Schabas & Arimatsu on Judicial Activism

Posted on April 7, 2012 by Editor

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ECHR: Ahorugeze: Court Gives Green Light to an Extradition to Rwanda

Posted on November 9, 2011 by Editor

2011-10-27, Strasbourg, France. The European Court of Human Rights held that an extradition of Sylvere Ahorugeze, a Rwandan national of Hutu ethnicity,  to Rwanda to face genocide charges will neither violate the prohibition of inhuman or degrading treatment or punishment, nor his right to a fair trial.

 

The Chamber found that:

  • there was no evidence that there was a general situation of persecution or ill-treatment of the Hutu population in Rwanda;
  • there was no evidence of any particular personal circumstances which would indicate that he risks being subjected to treatment contrary to Article 3 due to his ethnicity;
  • the Mpanga Prison, where Rwandan government promised to hold the accused, meets international standards;
  • there was no evidence in the case that the applicant would face a risk of torture or ill-treatment at the Mpanga Prison or the Kigali Central Prison;
  • there was no reason to conclude that the applicant’s ability to adduce witness testimony and have such evidence examined by the courts in Rwanda would be circumscribed in a manner inconsistent with the demands of Article 6;
  • there was no sufficient indication that the Rwandan judiciary lacks the requisite independence and impartiality.

Mr. Ahorugeze moved to Denmark and was granted refugee status in 2001. In January 2006, a Danish public prosecutor opened an investigation into allegations that the applicant had committed genocide and crimes against humanity in Rwanda in 1994. However, in September 2007, after several visits to Rwanda and other countries, and questioning numerous witnesses, the preliminary investigation was discontinued due to insufficient evidence. Subsequently, the Danish Ministry of Foreign Affairs received a request from the Rwandan authorities to have the applicant extradited to Rwanda to stand trial on charges including genocide and crimes against humanity. The Ministry of Justice requested the Rwandan authorities to provide it with further evidence. The Rwandan authorities did not respond and no decision has been taken by the Danish authorities on the request for extradition. On 16 July 2008, the applicant was arrested in Sweden on the basis of an international arrest warrant after the local police was tipped off by the Rwandan Embassy in Stockholm that the applicant was within their jurisdiction. On July 27, 2011 Mr. Ahorugeze was released from custody following a finding by the Swedish Supreme Court that he was detained by authorities for an excessive amount of time. Based on news reports, he returned to Denmark.

The applicant is accused of being a leader for a group of Interahamwe militia and being actively involved in the murder of 28 Tutsis on 7 April 1994.

The applicant was represented by Hans Bredberg. The Swedish Government was represented by Carl Henrik Ehrenkrona. The Government of the Netherlands intervened in the proceedings in support of the decision to extradite the applicant.

One of the more interesting aspects of the Judgment is its review of numerous extradition proceedings to Rwanda. The overview is presented in the following table:

Date

Institution

Accused

Transfer

Reason

2008-05-28

ICTR Trial
Chamber

Yussuf
Munyakazi

Refused

(1) the applicable sentence would be life imprisonment in isolation without appropriate
safeguards, (2) the trial court’s composition with a single judge involved a risk of its being unable to withstand direct or indirect pressure from the Rwandan Government, and (3) the defendant would not be able to secure the attendance of and examine witnesses on his own behalf under the same conditions as the prosecutor’s witnesses.

2008-06-06

ICTR Trial
Chamber

Gaspard
Kanyarukiga

Refused

(1) harassment of witnesses testifying in Rwanda; witnesses who have given evidence before the ICTR experienced threats, torture, arrests and detentions, and, in some instances, were killed; witnesses refused, out of fear, to testify in defence of people they knew to be innocent; (2) some defence witnesses feared that, if they testified, they would be indicted to face trial before the Gacaca courts, or accused of adhering to ‘genocidal ideology’ (3) for the same reasons defendant would not be able to call witnesses residing outside Rwanda to the extent and in a manner which would ensure a fair trial if the case were transferred to Rwanda

2008-06-19

ICTR Trial
Chamber

Idelphonse
Hategekimana

Refused

same as in Kanyarukiga.

2008-10-08

ICTR
Appeals Chamber

Yussuf
Munyakazi

Refused

(1) the applicable sentence would be life imprisonment in isolation without appropriate
safeguards, (2) use of videolink for the majority of defence witnesses would not guarantee the equality of arms; concerns in regard to the
treatment of witnesses in Rwanda and their fears of harassment, arrest and detention.

2008-10-23

Court of
Appeal of Toulouse

Bivugarabago

Refused

(1) followed Munyakasi and Kanyarukiga; (2) a Rwandan tribunal would be sufficiently independent and impartial; (3) no guarantee of a fair trial, in particular with regard to the appearance and protection of defence witnesses

2008-10-30

ICTR
Appeals Chamber

Gaspard
Kanyarukiga

Refused

(1) harassment of witnesses testifying in Rwanda; witnesses who have given evidence before the ICTR experienced threats, torture, arrests and detentions, and, in some instances, were killed; witnesses refused, out of fear, to testify in defence of people they knew to be innocent; (2) some defence witnesses feared that, if they testified, they would be indicted to face trial before the Gacaca courts, or accused of adhering to ‘genocidal ideology’ (3) for the same reasons defendant would not be able to call witnesses residing outside Rwanda to the extent and in a manner which would ensure a fair trial if the case were transferred to Rwanda

2008- 1-03

Court of
Appeals of Frankfurt am Main

Callixte
Mbarushimana

Refused

citing reasons for the refusals of the ICTR to transfer cases to Rwanda

2008-11-03

Court of
Appeals of Frankfurt am Main

Onesphore
Rwabukombe

Refused

citing reasons for the refusals of the ICTR to transfer cases to Rwanda

2008-11-14

Court of
Appeal of Mamoudzou

Simbikangwa Pascal (aka Safari Senyamuhara)

Refused

N/A

2008-11-17

ICTR Trial
Chamber

Jean-Baptiste
Gatete

Refused

same as in Kanyarukiga.

2008-12-04

ICTR
Appeals Chamber

Idelphonse
Hategekimana

Refused

same as in Kanyarukiga.

2008-12-10

Court of
Appeal of Paris

Isaac
Kamali

Refused

N/A

2008-12-16

ICTR Trial
Chamber

Fulgence
Kayishema

Refused

same as in Kanyarukiga.

2009-01-09

Court of
Appeal of Lyons

Claver
Kamana

Refused

(1) problems concerning defence witnesses; (2) the possible punishment of imprisonment for at least 20 years in isolation contravened French
public order as well as Article 3 of the Convention.

2009-02-20

Finnish
Ministry of Justice

François
Bazaramba

Refused

(1) referred to several ICTR decisions; (2) the right to a fair trial, in particular the right of the defence to call and hear witnesses, could not be guaranteed in Rwanda

2009-04-08

UK High
Court of Justice

Brown
and others v. the Government of Rwanda and the Secretary of State for
the Home Department

Refused

(1) referred extensively to the conclusions drawn in the ICTR transfer decisions; (2) no specific provision in the procedural law of Rwanda for witnesses to give evidence via video-link and that, in the circumstances, there was at least a substantial risk that such facilities would not be available;
that the appellants would be unable to call supporting witnesses who declined to give evidence in person out of a professed fear of reprisals; (3) there was evidence of judicial interference by the Rwandan executive and that the appellants would suffer a flagrant denial of justice also in regard to the judiciary’s
impartiality and independence.

2009-07-01

Swiss
Government

Gaspard
Ruhumuliza

Refused

N/A

2010-09-15

Court of
Appeal of Versailles

Eugene
Rwamucyo

Refused

(1) the crimes of genocide with which Mr Rwamucyo was charged were not punishable under Rwandan law at the time when they were allegedly committed; (2) the “ordinary crimes” listed in the extradition request fell under a ten-year statute of limitations; (3) the May 2010 arrest and detention in Kigali of American attorney Peter Erlinder, defence counsel for several Rwandan suspects, on charges of “genocide denial” meant that the accused, if extradited, would not benefit from fundamental procedural guarantees and the protection of the rights of defence.

2010-10-19

Court of
Appeal of Bordeaux

Sosthene
Munyemana

Refused

N/A

2010-11-04

US Supreme
Court

Jean‑Marie Vianney Mudahinyuka

Allowed

N/A

2011-06-28

ICTR
Referral Chamber

Jean-Bosco
Uwinkindi

Allowed

(1) no imposition of the death penalty or life imprisonment with solitary confinement; (2) adequate detention conditions are guaranteed by the Transfer Law; monitoring mechanism will conduct regular prison visits to ensure that both the detention conditions and treatment of the Accused in detention are satisfactory; (3) the concerns of witnesses within Rwanda regarding their safety have been addressed by changes to the law over the past two years; the amendments made to the laws regarding witness immunity, the creation of a new witness protection programme, and the safeguards imposed by the Chamber on Rwanda; the relevant Rwandan laws must be given a chance to operate before being held to be defective; defence arguments to the contrary are mere speculations; (3) in respect of witnesses abroad: witnesses may now testify in three more ways in addition to providing viva voce testimony before the relevant High Court in Rwanda: via deposition in Rwanda; via video-link taken before a judge at trial, or in a foreign jurisdiction; or via a judge sitting in a
foreign jurisdiction; defence arguments to the contrary are mere speculations; (4) in addition to the witness protection programme administered by the Office of the Prosecutor-General (“VWSU”), Rwanda had recently taken steps towards the creation of a witness protection unit under the auspices of the judiciary (“WPU”); defence arguments to the contrary are mere speculations; (5) on the issue of the independence and impartiality of the Rwandan judiciary, the Chamber was of the view that Rwandan judges, as professional judges, benefited from a presumption in their favour that could not be lightly rebutted; the information available to the Chamber did not give reason to conclude that the judiciary was unduly corrupt.

2011-07-11

Oslo
District Court

Charles
Bandora

Allowed

(1) reasonable suspicions against Mr Bandora for the crimes with which he was charged; (2) no reason to assume that, if extradited to Rwanda, he would be subjected to persecution that would threaten his life or freedom or otherwise be of a serious character; the conditions the conditions in the Mpanga Prison, including medical care, corresponded to international standards; (3) the legislative and other changes, as well as the possibility for observers to follow the trial, meant that there was no real risk that the trial would be unfair; the accused fear that witnesses would refuse to give testimony on his behalf if his case were to be tried in Rwanda was not sufficiently justified; (4) accorded great weight to the ICTR decision in Uwinkindi.

For more information see:

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ECCC: 002: No Armed Conflict Nexus Requirement from the Definition of Crimes Against Humanity

Posted on November 2, 2011 by Editor

2010-10-26, Phnom Penh, Cambodia. The Trial Chamber granted the Co-Prosecutors’ motion to exclude armed conflict nexus requirement from the definition of crimes against humanity. This decision effectively reversed the Pre-Trial Chamber’s decision holding that it was not clear whether a nexus to armed conflict was part of the customary international law definition of crimes against humanity from 1975-1979, and that added the nexus requirement to the definition of the crime.

The Trial Chamber pointed out that post-WWII law is ambiguous on the existence of the nexus, with Nuremberg Charter, Control Council Law No. 10, Flick, Einsatzgrnppen, Justice and Ministries Cases pointing in different directions. The Chamber also considered the fact that 1954 ILC Draft Code, 1948 Genocide Convention, 1968 Statute of Limitations Convention, 1968 Statute of Limitations Convention, 1973 Apartheid Convention did not require the armed conflict nexus. Similarly, post-1979 developments in law, such as ICTY Decisions in Tadic case, ICTR and SCSL Statutes, ICC Rome Statute also point in this direction.

On the question of admissibility of the Co-Prosecutors’ Motion, the Defence argued the Motion was inadmissible because it constituted a preliminary objection, because it was an indirect attack on the decision of the Pre-Trial Chamber and because Rule 98 pertains solely to the legal re-characterisation of facts. In finding that the motion was admissible, the Trial Chamber held that this determination falls squarely within the Trial Chamber’s inherent powers, that it may at any time determine the applicable law in this case, and that this includes a determination of the elements of crimes contained in the Closing Order where necessary to accord with the correct state of the law and is subject only to the overriding requirements of a fair trial.

Decision on Co-Prosecutors’ Request to Exclude Armed Conflict Nexus Requirement from the Definition of Crimes Against Humanity

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Denmark: Court of Appeal: Danish Genocide Law Has No Extraterritorial Application

Posted on November 1, 2011 by Editor

2011-10-24, Copenhagen, Denmark. The Eastern High Court of Appeal held that the Danish Act No. 132 of 29 of April 1955 Concerning the Punishment of Genocide cannot be used to prosecute Accused for acts of genocide committed outside Denmark. The Court stated that ”the wording of the law does not provide a basis to assume that the intention was to give the law extraterritorial jurisdiction” and that the Genocide Convention does not require prosecutions for genocide committed outside of one’s jurisdiction.

As a result, the Court dismissed genocide charges against an unidentified 49 year old Rwandan man, a former headmaster. It is alleged that the Accused threw grenades into the crowd of Tutsis fleeing Kabuye Hill where 20,000 of them perished, and was also allegedly responsible for setting up road blocks where many Tutsis were killed.

The court, however, ordered the Accused to remain in custody on ‘subsidiary murder’ charges. The decision drew sharp criticism from John Bosco Siboyintore, the head of the Genocide Fugitives Tracking Unit (GFTU) at the National Public Prosecution Authority (NPPA), who will be demanding the accused extradition to Rwanda to serve his life sentence handed down in absentia by a Gacaca court in 2008.

The accused came to Denmark in 2001 and resided in Roskilde, close to Copenhagen, when he was arrested in December 2010. He was charged with genocide on September 14, 2011.

News24 | CNLG |

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ICC: Mbarushimana: PTC Rejects the Defence Challenge to the Jurisdiction of the Court

Posted on November 1, 2011 by Editor

2011-10-26, The Hague, The Netherlands. The Pre-Trial Chamber of the International Criminal Court rejected the Defence challenge to the jurisdiction of the ICC. The defence argued that the original referral by the DRC government only covered crimes committed in the Ituri region prior to the referral. As a result, according to the defence, the Court did not have jurisdiction to prosecute the accused for crimes allegedly committed in Kivus region after the date of the referral.

The Chamber held that a member state cannot refer the situation in the whole country on a permanent basis to the Court, since this would effectively abdicate the state’s law enforcement responsibilities in the country, and would contradict the concept of complimentarity. However, the Chamber reiterated its earlier decision that “crimes committed after the time of a referral may also fall within the jurisdiction of the Court, provided only that they are sufficiently linked to the situation of crisis which was ongoing at the time of the referral and was the subject of the referral. It is the existence, or non-existence, of such link, and not the particular timing of the events underlying an alleged crime, that is critical in determining whether that crime may or may not fall within the scope of the referral.”

In determining whether such link existed, the Chamber considered the text of the original referral, oral submissions of the parties in other cases, correspondence between the OTP and the DRC government, a speech of the DRC President at the UNGA, numerous UN documents. The Chamber pointed out that in many of these documents there are references not only to Ituri region but to DRC in general and, in addition, many of the documents also mention both regions as a subject of concern.

The Chamber also rejected two other arguments put forward by the Defence, namely, (a) that the events in the Kivus at the time of the Referral “lacked the objective criteria necessary to be incorporated in the Referral” and (b) that failure by the Prosecutor to allege that Mr. Mbarushimana’s involvement in crimes dates back to the time of the Referral, should entail that the case against him falls outside the scope of the Court’s jurisdiction. The Chamber reasoned that “by its very nature, the link required for an event to be encompassed in the scope of a situation can stretch over a number of years; and, [therefore,] it cannot be required that the person targeted by the Prosecutor’s investigation be active throughout the duration of the relevant time-frame.”

The Chamber further rejected the Defence argument that the issue of jurisdiction is the essential part of the OTP’s case and therefore should be proven by the OTP on the ‘beyond reasonable doubt’ standard of proof. The Chamber interpreted the wording of rule 58(1) – that requires the party making a request to provide “the basis for it” – as imposing the burden on the defence to set out the basis for its jurisdictional challenge. Furthermore, the Chamber pointed to the “the widely-accepted legal principle that the party raising a motion before a court should provide the proof upon which his/her motion is based.”

Decision on the “Defence Challenge to the Jurisdiction of the Court”

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ECCC: 002: Trial Chamber Rejects JCEIII

Posted on October 25, 2011 by Editor

2011-09-12, Phnom Penh, Cambodia. After reviewing the WWII jurisprudence cited by the ICTY and the STL in support of JCE III, the ECCC Trial Chamber found that the inference drawn by those tribunals that post-WWII convictions were based on JCE III “was not the only possible one based on the surviving record.” As a result, the Trial Chamber found that JCE III was not a general principle of law at the time relevant to Case 002. It also endorsed the ECCC Pre-Trial Chamber’s finding that JCE III did not form part of customary international law.

However, the Chamber found that both JCE I and II applied to the proceedings before it. Citing the ICTY and ICTR jurisprudence, the Chamber also reiterated

  • that JCE is a form responsibility and not a crime in itself;
  • that it is sufficient to show that the Accused participated in some way in the JCE, and that this participation either amounted to or involved the commission of a crime;
  • that the common plan, design or purpose of a joint criminal enterprise must either have as its objective a crime or contemplate crimes as the means of achieving its objective;
  • that common plan itself need not be criminal.
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France: Paris Court Refuses Extradition of Ms. Habyarimana to Rwanda

Posted on September 29, 2011 by Editor

2011-09-28, Paris, France. The Paris Appeals Court refused to extradite Agathe Habyarimana, widow of the former Rwandan president, to Rwanda to face genocide and crimes against humanity charges arising from the 1994 Rwandan genocide.  Rwandan government alleged that Ms. Habyarimana, 69, was a member of a group that planned the 1994 Rwandan genocide. Martin Ngoga, the Prosecutor General of Rwanda, said that while he was not surprised by the decision, he was expecting France to go ahead with a domestic prosecution of Mr. Habyarimana.

Ms. Habyarimana was arrested by French authorities in March 2010 on the basis of an international arrest warrant issued by Rwanda in November 2009. She was released on bail shortly after the arrest.

Ms. Habyarimana continues to be represented by Philippe Meilhac.

AP | CNN | AllAfrica | Guardian |

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United Kingdom: Parliament Amends ‘Universal Jurisdiction’ Law

Posted on September 22, 2011 by Editor

2011-09-15, London, United Kingdom.  The Police Reform and Social Responsibility Act 2011 that amended several acts including the Magistrates’ Courts Act 1980 received Royal Assent and became law. Under the amendment,  judges hearing criminal complaints filed by private parties can no longer issue warrants without the consent of the Director of Public Prosecutions.

Previously, a magistrate court judge could issue a warrant of arrest on the basis of an information (criminal complaint) filed by a private party. This procedure was a powerful tool for human rights advocates as it allowed them to obtain arrest warrants against alleged human rights violators without the consent of the government. The amendment came into force almost two years after former Israeli Foreign Minister Tzipi Livni had to cancel her trip to London because of an arrest warrant issued in this manner. Following that incident, the then Prime Minister Gordon Brown promised to change the law.

Sources: Haaretz | Lawfare |

 

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Switzerland: Dias: Sri Lankan Major General Investigated for War Crimes

Posted on September 22, 2011 by Editor

2011-09-22, Berne, Switzerland. The Swiss Federal Prosecutor initiated a criminal investigation against Jagath Dias, Major General and the commander of the 57th Division of the Sri Lankan Army during the May 2009 Operation against the Liberation Tigers of Tamil Eelam (LTTE). The investigation has been initiated as a result of a criminal complaint filed with the Office of the Attorney General by the European Center for Constitutional and Human Rights (ECCHR) in August 2011. According to the ECCHR, the criminal complaint is based on a dossier that lists “incidents of attacks carried out by the 57th Division under Dias’ command and directed against civilians in no-fire-zones, as well as against hospitals, religious sites and humanitarian institutions.”

Until September 2011, Jagath Dias held positions in Sri Lankan embassies in Germany, Switzerland and the Vatican, and was granted diplomatic immunity by those countries. He was recalled to Sri Lanka after the allegations of war crimes came to light.

Sources: ECCHR Press Release | TamilNet | ECCHR’s Dossier |

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ICC: Lubanga: TCI Grants 5 out of 7 New Applications of Victims for Participation in the Proceedings

Posted on August 3, 2011 by Editor

2011-07-25, The Hague, The Netherlands. Judge Adrian Fulford granted 5 out of 7 new applications of victims for participation in the proceedings. He dismissed defence counsel’s objections that

  • the overall extent and effect of the redactions affected essential information which limited the opportunity for the defence to make submissions on the admissibility of these applications
    BECAUSE the redactions are necessary to protect the safety and well-being of the applicants;
  • applications were entirely based on the assertions of the applicants, were unsupported by any document or testimony that established the existence of the alleged events; and that they were imprecise
    BECAUSE the applicants only needed to establish, prima facie (as opposed to proof beyond a reasonable doubt or on a balance of probabilities), his or her identity and a link between the alleged harm and the charges against the accused;
  • there were similarities between some of the application forms
    BECAUSE, similarities between the applications were unsurprising and did not in any way undermine their credibility given the broad context of the systematic conscription of children under the age of 15;
  • the applicants have failed to indicate that they were the victims of a relevant crime
    BECAUSE the applicants submitted demobilisation certificates and provided additional information;
  • the identity documents have no probative value because documents of this kind were issued solely on the basis of information provided by the applicants themselves
    BECAUSE “attestation de carence” were recognized as proof of the applicant’s identity;
  • demobilisation certificates have no probative value because they failed to establish either that the applicants were under the age of 15 at the time of the alleged events
    BECAUSE the certificates certified that at the time they were issued, the individual concerned was a minor

Decision on the Applications by 7 Victims to Participate in the Proceedings

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