On 8 June 2018, after a 10-year odyssey of proceedings, hundreds of submissions (oral and written), roughly 48 months of trial, 77 witnesses, 733 admitted items of evidence, 1219 written trial decisions and orders, and at the expense of an incredible amount of human and financial resources, Jean-Pierre Bemba Gombo was acquitted by the International Criminal Court (ICC) Appeals Chamber of all charges (murder and rape as crimes against humanity, murder and rape as war crimes, and pillaging as a war crime) that he was unanimously convicted of by Trial Chamber III (Presiding Judge Sylvia Steiner, Judge Joyce Aluoch, and Judge Kuniko Ozaki).
On 22 May 2018, the Palestinian Authority (PA) filed a referral to the International Criminal Court’s (ICC) Office of the Prosecutor (OTP), requesting it “to investigate, in accordance with the temporal jurisdiction of the Court, past, ongoing and future crimes within the court’s jurisdiction, committed in all parts of the territory of the State of Palestine.”
Prosecutorial Discretion & The Interests of Justice: what, when, how
In my previous post I reviewed Priscilla Hayner’s The Peacemaker’s Paradox: Pursuing Justice in the Shadow of Conflict, giving it a superb rating and recommending it to anyone working in the field of transitional justice – from mediators to civil society and human rights advocates. As I noted, Hayner draws from her wealth of experience and from her in-depth and critical examination of past efforts by various actors in the peacemaking and transitional justice chain, including international(ized) criminal tribunals and courts – most notably the International Criminal Court (ICC) – to see what has worked or failed in peacemaking. Presenting a clinical analysis of the what, how, and why of these past examples, Hayner shows that during peacemaking efforts, process matters, intrinsic to which are timing, strategy, and context. This is particularly relevant when the ICC Prosecutor exercises her authority: depending on the strategy and tactics adopted, she can be instrumental or detrimental to the peacemaking process. Continue reading “Part II – Panel Discussion on The Peacemaker’s Paradox: Pursuing Justice in the Shadow of Conflict”
There is no peace without justice; there is no justice without truth.
Professor Mahmoud Cherif Bassiouni
Recently, I participated in a Flash-Colloquium titled: Justice, Truth and Peace. The topic was inspired by the sage Professor Bassiouni – a giant in the field of international humanitarian and human rights law. Sadly, he left us on 25 September 2017.
The presenters were given a maximum of three minutes to speak on one of the six permutations of these three words: Truth, Justice, Peace, Peace-Justice, Justice-Truth, and Truth-Justice-Peace.
Two weeks ago the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) filed a request to the Pre-Trial Chamber (PTC) seeking, for all intents and purposes, an advisory opinion on whether the ICC may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.
Recently there has been a sharp uptick in traffic to an October 2015 post I wrote on the crime-fraud exception to attorney-client privilege (reproduced below). This post was part of a four-part series on attorney client-privilege issues in domestic and international(ized) courts. I can only assume that the renewed interest in this subject is fueled by last week’s FBI execution of a search warrant on the office, home and hotel room of Michael Cohen, lawyer (some say “fixer”) for President Donald Trump. As I write, the issue is playing out in a United States District Court in New York, where Cohen, supported by Mr. Trump’s lawyers, is seeking an injunction to prevent the prosecutor from examining seized materials, based on attorney-client privilege.
Before this litigation is over we are likely to see a very high-profile addition to the canon of law on the crime-fraud exception to attorney-client privilege.
Attorney-Client Privilege — Part IV: The Crime-Fraud Exception
This post follows up on the discussion of the attorney-client privilege and the crime-fraud exception raised in Prosecutor v. Bemba et al. (“Bemba”) before the International Criminal Court (“ICC”). In my previous post, I presented an overview of the attorney-client privilege (otherwise known as “lawyer-client privilege” or “legal professional privilege”) in the international criminal tribunals. As previously discussed, one of the exceptions to the attorney-client privilege is the crime-fraud exception. This exception applies when communications are made in furtherance of a crime or fraud. In other words, the attorney-client privilege is not a shield to be used by either the attorney or the client to pursue or cover up criminal activity, including acts contributing to the obstruction or perversion of justice. The ICC Pre-Trial and Trial Chamber decisions in Bemba raise several questions concerning the scope of this exception. Before I get into those questions, let’s briefly review the history of the case. Continue reading “Attorney-Client Privilege — The Crime-Fraud Exception”
The Court and this trial were different. It was a Court for nearly all places and all times promising something most everyone in the world wanted badly, even if some state authorities remained wary. It was to bring tyrants to account, punish them according to their crimes, and give pause to others with tyrannical pretentions.
It was not just what kind of justice would be rendered for Lubanga. The Court itself was on trial.… Lubanga’s atrocities spoke for themselves, or so it appeared. They were well known in his country. They were well known abroad among the international organizations that had been forced to intervene to protect his victims, and they were well known among human rights organizations whose reporting brought his crimes to word attention. Something would have to go woefully askew for the trial to end up questioning the severity of the crimes. And yet, as the trial unfolded, the crimes became strangely and increasingly beside the point, buried under a spectacle of legal combat between counsellors who seemed more concerned with prevailing in the courtroom than worrying about what atrocities had been committed in Ituri and how to assign responsibility.
A Conviction In Question: The First Trial at the International Criminal Court, by Jim Freedman, University of Toronto Press, 2017, $32.95, 219 pages, pp. xiii, xvi-xvii
Uganda President Yoweri Museveni has turned hypocrisy into an art form. One moment he is railing against the International Criminal Court (ICC) for having the temerity to investigate, charge, and try individuals from the African continent alleged to have committed crimes falling under the ICC’s jurisdiction, and the next he is asking the ICC Prosecutor to charge anyone he deems out of favor, such as the recently sacked Uganda Inspector General of Police, General Kale Kayihura.
He is sick and tired of being accused. … He wants to be in court to put the prosecutor on the stand.
Harry Roque, Philippines Presidential Spokesperson
Finally. On 8 February 2018, ICC Prosecutor Fatou Bensouda announced that the Office of the Prosecutor (OTP) would open a preliminary examination on the widely publicized allegations of extra-judicial killings ordered by President of the Philippines Rodrigo Duterte, committed as part of his war on drugs.
I once again repeat my call to Libya to take all necessary steps possible to immediately arrest and surrender Mr al-Werfalli to the ICC. I also repeat my call on all States, including members of the United Nations Security Council, to support Libya in facilitating Mr al-Werfalli’s arrest and surrender to the Court.
Only when perpetrators realise there will be serious consequences for their crimes can we hope to deter future crimes.
I am dismayed that Mr al-Werfalli appears to remain in a position of command, and allegedly continues to commit crimes with impunity, despite an official statement from the General Command of the Libyan National Army (“LNA”) in August 2017 that Mr al-Werfalli had been arrested and was under investigation by a military prosecutor. I once again call on General Khalifa Haftar, as commander of the LNA and superior of Mr al-Werfalli, to heed my previous call to the LNA to work with the Libyan authorities to enable the suspect’s immediate arrest and surrender to the ICC.
The appalling cycle of violence and impunity in Libya cannot be allowed to continue for the sake of the Libyan people and the security and stability of the country and the region.
The International Criminal Court (ICC) Prosecutor Fatou Bensouda was prompted to speak out and to once again solicit the assistance of the United Nations Security Council (UNSC) concerning the situation in Libya. This time it was about the two car-bombings on 23 January 2018 detonated by unidentified persons outside the Baya’at Al-Radwan mosque in Benghazi, Libya that killed more than 34 civilians, including children, and wounded over 90 others, and a video surfacing the following day apparently showing Major Mahmoud Mustafa Busayf Al-Werfalli executing 10 persons in front of the Baya’at Al-Radwan mosque, purportedly in retaliation for the two car-bombings.
To appreciate Bensouda’s call for assistance from the UNSC, we must reflect back to 2011 when Libya was engulfed in a civil war. On 26 February 2011, acting under Chapter VII of the UN Charter, and consistent with Article 13(b) the Rome Statute, the UNSC passed Resolution 1970, calling on the ICC to investigate the mass atrocities and human rights abuses which occurred (and continue to occur) in Libya during and after the overthrow of Muammar Gaddafi’s regime. In keeping with its obligations, the Office of the Prosecutor (OTP) has unhesitatingly abided – despite the lack of any appreciable assistance from the UNSC. Continue reading “THE LIBYAN REFERRAL: Trojan Horse or Realpolitik Casualty”