ICC Premanent Premises, The Hague. Photo: by ICL Media Review (rights reserved).
ICC Premanent Premises, The Hague. Photo: by ICL Media Review (rights reserved).

ICC Judges authorize opening investigation in Burundi: On 9 November 2017, ICC Pre-trial Chamber III issued the public redacted version of its decision granting authorization to the ICC Prosecutor to open an investigation into the situation in Burundi. The Chamber found that there was reasonable basis to proceed with an investigation in relation to crimes against humanity (including murder, imprisonment, torture, rape, enforced disappearance and persecution) allegedly committed in Burundi, and by Burundian nationals outside the country, since 26 April 2015 until 26 October 2017. It also noted that the Prosecutor is authorized to extend her investigation to crimes which were committed before or after those dates if certain legal requirements are met. The crimes in question were allegedly committed by State agents and other groups implementing state policies, including members of the young wing of the ruling party known as the “Imbonerakure”. The decision was first issued under seal on 25 October 2017, two days before Burundi’s official withdrawal from the Rome Statute came into effect. Accordingly, the Court retains its jurisdiction even after the withdrawal as long as the investigation relates to crimes allegedly committed during the time Burundi was a member of the Rome Statute. The level of confidentiality of the authorization proceedings (under seal, ex-parte) was explained to be aimed at attenuating risks to life and well-being of victims and potential witnesses. Lastly, the Chamber addressed the issue of complementarity, noting that the Burundian authorities have remained inactive in relation to potential cases, even despite the establishment of three commissions of inquiry, thus creating no conflict of jurisdiction between the Court and Burundi. (ICC Press Release, ICC PTC Decision)

Thomas Lubanga. Photo: via Bing (CC).
Thomas Lubanga. Photo: via Bing (CC).

ICC AC Panel decides no change in circumstances to warrant Lubanga sentence reduction: On 3 November 2017, the Appeals Chamber of the ICC issued its second decision on the review concerning the reduction of sentence of Thomas Lubanga Dyilo. The decision was issued by a three-judges panel appointed to conduct the review concerning the reduction of the sentence, as provided by rule 224(1) of the Court’s Rules of Procedure and Evidence. The process of reviewing the sentence of a convicted person falls within the purview of Article 110(3) of the Rome Statute, according to which “when a person has served two thirds of the sentence, […] the Court shall review the sentence to determine whether it should be reviewed”. In its decision, the panel rejected the request by the Legal Representatives of Victims to postpone the review of Lubanga’s sentence by 6 months, and refused to reduce Lubanga’s sentence. On 14 March 2012, Lubanga was convicted of the war crimes of conscripting and enlisting children under the age of 15 to actively participate in hostilities, crimes for which he was sentenced to 14 years of imprisonment in July 2012. Following its appointment in June 2015, the three-judges panel conducted a first sentence review decision in September 2015, in which it determined that it was not appropriate to reduce Lubanga’s sentence, and announced another review after two years. In making its determination for the second review, the panel assessed each of the factors listed under Art. 110(4) of the Statute and rule 223 of the Rules, together with the submissions of the parties, to determine whether there had been any change in circumstances since the first sentence review and, if so, whether that change was actually significant. The panel determined that there was no significant change in circumstances since the first review that would merit a reduction in Lubanga’s sentence, and that in light of his sentence expiring on 15 March 2020, there is no need to schedule a further review of the sentence. That is, however, without prejudice to the Lubanga’s right to apply for a new review in case of significant changes in circumstances. (ICC AC Decision)

ICTY / MICT Prosecutor to report Croatia to UNSC over non-cooperation: On Tuesday, in an interview with a Croatian newspaper, ICTY Prosecutor Serge Brammertz said that Croatian authorities are obstructing cooperation between the Croatian judiciary and their counterparts in Bosnia and Herzegovina on war crime cases. In the interview, the Prosecutor explained that such uncooperative behavior is preventing suspects from being tried for war crimes, adding that he will tell the UN Security Council that the ICTY Prosecution is “very dissatisfied” with the situation, a feeling that he already shared with Croatian Justice Minister last week. “I told the minister that I was very surprised that in one EU member state, the executive can drastically interfere with its own judiciary by preventing the fulfillment of certain requests for assistance from Bosnia and Herzegovina,” Brammertz told the newspaper. In June 2015, the Croatian government gave Croatian institutions the power to reject cooperation with Bosnia and Herzegovina over certain indictments if deemed politically motivated. “Sometimes it is difficult to understand why there are so many problems and delays as both countries have a similar legal basis and use the same language. Definitely I can say that regarding the quality of cooperation between prosecutors in Croatia, Bosnia and Herzegovina and Serbia, there is room for improvement,” said Brammertz in the interview. (BalkanInsight)