By Dov Jacobs 

On the 31 March, Pre-Trial Chamber II issued its Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya. The decision was reached by a majority of two, with a strong dissent from Judge Kaul. It is an important decision, because it is the first one to be based on a request from the OTP to open an investigation based on its proprio motu powers under Article 15 of the Rome Statute. Until now, all the investigations opened had been in situations either self-referred by States or referred by the Security Council, in relation to Darfur. The Prosecutor had refused to request the opening of an investigation in Iraq and Venezuela in the past. This practice had, in hindsight, made a joke of the fears of the opponents of Article 15 because they thought it might lead to a politicization of the work of the OTP who might use his powers to go after western powers. These fears remain unfounded today, with a further investigation opened on African territory.

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By Lennert Breuker

Alarming reports on the human rights situation in Myanmar have unfortunately been a consistent phenomenon over the last two decades. But some more momentum seems to have been given to the possibility of a legal response with the report of 10 March of the UN special rapporteur on the situation of human rights in Myanmar (http://www2.ohchr.org/english/bodies/hrcouncil/docs/13session/A-HRC-13-48.pdf). Mr. Tomas Ojea Quintana recommended amongst others:

121. Given the gross and systematic nature of human rights violations in Myanmar over a period of many years, and the lack of accountability, there is an indication that those human rights violations are the result of a State policy that involves authorities in the executive, military and judiciary at all levels. According to consistent reports, the possibility exists that some of these human rights violations may entail categories of crimes against humanity or war crimes under the terms of the Rome Statute of the International Criminal Court.

122. The mere existence of this possibility obliges the Government of Myanmar to take prompt and effective measures to investigate these facts. There have clearly been cases where it has been necessary to establish responsibility, but this has not been done. Given this lack of accountability, United Nations institutions may consider the possibility to establish a commission of inquiry with a specific fact-finding mandate to address the question of international crimes. At this particular stage in the history of Myanmar, the State faces this critical assignment which must be addressed by this Government and by a newly elected Government as well.

The conclusion that the human rights violations, at least prima facie, meet the level of crimes against humanity or war crimes had already been put forward in a report of the International Human Rights Clinic at Harvard University of May 2009 (http://www.law.harvard.edu/programs/hrp/documents/Crimes-in-Burma.pdf – see Human Rights Watch for an overview). The report mentioned forced displacement, sexual violence, extrajudicial killings and torture as examples of acts which have very likely been committed in Myanmar (referred to as Burma in the report), and which are criminalized under international law. The report similarly concluded that a Commission of Inquiry to investigate crimes committed in Burma should be set up. It even went a step further by suggesting that ‘the Security Council should be prepared to act upon findings and recommendations made by such a Commission, including a potential referral to the International Criminal Court…’ (See report p.4). Continue reading →

By Lennert Breuker

The case I want to devote some attention to is already a relatively older case of the ICTR Appeals Chamber (12 March 2008). But as I recently came across several commentaries that noted (with some concern) the expansion of the notion ‘committing’, I just wanted to make to use of this opportunity to link the case to the concept of ‘functional perpetratorship’. 

In Prosecutor vs Seromba the Appeals Chamber convicted a priest for committing genocide, thereby rejecting the Trial Chamber’s finding that his responsibility would be more properly translated into aiding and abetting genocide. What makes this case interesting is that while the priest did not physically perpetrate the genocide, nor was considered as co-perpetrator, nor as a member of a joint criminal enterprise, he was still found to be a principal perpetrator.  Continue reading →

By Björn Elberling

Two counts of navel-gazing in one post: First of all, I would like to welcome our new co-bloggers to the Invisible College. I am looking forward to reading your perspectives and to hopefully many interesting discussion.

Second, I want to shamelessly abuse my posting privileges for some self-promotion: On the occasion of the re-start of the Karadzic trial at the ICTY, the Hague Justice Portal has published a short comment by yours truly on the accused’s defense woes. (Full disclosure: I clerked with the Karadzic defense team in the summer of 2009). Continue reading →

Anyway, the judgment itself is not up on the Tribunal’s website yet, but here is the Tribunal’s Press Release.

More commentary on the judgment, generally supportive of the outcome, by Lisa Gambone on the War Crimes blog. I’ll refrain from commenting in detail until the actual judgment comes out. For now, I just wish to point out that there may be more behind this case than is immediately apparent – before his detention at the ICTR in this case, Nshogoza had been arrested by Rwandan authorities who had announced plans to prosecute him for bribing ICTR witnesses and for “minimization of genocide” – see e.g. the ADAD (Association of Defence Counsel) November 2007 Petition. I’ll also note that, if Nshogoza improperly influenced witnesses, it seems that he would be far from alone in doing so – see, e.g., this Hirondelle article on a Prosecution witness who recanted his testimony against accused Nzirorera claiming that he had been pressured by Rwandan authorities. Finally, see this New Times article on the judgment with a comment by Allison Turner, Nshogoza’s defence attorney.

More, hopefully, once the full judgment is published.