In this week’s review, news about France’s complicity in the Rwanda genocide, crimes against humanity in North Korea, the ICC Prosecutor address the UN Security Council on Darfur, the Colombia tribunal’s hearing on Im Chaem investigation dismissal, ICC referral of Jordan to the UN Security Council / ASP, the ASP election of new ICC Judges, and the ICC pre-trial Chamber order for more info on Afghanistan investigation request.

Report commissioned by the Rwandan government finds French officials complicit in 1994 genocide

On 13 December, a report commissioned by the Government of Rwanda was released which found that French officials were complicit in the 1994 Rwandan genocide, and also obstructed justice after the events.  The Report, called by ‘Muse Report’ was produced by Washington based law firm, Cunningham, Levy, Muse, and drew from sources such as diplomatic cables and witness testimony.  The Report makes findings that during the conflict French officials provided weapons to Government forces and militias which were found to be responsible for crimes including the killing of Tutis, and also provided support and shelter to individuals in the interim Government who were later charges and convicted of Genocide.  The Report finds that French officials had knowledge that the individuals supported were responsible for the crimes which amounted to genocide, and that after the crimes were committed French officials obstructed justice by failing to release documents or extradite suspected persons.  The Report recommended that a full investigation be conducted into the role of French officials in the events.  Following the release of the Report, Rwandan Foreign Minister Louise Mushikiwabo supported the call for a full investigation. (Muse ReportCNN)

International Bar Association committee releases reports on crimes against humanity in North Korea

On 12 December, the International Bar Association (IBA) War Crimes Committee released its findings of an investigation into North Korean political prisons. The information in the report, titled Inquiry on Crimes Against Humanity in North Korean Political Prisons, was collected through detailed satellite imagery and testimony of defectors, which exposed ample evidence to support a finding that crimes against humanity have been, and continue to be, committed on a massive scale in political prisons in North Korea. In particular, the report includes evidence concluding that North Korea’s ‘Supreme Leader’ Kim Jong-un and other regime officials should be prosecuted, under the principle of command responsibility or through their participation in a joint criminal enterprise, for 10 of the 11 crimes against humanity enumerated in the Rome Statute.

The recommendations made in the report include the dismantlement of the political system in the country and commitment to a new system of fair and transparent justice and the adoption of carefully targeted, coordinated and multilateral sanctions against individuals deemed responsible for the crimes. The report also urges the international community to provide the ICC or a special international tribunal with jurisdiction to appropriately investigate the situation and hold accountable for their crimes the culpable parties. “It was believed that whole generations of families still remained in these isolated camps and the people incarcerated in barbaric conditions had no prospect of release,” said Steven Kay QC, the past co-chair of the War Crimes Committee. The inquiry, and its exposure of the crimes committed in North Korea, “shines a light upon what happens to ordinary people who have no political voice and no rights including that of survival,” he added. (IBA ReportTIME)

ICC Prosecutor makes statement to UN Security Council on Darfur

On 12 December, ICC Prosecutor Fatou Bensouda spoke to the UN Security Council (UNSC) to provide her 26th report on the situation in Darfur pursuant to the 2005 UNSC Resolution 1593. In her statement, the ICC Prosecutor called out “the consistent failure of the Council to act” as a number of State Parties to the Rome Statute have welcomed Sudanese President Omar Al Bashir on their territories despite an ICC arrest warrant against him. Addressing the claim of a lack of legal clarity often made by the States who fail to arrest him, Bensouda cited the decision of ICC Pre-Trial Chamber II of 6 July 2017 in relation to the failure of South Africa to arrest Bashir as he attended a AU Summit in the country. In that case, the Chamber found that there was no legal or factual justification for South Africa’s failure to comply with its obligations under the Statute to arrest and surrender Bashir to the Court, dispelling any doubt on the legality of the situation. “This costly inaction has the potential to undermine the fight against impunity, the effect of which is to lower the bar of accountability that many have fought to raise.

This continuous nonfeasance only serves to embolden others to invite Mr Al Bashir to their territory, safe in the knowledge that there will be no consequences from this Council for such breaches,” said Bensouda to the Council. In her report, Bensouda also noted that, despite a decrease in the scale of the violence in Darfur,  her office continues to receive reports of unlawful killing of civilians, forced displacement and sexual and gender-based crimes against young girls in particular. Finally, she called upon the Council to demonstrate its commitment to peace and security in Darfur through international criminal justice by urging concrete follow-up action on matters related to outstanding ICC arrest warrants and by providing financial support toward the ICC Office of the Prosecutor’s ongoing investigative activities in the region. (ICC Prosecutor Statement)

Colombia tribunal Pre-Trial Chamber Hearing on Im Chaem Dismissal

On 12 December, the Pre-Trial Chamber (PTC) of the Extraordinary Chambers in the Courts of Cambodia (ECCC) concluded two days of hearings in Case 004/01 against Im Chaem. The hearings concerned an appeal by the Co-Prosecutors against the Closing Order of the Office of the Co-Investigating Judges (OCIJ) regarding the ECCC’s personal jurisdiction. The OCIJ had previously dismissed the charges because Im Chaem was not considered senior enough to be tried by the ECCC, and the PTC will hear submissions from the other parties before determining whether or not it will uphold the OCIJ’s decision. Im Chaem was charged on 3 March 2015 with crimes against humanity for her alleged role as secretary of Preah Net Preah District during the period of the Democratic Kampuchea regime. The case against Im Chaem is the first out of cases 003 and 004 to be heard by the PTC. The closing orders for the other charged persons (Meas Muth, Ao An and Yim Tith) are yet to be finalised. (Phnom Penh Post, Khmer Times, ECCC Press Release)

ICC Pre-Trial Chamber refers Jordan to UN Security Council /Assembly of States Parties for failure to cooperate in arrest of Bashir

On 11 December, the ICC Pre-Trial Chamber delivered its judgment on Jordan’s non-compliance with the Court’s request for the arrest and surrender of Omar Al-Bashir when the Sudanese President attended the League of Arab States’ Summit in Jordan in March 2017. The Court issued arrest warrants for Bashir in 2009 and 2010 in relation to alleged genocide, crimes against humanity including murder, extermination, forcible transfer, torture and rape, and war crimes for attacking civilians and pillaging.  The Court found that the 2005 referral of the situation in Darfur to the Court by the UN Security Council meant that Article 27(2) of the Rome Statute applied to Sudan, such that Bashir could enjoy no head of state immunity. Therefore, Article 98(1) was not applicable and Jordan had an obligation as a State Party to the Rome Statute to execute the Court’s request. Jordan was not entitled to rely on its own understanding of Article 98 to decide not to comply with the request, nor would any immunities have relieved Jordan of its duty to cooperate with the Court. Given that the Court had already articulated the obligations of States Parties with respect to the Bashir arrest warrants, and that Jordan had taken a clear position, the Court decided to exercise its discretion under Article 87(7) of the Rome Statute to refer the matter of Jordan’s non-compliance to the Assembly of States Parties to the Rome Statute and to the Security Council.  (ReutersPTC DecisionICC Press Release)

Assembly of States Parties elects new President and six new ICC judges

The Assembly of States Parties to the Rome Statute held its sixteenth meeting on 4-14 December 2017 in New York. The Assembly elected six judges to the Court for a nine-year term: Tomoko Akane (Japan), Luz del Carmen Ibáñez Carranza (Peru), Reine Alapini-Gansou (Benin), Solomy Balungi Bossa (Uganda), Kimberly Prost (Canada) and Rosario Salvatore Aitala (Italy). When they take office in March 2018, the judiciary will be composed as follows, according to minimum requirements: 13 judges with competence in criminal law and 5 with competence in international law; 12 male judges and 6 female; 5 judges from the Group of Western European and Other States, 4 from the Group of African States, 3 from the Group of Asia-Pacific States, 3 from the Group of Eastern European States, and 3 from the Group of Latin American and Caribbean States. Judge O-Gon Kwon (Republic of Korea) was elected as the President of the Assembly for three years from 15 December 2017. Other matters on the agenda were the election of six members of the Committee on Budget and Finance, proposals to amend the Rome Statute and the activation of the Court’s jurisdiction over the crime of aggression. (ICC Press ReleaseICC Election Results)

ICC Pre-Trial Chamber orders prosecutor’s office to submit further information on potential crimes by international forces in Afghanistan

On 8 December, the Pre-Trial Chamber of the ICC ordered the Prosecutor to submit additional information concerning allegations that were attributed to special forces of several states operating in Afghanistan.  The Chamber noted the Prosecutors determination that in ‘most incidents’ where there were civilian casualties, the harm was incidental. The Chamber recognised the suggestion however, that there were some incidents where crimes fell within the jurisdiction of the Court. The Chamber ordered the Prosecutor to provide information that clarifies these determinations.  On 20 November 2017, the Prosecutor submitted her “Request for authorisation of an investigation pursuant to article 15”. The request contained allegations of torture and cruel treatment, use of black sites, and sexual violence, committed by the US military among others. (ICC PTC).