Has the Pre-Trial Chamber jeopardized the Gbagbo trial at the International Criminal Court?

Beyond The Hague welcomes Matthew Gillett for this guest post on the Gbagbo case at the ICC.  Matthew is currently a Legal Officer with the Office of the Prosecutor at the International Criminal Tribunal for the Former Yugoslavia (ICTY) and was a member of the New Zealand delegation to the Review Conference of the International Criminal Court (ICC) in 2010. The views expressed in this article are those of the author alone and do not necessarily reflect the views of the United Nations, the New Zealand Government or Beyond The Hague. The author would like to thank Manuel Ventura for his insightful comments.

On 12 June 2014, Pre-Trial Chamber I (“PTC”) of the International Criminal Court (“ICC”) issued its conformation decision concerning the charges against the former President of Cote d’Ivoire – Laurent Gbagbo. Problematically, the majority decision of the PTC confirmed the charges for modes of liability under article 25 but declined to confirm the charges for superior responsibility under article 28. This outcome is difficult to reconcile with the PTC’s earlier findings in the confirmation decision. It results in the Trial Chamber receiving a proceeding that has been straight-jacketed into a mould that the facts may not ultimately fit. Indeed, Judge Van den Wyngaert in her dissenting opinion found that the facts were insufficient to satisfy article 25 even on the relatively permissive article 61(7) standard, but she would have confirmed under article 28 in part. In these circumstances, the spectre of regulation 55 re-characterization lurks in the background, along with its attendant potential prejudice to the integrity and efficiency of proceedings.

Laurent Gbagbo at the ICC, photo: Telegraph

Laurent Gbagbo at the ICC, photo: The Telegraph

Under the applicable standard set forth in article 61(7) of the Rome Statute, the PTC assessed whether it had been provided with sufficient evidence to establish substantial grounds to believe that Laurent Gbagbo was responsible for each of the crimes charged. The PTC confirmed the modes of liability ofco-perpetration under article 25(3)(a), ordering, soliciting or inducing under article 25(3)(b), and contributing to a group with a criminal purpose under article 25(3)(d), and committed the case for trial. However, it declined to confirm Gbagbo’s superior responsibility for the charges under article 28(a) or (b) despite the request of the Office of the Prosecutor (“OTP”) to do so.

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“Maidan” v. Yanukovych et al.: Ukraine and the ICC?

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Photo credit: Guardian

Keeping in mind the situation in the streets of Kiev this time a week ago, it is difficult to comprehend the speed of changes taking place in Ukraine over the past few days. The agreement reached last Friday between the opposition and president Yanukovych has now become largely outdated. Point number four, however, remains relevant:

“Investigation into recent acts of violence will be conducted under joint monitoring from the authorities, the opposition and the Council of Europe”

Only yesterday morning we learned that the new Ukrainian authorities issued an arrest warrant for Viktor Yanukovych for “mass murder of peacefully demonstrating citizens”. Today, the Parliament of Ukraine voted in favour of prosecuting former president Viktor Yanukovych, former interior Minister Vitali Zakharchenko and former Prosecutor-General Viktor Pshonka at the International Criminal Court.  Continue reading

Hate Crime Against Humanity? Persecution on the Grounds of Sexual Orientation under the Rome Statute

by Rosemary Grey

Rosemary Grey joins Beyond The Hague today with a post that questions the ‘constructive ambiguity’ of the gender language in Article 7(3) of the Rome Statute and asks whether persecution on the grounds of sexual orientation can be considered a crime under the jurisdiction of the International Criminal Court. Rose is a PhD Candidate at the School of Social Sciences, Faculty of Arts and Social Sciences, University of New South Wales. She can be reached at r.grey@unsw.edu.au and here.

The Sochi Games has focused international attention on Russia’s human rights record, particularly its laws that discriminate and sow prejudice against lesbian, gay, bisexual, transgender or intersex (LGBTI) people. UN Secretary-General Ban Ki-moon nodded at this issue in his address to the Olympic Committee on February 6, stating:

We must all raise our voices against attacks on lesbian, gay, bisexual, transgender or intersex people. We must oppose the arrests, imprisonments and discriminatory restrictions they face.

Ban’s call to action reflects the fact that in recent years, the UN has become increasingly vocal in promoting LGBTI rights. For example in 2011, the Office of the High Commissioner for Human Rights (OHCHR) published its first report on discrimination and violence on the grounds of sexual orientation and gender identity. The report documents targeted killings, rapes, and assaults of LGBTI people, and highlights decisions and general comments of treaty bodies that confirm that discrimination on the ground of sexual orientation is prohibited under international human rights law.[1]  Building on this momentum, in 2013 the Human Rights Office launched the  “Free and Equal” campaign, aimed at combating discrimination against LGBTI people worldwide.

AmsterdamProtest

August 2013 Protest in Amsterdam. Source: AFP

Meanwhile, discrimination against LGBTI people under domestic law continues in many states, and in some places is getting worse. Russia is not an isolated example: several States Parties to the Rome Statute are also moving backwards on LGBTI rights. For example, Uganda, which in 2004 became the first State Party to refer a situation to the ICC and in 2010 had the privilege of hosting the Rome Statute Review Conference, is in the process of enacting legislation that prescribes life imprisonment for people convicted of homosexual acts.  Nigeria, another State Party, has recently enacted anti-homosexuality laws that UN High Commissioner for Human Rights Navi Pillay describes as “draconian.”

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