JusticeUpdated

2010-07-23, The Hague, The Netherlands. The ICC’s Appeals Chamber suspended the application of the decision of the Trial Chamber I to release the accused as a result of an uncondition stay of proceedings:

In the view of the Appeals Chamber, an immediate implementation of the order to release him could render the resumption of the trial uncertain, should the Appeals Chamber later find in favour of the Prosecutor’s appeals against the Decision to Stay Proceedings and the Impugned Decision. In these circumstances, his release could potentially defeat the purpose of the present appeal and that of the appeal against the Decision to Stay Proceedings, and the granting of suspensive effect is therefore appropriate.

The criminal proceedings against Mr. Lubanga have been suspended by the Trial Chamber on July 8, 2010 because of the Prosecutor’s blatant refusal to comply with the order of the Chamber to disclose information concerning one of the intermediaries. The Trial Chamber concluded as following:

Therefore, the Prosecutor has elected to act unilaterally in the present circumstances, and he declines to be “checked” by the Chamber. In these overall circumstances, it is necessary to stay these proceedings as an abuse of the process of the Court because of the material non-compliance with the Chamber’s orders of 7 July 2010, and more generally, because of the Prosecutor’s clearly evinced intention not to implement the Chamber’s orders that are made in an Article 68 context, if he considers they conflict with his interpretation of the prosecution’s other obligations. Whilst these circumstances endure, the fair trial of the accused is no longer possible, and justice cannot be done, not least because the judges will have lost control of a significant aspect of the trial proceedings as provided under the Rome Statute framework. Whilst the stay of the proceedings is in place, the Chamber will deal with any application for leave to appeal on this or any related issue that is filed.

Decision

2010-07-27, London, United Kingdom. Judge Timothy Workman of the Westminster Magistrates’ Court rejected the Serbian request to extradite Ejup Ganic on charges of war crimes. Sebrian War Crimes Prosecution accused Mr. Ganic of masterminding the Dobrovolja?ka St. massacre that took place on May 2 and 3, 1992, when Bosnian Muslims killed scores of JNA soldiers that were departing for Serbia.

The defence argued that the extradition request was politically motivated, that the claims of Ganic’s responsibility have been investigated and rejected by the WCS of the BiH and ICTY, and that the accused would not get a fair trial in Serbia. The British Prosecutor arguing on behalf of the Serbian counterpart pointed to the evidence of Ganic’s involvement in the incident, positive reviews of the Serbian war crimes trials and to the availability of the appeal to the ECHR.

Judge Workman sided with the defence. Serbian War Crimes Deputy Prosecutor Bruno Vekari? said that the ruling will be appealed.

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2010-07-22, N’djamena, Chad. Sudanese President wanted by the ICC for war crimes, crimes against humanity and genocide has arrived to Chad’s capital for a summit of the Community of Sahel-Saharan (CEN-SAD) states. Chad, that ratified the ICC Rome Statute, refused to arrest Mr. Al-Bashir. Ahmat Mahamat Bachir, the Interior Minister, justified his government’s inaction in no uncertain terms:

“We are not obliged to arrest Omar Hassan al-Bashir. Bashir is a sitting president. I have never seen a sitting president arrested on his travels by the host country.”

BBC |

2010-06-24, Libreville, Gabon. Gabonese police arrested Jean-Chrysostome Ndindabahizi on charges of conspiracy to commit genocide, crimes against humanity and murder during the Rwandan genocide. Dr. Ndindabahizi was a doctor at Butare University Hospital and is accused of participating in planning of the genocide. He was handed over to the INTERPOL, as Gabon does not have an extradition treaty with Rwanda.

Jurist |

2010-06-23, Arusha, Tanzania. The Trial Chamber denied the fourth motion filed by the four accused requesting the dismissal of the Indictment against them because of the violation of their right to trial without undue delay (they have been incarcerated for 4,018 days or 11 years; and the trial ended 2 years ago).

Law

The Chamber held that the following factors should be considered in determining whether there has been a violation of the right to be tried without undue delay:
(1) The length of the delay;
(2) The complexity of the proceedings, such as the number of charges, the number of accused, the number of witnesses, the volume of evidence, the complexity of facts and law;
(3) The conduct of the parties;
(4) The conduct of the relevant authorities; and
(5) The prejudice to the accused, if any.

While recognizing the persuasive effect of the decisions of the USSC, UNHRC and ECHR, the Chamber refused to follow the jurisprudence developed by these institutions on the ground that the ICTR Appeals Chamber “has already established clear criteria which must be taken into account in determining whether there has been undue delay.”

Application

(1) & (5) The Chamber refused to consider the length of the delay and the prejudice on the accused as two most important factors, reasoning that the “undue delay” should be considered taking into account all factors. The Chamber dismissed the arguments concerning a significant psychological impact of the 11-year incarceration on the ground that “[since the decision on the third motion regarding delays] the trial in this case has advanced significantly and the Chamber is now at the stage of deliberating and considering its judgment”
(2) The Chamber pointed at the “the complexity of the factual allegations that [was] exacerbated by … the Prosecutor’s allegation of conspiracy and the various modes of liability” pleaded in the Indictment and the fact that the trial involved 4 co-accused, 171 witnesses, 404 trial days and several thousand pages of exhibits and court transcripts.
(3) The Chamber did not consider this factor on the ground that the defence did not raise any new arguments;
(4) The Chamber dismissed the argument that the ICTR lacked sufficient funding on the ground that it is unfounded.

In his dissent, Judge Emile Francis Short stated that the majority failed to consider the reasonableness of the 24-months delay in rendering the trial judgment in the present case (the evidence phase of this case closed on 12 June 2008 and closing oral arguments were heard between 1 and 5 December 2008). Judge Short also endorsed the ECHR jurisprudence holding that factors such as the workload of the court and the shortage of resources are not sufficient justifications for delays in a trial. Finally, he pointed out that the Tribunal and the judges are to be blamed for the delay. The Tribunal’s policy of pursuing new cases prior to reaching judgments in ongoing cases resulted in Judges Khan and Muthoga being involved in 4 other cases, since the end of the trial in the present case (Zigiranyirazo, Léonidas, Ntawukulilyayo, Gatete).

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