responsibility for the crime, rather Kigali-Ville.” Furthermore, following the Kanombe just outside Kigali at various than merely cast a reasonable doubt on death of Rwandan President Habyarimana times throughout the day of April 8, 1994. the Prosecutor’s case. Second, the Appeals on April 7, 1994, Renzaho was appointed The Defense also entered evidence regard- Chamber found that the Trial Chamber to a “crisis committee” established by ing the distance between Kanombe and failed to consider, or at least failed to pro- the senior military command of the army. Kesho Hill to establish that it would have vide a reasoned opinion regarding, travel Renzaho left Rwanda in early July 1994 been impossible for Zigiranyirazo to be in times between the roadblock and Rubaya, and was arrested in September 2002 in the both places within the relevant time frame where Zigiranyirazo spent his nights dur- Democratic Republic of Congo. at issue. In reviewing the Defense’s alibi ing the relevant period of time. Lastly, evidence and the Trial Chamber’s treatment the Trial Chamber failed to consider “the At trial, the Prosecution put forward of that evidence, the Appeals Chamber evidence as a whole as well as the relevant evidence of a wide array of activities it found three errors. First, although the Trial circumstantial evidence” when evaluating believed supported its charges against Ren- Chamber correctly stated in its judgment the Defense’s alibi evidence, leading the zaho, although the Trial Chamber dismissed that the Prosecution bore the burden of Appeals Chamber to conclude that the several of the allegations. For instance, the proof, the Appeals Chamber found that the lower court had misconstrued key facts Prosecution alleged that, because Ren- lower court’s approach to the alibi evidence in the case. Again, the Appeals Chamber zaho recruited and trained the Interahamwe “indicate[d] that it placed a greater eviden- found that, taken together, these errors militia between mid-1993 and July 1994, tiary burden on Zigiranyirazo to establish invalidated Zigiranyirazo’s conviction. the accused bore responsibility for the kill- an alibi than required . . . .” For instance, ings and serious bodily and mental harm Given the reversals of Zigiranyirazo’s the Trial Chamber stated that the alibi caused by the Interahamwe between April three convictions, the Appeals Chamber evidence was “inconclusive,” that it “[did] 6 and July 17, 1994. However, while the did not address the Defense’s fifteen other not contradict [Prosecution evidence],” and Trial Chamber found evidence to support grounds for appeal or the Prosecutor’s that it “[did] not provide . . . an alibi.” In the claim that Renzaho encouraged cer- appeal for an extended sentence. Notably, the Appeals Chamber’s opinion, these com- tain students to join the Interahamwe and while the Appeals Chamber has authority ments established that the Trial Chamber permitted the group to meet at his house to remand any issue to the Trial Chamber, “did not fully appreciate that Zigiranyirazo for the purpose of receiving military train- the present judgment in no way indi- only needed to establish reasonable doubt ing, the Chamber observed that support to cates that the Appeals Chamber considered that he would have been able to travel to a “youth organization” did not “in itself ” remand appropriate in this case. Upon the and from Kesho Hill on the morning of 8 constitute a crime within the Tribunal’s pronouncement of the Appeals Chamber’s April 1994, rather than establish his exact jurisdiction. It further noted that no evi- judgment, Zigiranyirazo was released from location throughout the day in Kanombe.” dence suggested that Renzaho “made state- the UN detention center in Tanzania, where http://digitalcommons.wcl.american.edu/hrbrief/vol17/iss2/8 54 2 Yazdani et al.: Updates from the International and Internationalized Criminal Cou ments against the Tutsis” in this context Tutsi women supported the Prosecution’s recognized Renzaho’s background in pub- or that the “purpose of the training was to charges of genocide, noting that genocide lic service and his submissions concerning kill Tutsis.” In addition, the Trial Chamber may be carried out by acts intended to assistance to Tutsis, it afforded these fac- found insufficient evidence to support the cause serious bodily or mental harm if tors “very limited weight” in light of the Prosecution’s claims that Renzaho ordered those acts are performed with the req- severity of his crimes. In determining that a the killing of certain Tutsis living in Kigali, uisite genocidal intent. The Court found life sentence was appropriate, the Chamber such as André Kameya, a journalist critical genocidal intent behind the rapes charged explained that the sentence was a single, of the Interim Government. in this case because of the surrounding global sentence encompassing punishment circumstances, including the targeting of for each of Renzaho’s crimes, which was Nevertheless, the Trial Chamber found Tutsis and Renzaho’s comments encourag- appropriate in the view of the Chamber that evidence did support several others of ing the rapes. For example, witnesses testi- because all of the offenses were a part of the Prosecution’s allegations. For instance, fied that Renzaho encouraged the rapes “a single criminal transaction.” the Trial Chamber found that Renzaho was by saying Tutsi women were “food for the responsible for the events occurring at a Aileen Thomson, a J.D. candidate at the militiamen,” and telling his subordinates number of roadblocks that were used to Washington College of Law, wrote the judg- that it was “time to show Tutsi women that identify Tutsis who were then captured or ment summary of The Prosecutor v. Thar- Hutus are strong and can do whatever they killed. Specifically, although it discredited cisse Renzaho. Susana SáCouto, Director wanted to do with them.” evidence that Renzaho personally manned of the War Crimes Research Office, and the roadblocks, the Trial Chamber found In terms of Renzaho’s individual crimi- Katherine Anne Cleary, Assistant Director that the accused “ordered the establishment nal responsibility, the Chamber determined of the War Crimes Research Office, edited of and support to” the roadblocks, based that he bore responsibility for each of the this summary for the Human Rights Brief. primarily on evidence of his statements at crimes relating to events at the roadblocks, public meetings and over the radio. Nota- CELA, and Saint Famille Church under a bly, while the evidence did not establish theory of direct responsibility for order- Special Court for Sierra Leone that the accused provided “explicit orders” ing and aiding and abetting the crimes, as to kill Tutsis at the roadblocks, it was clear well as under a theory of superior respon- Cross Examination of Charles to the Trial Chamber that Renzaho was sibility, as Renzaho knew or should have Taylor aware that people were being killed at known that people over whom he exercised The Special Court of Sierra Leone roadblocks “based on their ethnicity and authority were going to commit the rel- (SCSL) resumed with the cross examina- political leanings” as early as April 10, evant crimes, but he did nothing to prevent tion of Charles Taylor, the former Liberian 1994. Thus, it concluded that the accused the crimes. In relation to the crimes of sex- President, on January 11, 2010. Taylor is “was aware that the continued killing of ual violence, the Chamber determined that currently charged with eleven counts of Tutsi civilians was a likely outcome” of his Renzaho was responsible under a theory of war crimes and crimes against humanity. orders to erect additional roadblocks. The superior responsibility only. Interestingly, He has denied allegations that he supplied Trial Chamber also found that Renzaho the Defense had argued that the Intera- arms and ammunition to rebels in return was involved in the killing of a number of hamwe were so unorganized and undisci- for Sierra Leone blood diamonds and help- Tutsis who had sought refuge in Kigali’s plined that it would have been impossible ing Revolutionary United Front (RUF) Centre des Etudes de Langues Africaines for Renzaho to effectively control them. rebels plan operations in which they com- (CELA). In particular, the Chamber found However, the Chamber rejected this claim, mitted rape, murder, and amputations. that, on April 22, 1994, Renzaho super- finding that Renzaho was indeed in a supe- vised a “selection process” by which Inter- rior-subordinate relationship with those In early 2010, Brenda Hollis, Lead ahamwe separated about forty Tutsis from who committed the crimes, not only by Prosecutor for the SCSL, questioned Tay- the other refugees. Renzaho then sent the virtue of his military rank, but also due to lor about allegations made by actress Mia remaining refugees home, while the forty his role as prefect of Kigali-Ville. Farrow pertaining to a 1997 party in South persons selected by the Interahamwe were Africa, which was hosted by Nelson Man- For sentencing purposes, the Prosecu- killed. Similarly, the Chamber found that dela and attended by Naomi Campbell, tion submitted several aggravating factors Renzaho bore responsibility for the kill- Mia Farrow, and other celebrities. The alle- for the Chamber’s consideration, including ing of some forty to fifty Tutsis who had gations claim Taylor delivered a diamond Renzaho’s breach of his duty to the popu- taken refuge in the Saint Famille Church, to Naomi Campbell that he had received lation, which derived from his position as as the evidence established that Renzaho from the Sierra Leon junta regime. The prefect, and the duration and severity of had been present at the church prior to the Prosecutor argued the inclusion of these his crimes. The Defense proposed that the attack, had directed the Interahamwe to kill allegations would refute Taylor’s claims Chamber consider Renzaho’s long history “many persons,” and later ordered them to that he never received diamonds when he of public service, as well as evidence that stop the attack upon the approach of UN was in the Nation Patriotic Front (NPFL) he sheltered Tutsis in his house and tried troops. or President of Liberia. The use of a to arrest wrongdoers, as mitigating cir- document with these allegations reignited In addition to finding Renzaho respon- cumstances. In weighing these factors, the the ongoing battle over the use of fresh sible for genocide based on his involve- Chamber gave significant weight to Ren- evidence during cross examination. The ment in killings of Tutsis, the Trial zaho’s position as a civilian and military Judges disallowed the Prosecution from Chamber found that Renzaho’s role in superior, holding that these increased the using the document in cross examination. several instances of sexual violence against gravity of his crimes. Furthermore, while it

Published by Digital Commons @ American University Washington College55 of Law, 2010 3 Human Rights Brief, Vol. 17, Iss. 2 [2010], Art. 8 In addition, the Prosecution used Tay- Laticia Sanchez, a J.D. candidate at the feasible measures to ensure that children lor’s four-month-long direct examination Washington College of Law, wrote this col- are not recruited or used in hostilities.” testimony to challenge Taylor on topics umn on the Special Court for Sierra Leone Accordingly, the Appeals Chamber held outside the indictment timeframe, in order for the Human Rights Brief. that military leaders “are under a duty to to test Taylor’s credibility as a witness. act with due diligence to ensure that chil- Taylor was asked about his involvement dren under the age of [15] are not recruited Prosecutor v. Sesay, Kallon, and in the 1985 coup to overthrow the then- or used in combat,” and that “[f]ailure to Gbao, Case No. SCSL-04-15-A Liberian president, Samuel Doe; alleged exercise such due diligence to ascertain money embezzlement; and the reason for On October 26, 2009, the Appeals the age of recruits does not relieve an his stepping down as Liberian president. Chamber for the Special Court for Sierra accused of his liability for their recruit- During examination, Taylor said the 2003 Leone upheld the convictions of three ment or use.” Based on these findings, the attack by Liberian rebels on an annex of former RUF leaders for crimes against Appeals Chamber rejected Kallon’s appeal. the U.S. Embassy in Monrovia was what humanity, violations of Common Article In a separate concurring opinion, Judge made him decide to step down as president. 3 to the Geneva Conventions and of Addi- Renate Winter clarified that, in her view, The Prosecution drew attention to the fact tional Protocol II, and other serious viola- the Chamber’s holding on this issue applied the attack occurred one month after the tions of international humanitarian law. The the mens rea applicable to the age of child Accra peace talks, during which Taylor charges it upheld included those relating to soldiers codified in the Elements of Crimes had indicated his willingness to step down forced marriage, the conscription and use of the International Criminal Court (ICC), as president. The Prosecution also alleged of child soldiers in armed conflict, and which requires that the perpetrator “knew that in 1999, when the RUF rebels entered attacks on UN peacekeepers. It reaffirmed or should have known” that the children into negotiations with the government of sentences for Issa Sesay, Morris Kallon, were under 15 years old. While the ICC’s Sierra Leone, Taylor advised his negotia- and Augustine Gbao of 52 years, 40 years, Elements of Crimes are in no way binding tions team to ensure that the peace agree- and 25 years, respectively. The Chamber on the Special Court, Judge Winter never- ment would benefit RUF rebels. However, dismissed 96 counts of appeal, noting that theless stressed that the standard applied Taylor denied the allegations. many of the Appellants’ grounds for appeal by the Special Court was equivalent to the were vague, unsupported, and undeveloped. ICC standard. In the second week of cross examina- While the Appeals Chamber did grant one tion, Taylor denied several more of the Another challenge brought by Kallon of Gbao’s grounds of appeal, overturning Prosecution’s allegations, including that was that the Trial Chamber had erred in his conviction for collective punishments Taylor knew about RUF Commander Sam convicting him of the war crime of inten- as a war crime, the acquittal on this single Bockarie’s threat in December 1998 to tionally directing attacks against peace- count did not alter Gbao’s overall sentence. attack Freetown. The threat was carried keepers. Noting that one of the elements Similarly, although the Appeals Chamber out in January 1999. The rebels commit- of the crime is that the relevant “personnel, granted two of the Appellants’ claims of ted murders and rapes, burned houses, and installations, material, units or vehicles error in regards to sentencing, the findings amputated the limbs of civilians. The Pros- were entitled to that protection given to of error did not require that the sentences ecution dismissed Taylor’s denial, arguing civilians or civilian objects under the inter- handed down by the Trial Chamber be that as the point person for peace in Sierra national law of armed conflict,” Kallon decreased. Leone, he would have been aware of such argued that the UN peacekeeping force threats. The Prosecution further alleged Among the unsuccessful grounds of in Sierra Leone, UNAMSIL, had “acted that Taylor was superior to RUF leaders, appeal brought by the RUF leaders was a in a belligerent manner” toward the RUF, and he knew or had reason to know that claim that the Trial Chamber had erred in thus “stripping itself of any international the rebels were committing such atrocities. finding that Kallon acted with the requisite protection accorded [to] civilians or peace- One of Taylor’s central defenses during his intent in relation to the crime of conscript- keepers.” However, the Appeals Chamber trial has been his stated role as peacemaker ing and using children under the age of agreed with the Trial Chamber that it during the Sierra Leone war. Taylor main- 15 to participate actively in hostilities. was necessary to consider the “totality of tains that in 1997 when he became Liberian Specifically, Kallon alleged that the Trial the circumstances” to determine whether president, the Economic Community of Chamber had improperly shifted the bur- peacekeepers are entitled to the protec- West African States made him head peace- den of proof to the defense by holding tion afforded to civilians and that, in the maker for the conflict in Sierra Leone, and that “where doubt existed as to whether a context of the RUF attack on UNAMSIL, that he did not know about RUF leader person abducted or trained was under the the circumstances showed that the peace- Sam Bockarie’s threats of attack. age of [15], it was incumbent upon the keepers did benefit from the protection perpetrator to ascertain the person’s age.” afforded to civilians. In support of this As the Prosecution continues its cross- In response, the Appeals Chamber first finding, the Appeals Chamber noted that examination of Charles Taylor, it will begin noted its previous holding that the prohibi- UNAMSIL was a peacekeeping mission stepping away from demonstrating Taylor’s tion on conscripting or using child soldiers (as opposed to a peace enforcement mis- untruthfulness during his testimony and existed in customary international law at sion) that was authorized to use force only begin focusing on specific allegations such the time the RUF leaders allegedly engaged in certain exceptional circumstances; that as the use of child soldiers, physical and in such conduct and that “a significant the peacekeepers were only lightly armed; sexual violence, and other acts of terrorism body of conventional international law and that the peacekeepers did not engage in directed at civilians. imposes an obligation on parties to ‘take all http://digitalcommons.wcl.american.edu/hrbrief/vol17/iss2/8 56 4 Yazdani et al.: Updates from the International and Internationalized Criminal Cou hostilities or use force, except legitimately the Appeals Chamber did not find that Convention on the Prevention and Punish- in self defense. these errors warranted any reduction in the ment of Genocide defines genocide as the overall sentences determined by the Trial “intent to destroy, in whole or in part, a In regards to Gbao’s successful ground Chamber. national, ethnical, racial or religious group of appeal against his conviction for the as such.” The ECCC accepted the Conven- war crime of collective punishments, Gbao Laticia Sanchez, a J.D. candidate at the tion’s definition of genocide for use in tri- argued that the Trial Chamber “failed to Washington College of Law, wrote the judg- als at the tribunal. find that he held the specific intent required ment summary of The Prosecutor v. Thar- for collective punishment.” In its judgment, cisse Renzaho. Susana SáCouto, Director During its time in power, the Khmer the Trial Chamber found Gbao guilty of of the War Crimes Research Office, and Rouge systematically executed or caused the war crime of collective punishments Katherine Anne Cleary, Assistant Director the death of those they considered ideo- based on the unlawful killing of 63 civil- of the War Crimes Research Office, edited logical enemies. The genocide charges in ians, which was done in the presence of this summary for the Human Rights Brief. Case 002 refer to the killing of members of several senior RUF members, including identified groups, which would fall under Gbao, for the purpose of “indiscriminately the ECCC’s definition of genocide. How- punishing civilians” perceived to be col- Extraordinary Chambers in the ever, there is some debate about whether laborating with the Civil Defense Forces. Courts of Cambodia the regime had a specific intent to destroy Based on a review of the facts, the Appeals those groups or if the intent was to elimi- Chamber agreed with Gbao’s submission Four Former Khmer Rouge nate political opposition to the regime, that the Prosecution failed to establish Leaders Charged with Genocide which included these ethnic and religious Gbao had the specific intent to collectively groups. The definition adopted by the punish the civilians who were killed, and The Extraordinary Chambers in the ECCC does not recognize the destruction thus overturned his conviction. Neverthe- Courts of Cambodia (ECCC) have con- of political groups as genocide. less, the Appeals Chamber upheld Gbao’s firmed the inclusion of charges of geno- In a filing to the Co-Investigating sentence of 25 years, noting “the particular cide in the case against four former Khmer Judges, defense counsel for Ieng Sary circumstances of this case as well as the Rouge leaders currently in detention. Nuon asserted that the tribunal should use a form and degree of the participation of Chea, known as “Brother Number Two;” “purpose-based” approach to determine Gbao in the crimes, and the seriousness of Khieu Samphan, the ex-head of state; Ieng intent in crimes of genocide rather than a the crimes.” Sary, the former foreign minister; and Ieng Thirith, the former minister of social “knowledge-based” approach. A knowl- Finally, with respect to sentencing, Kal- affairs, were informed of the additional edge-based determination of intent would lon and Gbao successfully challenged their charges during meetings in December only require that the perpetrators knew cumulative convictions on the counts of 2009. The genocide charges refer specifi- their actions would lead to the destruction extermination as a crime against humanity cally to the killing of Vietnamese people in whole or part of a defined group, while and murder as a crime against humanity. and members of the Cham Muslim minor- a purpose-based intent would demand that The Appeals Chamber agreed that the ity group. In early January 2010, the Co- the perpetrators have the destruction of the latter crime is fully subsumed within the Investigating Judges ruled that they would group as a particular goal. former and thus held that convictions on not bring genocide charges relating to The exclusion of genocide charges in both counts for the same underlying acts another minority the Khmer Krom. relation to the Khmer Krom, ethnic Krom are “impermissibly cumulative.” Because from the Mekong Delta region in Vietnam, the crime against humanity of extermi- The four former officials are being could complicate an already intricate trial nation is the more specific offense, the investigated in Case 002 at the ECCC. process. The Co-Investigating Judges ruled Appeals Chamber held that the convic- The Co-Investigating Judges, You Bun- that the charges would not be brought for tions for the relevant killings would stand leng and Marcel Lemonde, are expected procedural reasons. According to the rul- under extermination as a crime against to decide by September 2010 whether to ing, the facts and geographic areas cited humanity, but not under murder as a crime indict the four former leaders and to settle by the Prosecutors and civil parties were against humanity. The Appeals Chamber the final charges, if any. The genocide not included in either the introductory or also agreed that the Trial Chamber “erro- charges have been added to earlier charges, supplemental submissions by the Prosecu- neously double-counted” evidence of the including crimes against humanity and tors, which is a requirement for expand- Appellants’ specific intent in relation to grave breaches of the Geneva Convention. ing the investigation. The lawyers for the the war crimes of terrorism and collec- The only other case at the tribunal, Case Khmer Krom civil parties are expected to tive punishments. Specifically, the Trial 001 against Kaing Guek Eav (known as appeal the decision. Chamber erred in considering the specific “Duch”) ended in November 2009; Duch intent to terrorize or collectively punish was not tried for genocide. Amanda Chace, a J.D. candidate at the as increasing the gravity of the underly- Although the mass killings under the Washington College of Law, wrote this ing offenses and, therefore, warranting the Khmer Rouge in Cambodia between 1975 column on the Extraordinary Chambers imposition of higher sentences, because the and 1979 are often referred to as genocide, in the Courts of Cambodia for the Human relevant intent is an element of the offense academics have long debated whether they Rights Brief. in regards to each crime. Again, however, satisfy the legal definition. The 1948 UN

Published by Digital Commons @ American University Washington College57 of Law, 2010 5 Human Rights Brief, Vol. 17, Iss. 2 [2010], Art. 8 International Criminal Court Kenyan organizations, like the Kenyan killed, eight were wounded, and AMIS National Commission on Human Rights equipment was destroyed. and the Waki Commission, have compiled ICC Prosecutor Requests Specifically, the Prosecutor brought lists of individuals who may have directed Investigation into Kenyan three charges against Abu Garda: vio- the attacks, and these lists include politi- Post-Election Violence lence against life, in the form of murder, cal leaders on both sides of the electoral whether committed or attempted; inten- On November 26, 2009, the Prosecutor dispute. for the International Criminal Court (ICC) tionally directing attacks against personnel, Luis Moreno-Ocampo formally requested Although the Court has not yet estab- installations, materials, units, and vehicles that Pre-Trial Chamber II allow him to con- lished what an investigation against the involved in a peacekeeping mission; and duct an investigation into the post-election interests of justice would be, Moreno- pillaging. ICC Prosecutor Luis Moreno- violence that occurred in Kenya between Ocampo argued that the investigation Ocampo explained at a press conference late 2007 and early 2008. In making the would not be against the interests of justice that, while several attacks had been perpe- request, Moreno-Ocampo for the first time pursuant to Article 53(1). He reasoned in trated against peacekeepers, charges were exercised his proprio motu powers as Pros- his request that, to open an investigation filed against Abu Garda for the Haskanita ecutor under Article 15 of the Rome Stat- under Article 53, the Prosecutor must posi- attack because of its far-reaching con- ute. Article 15 provides that the Prosecutor tively prove jurisdiction and admissibility, sequences. He said, “[W]ith the killings can open an investigation and bring cases but the ICC may refuse to grant leave if it [the peacekeepers] had to withdraw [from against a State Party to the Rome Statute if decides the investigation would be against Haskanita], leaving thousands of civilians he is able to prove the existence of several the interests of justice. Moreno-Ocampo unprotected. The attack had consequences criteria. stated that no such conflict is apparent for the delivery of humanitarian aid as well from available evidence, so the request as safety and security in the region.” Moreno-Ocampo structured his request should be accepted. to demonstrate that the situation in Kenya The purpose of the confirmation hear- met all relevant articles of the Rome Stat- Around the same time that Moreno- ing was to evaluate whether the Prosecutor ute. First, Moreno-Ocampo sought to Ocampo submitted his formal request, he had gathered sufficient evidence for the establish that the ICC has jurisdiction over made a general announcement calling for ICC to find Abu Garda guilty if the case the events in Kenya by providing evidence victims of the violence to come forward proceeds to trial. First, opening statements that the alleged crimes fit definitions in and share their accounts with the Pros- were made by the Prosecutor, Defense, and Article 5 of the Rome Statute such as mur- ecutor. He announced that the period for four representatives of 78 identified vic- der, rape, deportation, and other inhuman victims to make statements would last until tims who had applied. Next, the Prosecu- acts constitute crimes against humanity. December 21, 2009. This effort was com- tor presented documentary evidence and Additionally, the events satisfy Article 11 plicated by issues such as how to provide elicited testimony from three witnesses. because they occurred after the Rome Stat- for the security of victims who come for- The Defense then had an opportunity to ute came into effect in Kenya on June 1, ward. As a result, Kenyans have requested challenge the Prosecutor’s evidence and 2005, and they satisfy Article 12 because to extend the deadline and to disseminate witnesses, and present its own. Defense they occurred on Kenyan territory. information on ICC procedures so victims counsel sought to establish that Abu Garda would be more aware of their rights in any was not present in Sudan at the time of Second, Moreno-Ocampo argued that further proceedings. the attacks and instead was traveling else- his request was admissible because Kenya where in Africa on behalf of the Justice is unwilling and unable to prosecute the and Equality Movement, another rebel Pre-Trial Chamber Declines to matter itself as required by Article 17(1) group with which he was formerly affili- Confirm Charges against Abu (a)-(c). As required by these provisions, ated. Additionally, the Defense argued that Garda Moreno-Ocampo established that no inves- he did not order the attack and in fact tigations had been conducted by Kenyan On October 19, 2009, a confirmation condemned it. After both sides presented officials and none were likely to be under- hearing began in the case of Prosecu- their evidence and witnesses, the victim taken. In particular, the Kenyan Parliament tor v. Bahar Idriss Abu Garda before an representatives had an opportunity to chal- defeated a motion to establish a special ICC Pre-Trial Chamber. Abu Garda is the lenge anything that affected their clients’ tribunal to investigate the violence and Chairman and General Coordinator of Mil- interests. Finally, the Prosecutor, Defense, also refused to refer the matter to the ICC. itary Operations of the United Resistance and the victim representatives made clos- Moreno-Ocampo argued that the events sat- Front, a rebel group fighting the Sudanese ing arguments. The hearing concluded on isfied the requirements of Article 17(1)(d) government. He is the first accused from October 30, 2009. because the crimes are sufficiently grave the Darfur situation to appear before the On February 8, 2010, the Pre-Trial to merit ICC intervention. By the time a ICC. The hearing addressed allegations Chamber entered a decision in which it power-sharing agreement was reached by from a summons issued in May 2009 declined to confirm the charges against Mwai Kibaki and Raila Odinga in February that Abu Garda commanded an attack on Abu Garda. The Chamber concluded that 2008, there had been over 1,000 civilians peacekeepers of the African Union Mission the attack on Haskanita was sufficiently killed, 900 documented cases of rape, and in Sudan (AMIS) at Haskanita in Northern grave to merit ICC involvement because 350,000 people displaced. In one particular Darfur on September 29, 2007. As a result the violence caused AMIS to decrease its incident, between 17 and 35 people were of the attack, twelve AMIS soldiers were burned alive inside a church. Furthermore, presence in the region and led to further http://digitalcommons.wcl.american.edu/hrbrief/vol17/iss2/8 58 6 Yazdani et al.: Updates from the International and Internationalized Criminal Cou instability. However, the Chamber did not Pre-Trial Chamber II determined in Germain Katanga and Matthieu Ngud- find that the Prosecutor had entered enough August 2009 that Bemba no longer ful- jolo Chui are jointly accused of seven war evidence to create “substantial grounds” on filled the requirements of Article 58(1) of crimes and three crimes against humanity which to find Abu Garda guilty for the the Rome Statute, which requires that a committed in the village of Bogoro in the crimes of which he was accused. The Pros- defendant be kept in custody prior to trial Ituri district of the Democratic Republic ecutor now has several options for how to to ensure his appearance at trial. The rea- of Congo (DRC) from January through proceed. He can resubmit his request for sons for keeping someone in custody are to March 2003. According to Human Rights confirmation of charges with additional prevent harm to witnesses and victims and Watch, Katanga and Ngudjolo purposely evidence, or he can petition the Pre-Trial to prevent the defendant from committing attacked the village with the goal of eradi- Chamber for leave to appeal the decision additional related crimes. Judge Ekaterina cating the Hema population in the area. In on the evidence as entered. granted Bemba interim release pending a addition to attacking civilians, the defen- host country’s willingness to take him. This dants are charged with murder, rape, sexual Paul Rinefierd, a J.D. candidate at the decision was based on reduced charges and slavery, pillaging, destruction of property, Washington College of Law, wrote these good behavior. However, without a willing and using child soldiers. columns on the International Criminal host country Bemba’s release was illusory Court for the Human Rights Brief. Due to length of the proceedings and at best. The Appeals Court’s requirement the large numbers of victims, this case that a host country be identified in order to is unique for the ICC and will be closely ICC Appeals Chamber Reverses consider interim release resolves the issue followed in the DRC. The Rome Statute Pre-Trial Chamber II Decision to that Bemba’s possible release created. The of the ICC allows victims to actively par- Release Jean-Pierre Bemba Gombo Court stressed that without state coopera- ticipate in trial by voicing their concerns tion, a conditional release would be inef- On December 2, 2009, the Appeals and opinions in proceedings that affect fective. While Bemba will not be granted Chamber for the ICC reversed Pre-Trial their personal interests provided they do release at this time, the Appeals Chamber’s Chamber II’s August 14 decision granting not violate the defendants’ rights to a fair decision clarified the requirements needed Jean-Pierre Bemba Gombo interim release. trial. In the Katanga and Ngudjolo trial, for interim release for defendants. The Appeals Chamber unanimously agreed the Court has granted victim status for 345 that the Pre-Trial Chamber “misappreci- applicants; however, all except for a small ated and disregarded relevant facts” in Second Congolese Warlord Trial group of child soldiers will be represented concluding that substantial changes in Resumes by a common legal representative. Paulina Bemba’s circumstances justified condi- Vega, Interim Director at the International The ICC trial of Congolese warlords tional interim release. More importantly, Justice Desk at the International Federation Germain Katanga and Matthieu Ngud- the Court specified the conditions required for Human Rights, praises the courts for jolo Chui resumed on January 26, 2010. to grant interim release. It determined that allowing so many victims to participate in Originally set to start in September 2009, interim release must be a “single unsever- the trial, but wonders if “a single legal rep- the ICC decided to postpone the proceed- able decision” that fully states the specific resentative for the larger group of victims ings to allow for more investigation and conditions for release. In addition, the will not fail to guarantee their meaningful was then forced to postpone the proceed- Court required the identification of a host participation.” Allowing victims to partici- ings again when Judge Christine Van den country willing to take responsibility for pate in the trial hopefully satisfies victims’ Wyngaert was injured in a bicycle accident the defendant before interim release is need for justice and closure, which are on December 2, 2009. The Prosecutor v. granted. important goals for the ICC. Although the Katanga and Ngudjolo is the second trial Katanga and Ngudjolo trial will present Jean-Pierre Bemba Gombo is a Congo- for the ICC and is a unique case that will numerous procedural challenges, hopefully lese national charged with war crimes and present many challenges for the Court. it will be fair and meet victims’ expecta- crimes against humanity for his actions as William Pace, Convenor of the Coali- tions as well. HRB military commander in the Central African tion for the International Criminal Court, Republic in 2002 and 2003. He has been in explained that “the Court will deal with Rebecca Williams, a J.D. candidate at the ICC custody since 2008 and will stand trial two accused, two defense teams, multiple Washington College of Law, wrote these April 2010. charges, and more participating victims columns on the International Criminal than in the Lubanga trial.” Court for the Human Rights Brief.

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