November 28, 2012, Utica, NY, United States

Mr. Mujagic is accused of unlawfully killing one (Ekrem Baltic) and torturing another (Nisvet Cordic) soldier of the Army of Bosnia and Herzegovina on March 6, 1995. At that time, Mr. Mujagic was a platoon commander in the Army of the Autonomous Province of Western Bosnia (A/APZB), a break away province in Bosnia that was supported during Bosnian War by both Croats and Serbs. The accused moved to Utica, New York in July 1997, and obtained permanent residence.

Sulejman Mujagic, Complaint, U.S. Dist. Ct. N. Dist. N.Y., Case No. 5:12-MJ-529 (Nov. 27, 2012)

2011-10-27, Strasbourg, France

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:

For more information see:

• Judgment of October 27, 2011
• Press Release
• William Schabas ‘Rwandan Extradition Authorized by European Court of Human Rights’
• Impunity Watch ‘The European Court Of Human Rights Grants Rwanda’s Extradition Request’
• RwandaInfo ‘Europe Has No Reason to Prevent Genocide Trial’
• RNW ‘Green light – Sweden to Rwanda genocide extradition’
• RNA News ‘Sweden frees Rwandan genocide suspect for lack of evidence’
• Human Rights Watch: World Report 2011: Rwanda
• Amnesty International: Annual Report 2011: Rwanda: Justice System

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

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 |

2011-10-26, The Hague, The Netherlands.

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”

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.

2011-09-28, Paris, France

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 |

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 |

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 |