View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Digital Commons @ American University Washington College of Law Human Rights Brief Volume 14 | Issue 1 Article 8 2006 Updates from the International Criminal Courts Elizabeth J. Rushing American University Washington College of Law Nick Leddy American University Washington College of Law Anne Heindel American University Washington College of Law Angela Edman American University Washington College of Law Bjorn Sorenson American University Washington College of Law Follow this and additional works at: http://digitalcommons.wcl.american.edu/hrbrief Part of the Human Rights Law Commons, and the International Law Commons Recommended Citation Rushing, Elizabeth J., Nick Leddy, Anne Heindel, Angela Edman, and Bjorn Sorenson. "Updates from the International Criminal Courts." Human Rights Brief 14, no. 1 (2006): 38-43. 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]. Rushing et al.: Updates from the International Criminal Courts UPDATES FROM THE INTERNATIONAL CRIMINAL COURTS International Criminal Tribunal The month of July brought with it two new of Ecole Sous-Officiers (ESO), a military acad- for the Former Yugoslavia trials for the ICTY. In Popovic, et al., seven sen- emy in Butare, southern Rwanda. Soldiers On September 27, 2006, tribunal judges ior Bosnian Serb military and police officers under Muvunyi’s command attacked between at the International Criminal Tribunal for the will face charges of genocide and various crimes 800 and 5,000 Tutsi refugees in the Mukura Former Yugoslavia (ICTY) sentenced against humanity for acts committed in Forest in April 1994. The court held that Momailo Krajisnik to 27 years imprisonment. Srebrenica. In Milutinovic, et al. the Tribunal Muvunyi failed to use his authority to prevent Krajisnik, a former Bosnian-Serb leader, was will try six former high-level political and mil- his soldiers from participating in the genocide. itary leaders of Serbia and the Federal Republic convicted of persecutions, murder, extermina- Finally, former education minister André of Yugoslavia (FRY), charged with alleged tion, deportation, and forced transfer of non- Rwamakuba was unanimously acquitted on crimes committed in Kosovo during 1999. Serb civilians. After establishing the existence September 20, 2006, and immediately of a joint criminal enterprise intended to released. Rwamakuba had been charged with reduce the proportion of Bosnian Muslims International Criminal conspiracy to commit genocide, incitement of and Bosnian Croats, the judges found that Tribunal for Rwanda or complicity to commit genocide, as well as Krajisnik’s role in the crimes was “crucial” The International Criminal Tribunal for several crimes against humanity, serious viola- because of his senior position. The Trial Rwanda (ICTR) Appeals Chamber delivered tions of Common Article 3 to the Geneva Chamber acquitted Krajisnik of genocide, a landmark decision on June 16, 2006, in the Conventions, and violations of Additional complicity in genocide, and one count of case of Prosecutor v. Karemera, Ngirumpatse Protocol II. The Chamber found that testi- murder as a violation of the laws or customs and Nzirorera. The opinion recognized that mony demonstrated that Rwamakuba was not of war, noting that he did not have the specif- genocide occurred in Rwanda during the peri- present at the time and location of the alleged ic intent necessary for genocide. od of April 6 to July 17, 1994 — holding that events. Additionally, some of the prosecution’s On May 3, 2006, the ICTY Appeals the genocide is now a matter of “common evidence was based on hearsay; hence, the Chamber affirmed the sentences for Mladen knowledge.” This opinion has now indis- prosecution did not meet its burden to prove Nalelitic (“Tuta”), and Vinko Martinovic putably established Rwanda’s genocide in the the charges beyond a reasonable doubt. ICTR’s jurisprudence. The Karemera decision (“Stela”). Naletilic was found guilty on eight In a related development, on September is significant because it removes the require- counts of crimes against humanity and war 18, 2006, the ICTR accepted the resignation ment of proving genocide in every case, crimes and Martinovic was found guilty on of Callixte Gakwaya, a defence attorney at the silencing the rejectionist camp. The decision nine counts of crimes against humanity. The ICTR accused of having participated in the will have a significant impact on future defen- judges dismissed most of the appeals pertain- genocide. Previously, Rwanda had shown dants accused of genocide by eliminating the ing to issues of due process, evidence, and concern over Gakawaya’s involvement in the perpetual relitigation of the established histor- crimes involved in the trial of the two Bosnian ICTR, and threatened to cease cooperation ical fact of Rwanda’s genocide. Croats. The Chamber found that, given the with the court unless he was fired. Gakwaya is particular circumstances of the case and the On September 12, 2006, Trial Chamber I listed as one of 12 genocide suspects defendants’ degree of participation, the sen- acquitted Jean Mpambara, former mayor of employed at the ICTR. According to the tences of 20 and 18 years’ imprisonment were the Rukara commune in Rwanda. Mpambara ICTR, only two of these suspects are still reasonable. Both men had served as military was accused of planning, directing and facili- employed and they are both currently under commanders in the Mostar region of Croatia tating attacks against Tutsi civilians. The investigation. between April 1993 and January 1994. Chamber held that the prosecution failed to On June 30, 2006, the ICTY Trial prove the charges beyond a reasonable doubt. Sylvestre Gacumbitsi v. Chamber sentenced Naser Oric, former sen- In acquitting Mpambara, Judge Jai Ram The Prosecutor, ior commander of Bosnian Muslim forces, to Reddy said that the evidence establishing his Case No. ICTR-2001-64-A instigation and assistance in the attacks was two years’ imprisonment. Oric was convicted On July 6, 2006, the Appeals Chamber of not credible. Further, the Chamber held that for failing to exercise command responsibility the International Criminal Tribunal for on occasion Mpambara’s inaction was due to to prevent the murder and cruel treatment of Rwanda (ICTR) delivered its judgment in the a lack of resources for an effective defense numerous Serb prisoners in the former UN case of Sylvestre Gacumbitsi v. Prosecutor. From against the attackers. Residents of the former “safe area.” ICTY judges described the condi- 1983 through 1994 Sylvestre Gacumbitsi Rukara commune have expressed disappoint- tions in and around Srebrenica, Oric’s served as the highest-ranking local administra- ment over the acquittal. perimeter of command, at the time of the tive official, or bourgmestre, of Rusumo crimes in 1992 and 1993 as more abysmal In another ruling the same week, the ICTR Commune. On June 17, 2004, ICTR Trial than any other case before the Tribunal. The sentenced Tharcisse Muvunyi to 25 years for Chamber III found Gacumbitsi guilty of geno- judges convicted Oric because he had reason to genocide, direct and public incitement to com- cide and the crimes of humanity of extermina- know about the murders and cruel treatment mit genocide, and rape as a crime against tion and rape due to his role in organizing and but failed to take “necessary and reasonable humanity. Muvunyi was a former commander executing a campaign against the Tutsi popula- measures” to prevent their occurrence. Published by Digital Commons @ American University Washington College38 of Law, 2006 1 Human Rights Brief, Vol. 14, Iss. 1 [2006], Art. 8 tion in Rusumo Commune in April 1994. The material facts must be pleaded, the ity, and that they were subsequently killed. Gacumbitsi received a thirty-year sentence. evidence need not. When an indict- The language of the indictment was suffi- ment alleges genocide, proof of any one ciently clear for the Appeals Chamber to find Both Gacumbitsi and the Prosecutor killing is not a material fact as it would that the accused had ample timely notice of appealed the conviction. The Appeals be in the case of murder; it is evidence this charge. The Appeals Chamber therefore Chamber dismissed all of Gacumbitsi’s of a material fact, namely that the entered a new conviction for aiding and abet- grounds of appeal. It granted the Prosecutor’s intent of the accused was the destruc- ting the crime against humanity of murder. appeal in part, finding Gacumbitsi guilty of tion of a group, as a group. aiding and abetting the murder (as a crime In contrast, Judges Liu and Meron wrote against humanity) of two of his female Tutsi Prosecutor’s Appeal: Rape As a separately to argue that the Chamber had Crime Against Humanity tenants. Additionally, while the Trial been too lenient in finding that a “vague The Trial Chamber convicted Gacumbitsi Chamber held that Gacumbitsi’s authority for chart-entry summarizing the anticipated testi- for eight counts of rape. However, it acquitted ordering the crimes committed in Nyarubuye mony of one witness” cured the indictment. Parish on April 15, 16, and 17 and in him on three additional counts after finding Kigarama on April 14 was limited to the com- Notably, the Appeals Chamber deter- insufficient evidence to demonstrate that munal police, the Appeals Chamber found mined that even if the killing of Murefu was Gacumbitsi had instigated the crimes. The that it also extended to several other groups of set aside, the Trial Chamber’s conclusion that Prosecutor argued that the Trial Chamber attackers. Based on these additional findings, Gacumbitsi “committed” genocide would still “erred in law by requiring it to establish that the Appeals Chamber quashed the Trial be valid.