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Somali judge reelected to the International Court of Justice

Somali Judge Abdulqawi Ahmed Yusuf has been reelected to the International Court of Justice (ICJ) based in the Hague, the Netherlands.

The prominent lawyer who has been a Member of the Court since 2009 has also held the position of Vice-President since 2015.

He is among the four judges elected after five rounds of simultaneous voting by the UN General Assembly and Security Council on Thursday from an initial pool of six candidates to the 15-Member judicial body of the United Nations.

They were elected by an absolute majority to nine-year terms, starting on February 6 next year. A fifth judge will be elected on Monday after a deadlock between two candidates on Thursday.

Judge Abdulqawi Ahmed Yusuf is one of three Members of the Court from Africa including Judge Mohamed Bennouna from Morocco and Judge Julia Sebutinde from Uganda.

Five seats of the 15-Member judicial body come up for election every three years.

Judge Abdulqawi Ahmed Yusuf, before his election in 2009, served as Chief Legal Counsel to various international organizations including UNESCO and UNIDO.

He studied law in Somalia and has authored more than 7 books and over 50 articles in various fields

He studied law in Somalia and has authored more than 7 books and over 50 articles in various fields of public international law.

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Libyan lawyers welcome ICC prosecutor Bensouda’s promise to finally…

The commitment International Criminal Court (ICC) chief prosecutor Fatou Bensouda gave to the UN Security Council that in 2018, that she really would be getting on with investigating and prosecuting Libyan war crimes, has been welcomed by Lawyers for Justice in Libya (LFJL).

The organisation, which has been among the frequent international critics of Bensouda and the inability of the ICC to get to grips with prosecutions of Libyan war criminals, praised her determination. It observed that this was the 13th time that Bensouda had spoken to the Security Council about Libya.

“We hope that the prosecutor’s comments will serve as a much-needed reminder to actors involved in the commission of the ongoing atrocities in Libya that the international community is watching and stands ready to take action” said LFJL director El ham Saudi, What is needed now is a concerted effort for collaboration between the ICC, states and civil society to ensure that the ICC has the resources, access and reach to ensure that its mandate reaches the ground”.

Saudi noted Bensouda’s comments to Security Council members on the principle that military commanders had responsibility for the actions of their subordinates and that, under the Rome Statute that established the International Criminal Court (ICC), they could be held liable for crimes that subordinates committed.

Saudi said the LFJL welcomed Bensouda’s “unequivocal call for greater cooperation from Libya” to ensure the arrest of war crimes suspect Saiqa Special Forces major Mahmoud Al-Warfali.

She said justice was key to achieving sustainable peace: “Accountability for serious crimes and respect for the rule of law must form the cornerstone of the ongoing political dialogue if Libya is to achieve peace, stability and security”.

Source: Libya heraldhttps://www.libyaherald.com/2017/11/11/libyan-lawyers-welcome-icc-prosecutor-bensoudas-promise-to-finally-focus-on-libya/

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BENUE STATE GOVERNOR THREATENS TO SEEK PROTECTION OF ICC…

MAKURDI—Governor Samuel Ortom of Benue State has reiterated his commitment to approach the International Criminal Court, ICC, at The Hague, to have Benue people protected from herdsmen attacks as the Open Grazing Prohibition Law comes into effect today.
Addressing thousands of Benue people, including youths and non-indigenes resident in the state under the aegis of Street Movement Against Ravages in Benue, during a solidarity/sensitisation walk to mark the end of open grazing in the state, the governor said he will not renege on his avowed determination to protect the lives and properties of the people. Gov Samuel Ortom Represented by his Deputy, Mr. Benson Abounu, Governor Ortom said: “As a law-abiding government that believes in the constitution of the Federal Republic of Nigeria, we will not shy away from our responsibilities to protect the lives of all the inhabitants of Benue State against any forceful perpetration of criminal injustices. “That is why this law came into being, And from November 1 (today), the law will come into full force because for close to five years herdsmen killed thousands of Benue people and it was almost becoming a pogrom. “If it means going to the International Criminal Court at The Hague, talking to people, sensitising, singing and shouting, this government will go the whole hog to protect the lives and properties of our people.” Yoruba, Hausa, Igbo communities back Ortom Earlier, speaking on behalf of the Benue Youths Forum, Mr. Daniel Nyikagh, who declared the support of all Benue youths for Governor Ortom, said: “The law is the panacea to the pogrom we witnessed in our state; it is not intended to chase anyone away, but to ensure peaceful coexistence. Speaking on behalf of displaced persons, Reverend Father Solomon Mffa, said: “President Muhammadu Buhari must speak out against the activities of herdsmen in the country, because the killing of innocent persons is worst than corruption.”

The leaders of Igbo, Yoruba and Hausa communities, who spoke at the occasion, pledged their support for Ortom, the law and its full implementation. Many of the participants bore placards with inscriptions such as ‘No more wild grazing in Benue,’ ‘Benue people stand with Governor Samuel Ortom,’ ‘Herdsmen respect our laws,’ ‘We are tired of burying our people’ and ‘Open grazing prohibition law is for peaceful coexistence.’

Read more at: https://www.vanguardngr.com/2017/11/grazing-law-takes-effect-today-well-head-icc-protect-benue-people-herdsmen-ortom/

 

 

 

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Burundi-ICC: The legal consequences of opening of the investigation…


1. Background

 

Since Nkurunziza Pierre’s decision to run for a third term in violation of the constitution and the historic Arusha peace and reconciliation agreement of Burundi, in April 2015, Burundi has been plunged into an unprecedented crisis with an escalating violence. According to estimates by the Office of the United Nations High Commissioner for Human Rights (OHCHR), between 26 April 2015 and 30 August 2016, at least 564 cases of executions have been registered. By the end of April 2016, the OHCHR office in Burundi had documented 36 enforced disappearances, 3477 arbitrary arrests or detentions, 651 cases of torture and 19 cases of sexual violence since the beginning of the crisis.

Burundi has been a State party to the Rome Statute since 1 December 2004. The International Criminal Court (hereinafter referred to as the ICC) has jurisdiction over crimes against humanity, crimes of genocide and war crimes committed on territory of Burundi or by Burundian nationals as from that date.

The evolution of the situation in the country has thus legitimately attracted the attention of the ICC Prosecutor who twice expressed his concerns about the Preliminary examination is the initial phase of any proceeding before the ICC, in which the ICC Prosecutor’s Office determines “whether there is a reasonable basis for initiating an investigation”

The reaction of the Burundian state was not long in coming and on October 7, 2016, he announced his intention to withdraw from the Rome Statute. On October 12, 2016, the two Houses of Parliament of Burundi had already passed the bill of withdrawal, in an unprecedented rush, President Nkurunziza promulgated the law on October 18, 2016. On October 27, 2016, Burundi officially notified its withdrawal to the Secretariat United Nations.

In the past, threats of such action have not been lacking, but so far no state has so clearly demonstrated its willingness to complete the withdrawal. However, following the steps taken by Burundi on 21 October 2016, South Africa expressed the same desire and the day itself became the first country to formally withdraw from the Rome Statute, 11 opening the door to a “Domino effect”. Indeed, this road has already been undertaken by The Gambia, which announced its intention to withdraw on 25 October 2016. Fortunately, it recanted itself in favor of the change of institutions that took place in that country with the overthrow of the President Yahya Jammeh,

 

The South African justice also invalidated the government’s decision to withdraw from the Rome Statute, to say that ultimately only Burundi actually withdrew

The purpose of this contribution is to explore the legal consequences of Burundi’s withdrawal from the Rome Statute of the ICC on the current preliminary examination and the possible continuation of the proceedings, by analyzing the relevant provision of the Rome Statute (1). °). It aims to probe the avenues that are opening up in such a situation, including the possibility of continuing the preliminary investigation and the initiation of the investigation itself. This despite the expiration of a period of one year after notification of withdrawal to the Rome Statute. It will finally question the future of the international justice system based on the ICC, once the ICC does not use its prerogatives to prosecute the perpetrators of serious crimes committed in Burundi since April 2015

  1. The possibility for Burundi to withdraw to the Rome Statute

The Rome Statute expressly provides for the possibility of a State withdrawing from the treaty and specifying its terms and limitations. According to what Art. 127 (1), “Any State Party may, by written notification to the Secretary-General of the United Nations, withdraw from this Statute”.

Burundi’s withdrawal from the International Criminal Court responds to a wish of the African Union because it deems it biased. But the withdrawal can not be formulated by the set of States, because the accession was made individually and the withdrawal is done individually

Art. 127 (1) goes on to say that “the withdrawal takes effect one year after the date on which the notice was received, unless the notice provides for a later date”. Thus, only from the receipt of the withdrawal instrument the period of one year begins to run. The withdrawal will not be effective for Burundi until 27 October 2017. Until the expiry of the deadline, Burundi remains a State party  with all the obligations arising therefrom..

The South African court also invalidated the government’s decision to withdraw from the Rome Statute, which means that only Burundi has effectively withdrawn.

  1. The consequences of the Withdrawal from Burundi to the Rome Statute

According to Art. 127 (2), the withdrawal “shall not relieve the State of its obligations under the … Statute while it was a Party, including financial obligations incurred, and shall not affect cooperation established with the Court in criminal investigations and proceedings in respect of which the State had a duty to cooperate and which began before the date on which the withdrawal took effect; the withdrawal shall not affect the continuation of the examination of cases which the Court had already begun to consider before the date on which it took effect “.

From this provision we can see many consequences, in particular the obligations incurred by him when he was a party to it, including the financial obligations incurred (1), the obligation to cooperate with the Court in investigations and criminal proceedings in respect of which the State had a duty to cooperate and which began before the date on which the withdrawal took effect (2) and the obligation not to affect in any way the continuation of the examination of cases which the Court had already begun to consider before the date on which it took effect (3)

For the moment allow us to analyze the last two obligations as these are both apparently relevant to the case in this case

The obligation of cooperation with the Court in criminal investigations and proceedings in respect of which the State had a duty to cooperate and which began before the date on which the withdrawal took effect

It can be emphasized here that Art. 127 (2) of the Statute thus provides that the withdrawal does not affect the State’s co-operation obligations arising from criminal investigations and proceedings initiated before the one-year period has expired.

It is clear that the preliminary examination already begun on Burundi is part of the investigation to which Burundi has an obligation to cooperate with the court from beginning to end.

From this obligation to cooperate one can deduce the possibility of continuing the investigation in spite of the delay of one after the notification

Extension of the preliminary examination

This would seem to be the only way that the ICC would undoubtedly continue to exercise its jurisdiction once the withdrawal is executed.  This means that if the preliminary investigation was initiated before the expiry of one year after notification of the withdrawal, Burundi should cooperate from the preliminary phase until the closure of the case, to the judgment of either the conviction or acquittal of the alleged perpetrators of crimes under international law.

The obligation not to affect in any way the continuation of the examination of cases which the Court had already begun to consider before the date on which it took effect

The second paragraph of Art. 127 provides that “the withdrawal shall not affect the continuation of the examination of cases which the Court has already begun to consider” before the withdrawal is effective. The doctrine seems to agree on one point: what the editors of the Statute wished to express with this sentence remains vague.  The preparatory work does not seem to help in this sense.

First, although doubts were expressed,  it might fairly easily be considered that when Art. 127 (2) refers to the “Court”, the Office of the Prosecutor would be understood, in particular because of the use of the term “Court” throughout the Rome Statute. It could also be said that a preliminary examination is indeed an examination of a “matter”. Although the English version of the provision uses the term “matters” to create some confusion, the term “case” is used in many provisions of the Statute to indicate either a specific case.

Thus, in principle, there would be no objection to the possibility that this sentence might legitimize the continuation of the preliminary examination of the situation in Burundi which had begun before the withdrawal of the Statute became effective. Such a result would flow from the “ordinary meaning to be attributed to the terms of the treaty” and would be most consistent with its object and purpose.

However, this could be nothing but a simple academic exercise. Indeed, as Whiting correctly noted, as soon as the one-year period expires without an “investigation or criminal proceeding” within the meaning of the second paragraph, Burundi would no longer have the “duty to cooperation “under Chapter IX

Would the result change if an application for authorization to initiate an investigation by the Prosecutor acting proprio motu, submitted before the withdrawal took effect, namely on 27 October 2017, would be pending before the Pre-Trial Chamber?

An unambiguous answer can not be given. It can certainly be maintained that under the last sentence of Art. 127 (2), the withdrawal may not affect the further consideration by the Pre-Trial Chamber of the application for leave to commence an investigation. But if a positive decision of the Chamber does not intervene before the withdrawal of Burundi is effective, the fate of the investigation remains uncertain. According to Kolb, “a State which has freed itself from its treaty obligations can no longer be obliged to cooperate in an investigation or proceedings initiated after the date on which its withdrawal took effect”

  1. General international law: a means of supporting the court to open the investigation despite the end of one year after notification of the withdrawal of Burundi to the Rome Statute

In support of the second paragraph of Art. 127, one might be tempted to resort to general international law,  including relevant customary law, as codified by the 1969 Vienna Convention on the Law of Treaties (hereinafter CVDT)

Art. 70 of the CVDT provides that “Unless the treaty otherwise provides or the parties otherwise agree, the fact that a treaty has terminated under its provisions or in accordance with this Convention: (b) does not affect any right, obligation or legal position of the parties created by the execution of the treaty before it has ended ”

According to Clark, under this general rule, the ICC would in no way lose jurisdiction over crimes committed before the withdrawal was effective regardless of whether an investigation had been opened.This argument would be based on the fact that the mere commission of a crime falling within the jurisdiction of the ICC creates “a legal situation of the parties” to which withdrawal can not be infringed.In this way, Clark seems to suggest that the withdrawal ” would have no impact on the ICC’s competence with respect to crimes ex Art. 5 of the Statute allegedly committed on Burundian territory or by Burundians before the one-year time limit expired on 27 October.

Sanctions that may be opened up against other states parties, especially the African Union in the event of non-cooperation Article 86 of the Rome Statute states that “In accordance with the provisions of the present Statute, States Parties shall cooperate fully with the Court in its investigations and prosecutions of crimes within its jurisdiction. “The article states that states parties to the Rome Statute are under an obligation to cooperate fully with the court in the investigation and prosecution of perpetrators of crimes under its jurisdiction. As a result, countries that would act against this provision would be subject to sanctions, as was the case in countries such as Chad and Malawi, which were sanctioned by the Court for breaching their legal obligation to arrest and surrender El BECHIR to the Court

  1. Towards the collapse of the international justice system

The case of Burundi could set a potentially very dangerous precedent for the international justice system based on the Rome Statute. Beyond the question of the mass withdrawal of African States from the Statute, which is a very questionable question outside the scope of this note, the Burundian case might suggest to other States that face (or will face) a preliminary consideration that it would be sufficient to withdraw immediately from the Rome Statute so that the initiation of an investigation could be effectively avoided. Indeed, as stated above, the Prosecutor may initiate an investigation before the withdrawal takes effect

It should be recalled that, in order for the Prosecutor to initiate an investigation on his or her own initiative, once it has concluded that there is a reasonable basis for proceeding, it is required to “submit to the Pre-Trial Chamber an application for leave to do so  “. As stated above, this request will probably not be sufficient for the Court to retain its jurisdiction: a positive decision authorizing the initiation of the investigation would seem necessary.

But the Prosecutor would not need such permission from the Pre-Trial Chamber if other actors of the international community, such as other States parties to the Rome Statute or the UN Security Council, responsibility for the fight against impunity in recalcitrant countries.

Although until then the States parties to the Statute have only referred cases directly affecting them, under Art. 14 of the Statute, a State Party may properly refer to the Prosecutor a situation such as that prevailing in Burundi. Once determined that there would be a reasonable basis for initiating an investigation, the Prosecutor could proceed without the need for prior judicial review by the Pre-Trial Chamber.

Alternatively, responsibility could be assumed by the United Nations Security Council. Acting under Chapter VII of the Charter of the United Nations, the Security Council may also refer a situation to the ICC and no authorization would be required for the initiation of an investigation. Today, this approach has been initiated only for the situation in Darfur (Sudan) in 2005 and for the situation in Libya in 2011.

 

 

Source: Burundi Coalition on the ICC

 

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Kenya: ICC Has Raila-Kalonzo Probe Petition, Will Issue Verdict

Nairobi — The International Criminal Court (ICC) has acknowledged receipt of a petition seeking to have it investigate National Super Alliance (NASA) presidential candidate Raila Odinga and his running mate Kalonzo Musyoka for incitement.

In a response to the petition filed by a Canadian lawyer David Jacobs, the ICC’s Head of Information and Evidence Unit, Mark Dillon, said ICC will consider the application in accordance with provisions of the Rome Statute.

“This communication has been duly entered in the Communications Register of the Office. We will give consideration to this communication, as appropriate, in accordance with provisions of the Rome Statute of the ICC,” Dillon wrote in a letter dated October 17.

“Please note this acknowledgement letter does not mean an investigation has been opened, nor that an investigation will be opened by the Office of the Prosecutor,” Dillon added while noting that the petitioner will be informed in writing, with reasons provided on why a decision to commence investigations against the two NASA leaders would have been reached, or otherwise.

In the petition, lawyer Jacobs acting for International Policy Group (IPG) argued that Odinga and Kalonzo intended to commit crimes against humanity while citing incidences in which they are said to have made utterances meant to radicalize NASA supporters.

“We have strong grounds to assert that Raila Odinga, Kalonzo Musyoka and their cohorts in NASA are planning to plunge Kenya into violence in pursuit of political power,” the petition backed by the IPG’s Chairperson Kenneth Orengo and the Secretary Martin Nkari reads.

According to IPG, the global networks the two NASA leaders have coupled with their clout as former senior government officials could make it difficult for any cases to be instituted, with their supporters likely to turn violent.

The petitioner cited a particular incident in which Odinga and Kalonzo are accused of having incited indigenous Kajiado residents against non-Maasai’s living in their midst on claims that they had invaded ancestral land belonging to the Maasai community.

“There is reasonable basis to believe that Raila Odinga and Kalonzo Musyoka, as principal conspirators and part of a criminal organization and enterprise referred to as NASA, have intended to incite and instigate the crimes of murder, torture, persecution, forceful evictions, rape and damage to public and private property of innocent Kenyan citizens and residents who do not belong to the Maasai tribe in Kajiado County,” the petitioner states.

NASA lawyers led by Siaya Senator James Orengo have however stated since the filing of the application became known to the public that they were ready to face any court of law to defend Odinga.

This even as Odinga’s Spokesperson Dennis Onyango announced a suspension of daily demonstrations against the Independent Electoral and Boundaries Commission while blaming security agencies for perpetrating injustices against its supporters.

“This is a temporary step to enable the coalition to attend to the supporters who were brutalized and hurt and families that lost loved ones today after police and State-protected goons descended on protesters and NASA leaders,” Onyango said in a statement.

“NASA condemns the unfolding policy of ethnic profiling and use of brutal and lethal force being meted out on protesters,” he added while appealing to human rights groups to “take a keen interest in the atrocities” being committed against its supporters across the country.

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Somalia truck bomb death toll rises to 276

 

Desperate Somalis searched for news of missing loved-ones on Monday, after a massive truck bomb in Mogadishu killed at least 276 people and left 300 injured in the deadliest ever attack to hit the conflict-torn nation.

Residents of the Somali capital, while wearily accustomed to regular bombs and attacks by Islamist militants, have been left stunned by the monster explosion Saturday which gutted surrounding buildings and left victims burned beyond recognition.

A statement from the information ministry on Monday said “276 people were killed in the blast… and 300 wounded were admitted at the different hospitals in Mogadishu.”

The government said it had set up an emergency committee to help relatives find the missing, with a crisis centre in the capital that residents can turn to.

Police official Ibrahim Mohamed told AFP that many of the victims were “burned beyond recognition” in what he described as “the deadliest attack ever.”

Turkey sent a military plane full of medical supplies to Mogadishu on Monday, also evacuating some of the injured for treatment.

The blast occurred at a junction in Hodan, a bustling commercial district which has many shops, hotels and businesses in the city’s northwest. Several experts told AFP the truck was probably carrying at least 500 kilogrammes (1,100 pounds) of explosives.

Abdulahi Nuradin was one of many helping friends and family hunting for news of the missing.

“It has been more than 24 hours now and we don’t have any traces or information about the sister of my friend. We can assume she is dead, with her flesh somewhere amongst the horribly burned dead bodies,” he told AFP.

“We went to several hospitals to seek any information but no to avail, the family is now 99 percent convinced she is dead, I saw so many severed pieces of human flesh at the hospitals, you cannot even look at them,” he added.

– ‘Devastation beyond imagination’ –

Local government official Muhidin Ali said more than 100 bodies who were impossible to identify had already been buried.

“The gruesome dead bodies were displayed at the hospitals for relatives but a few were recognised and most of them not at all, the devastation is something beyond the imagination of humankind,” he said.

There has been no immediate claim of responsibility, but the Shabaab, a militant group aligned with Al-Qaeda, carries out regular suicide bombings in Mogadishu in its bid to overthrow Somalia’s internationally-backed government.

The group has a history of not claiming attacks whose scale provokes massive public outrage.

The previous deadliest assault took place in October 2011, when a truck bomb targeting a government office left 82 dead and 150 injured.

Saturday’s blast, the worst in Somalia’s history, came six years after Shabaab militants were pushed out of Mogadishu by African Union and Somali troops.

While they were also pushed out of major towns across southern Somalia the militants still control rural areas and launch attacks on military, government and civilian targets in Somalia, as well as terrorist raids in neighbouring Kenya.

According to the Nairobi-based Sahan thinktank, at least 723 people were killed and over 1,000 injured in bomb attacks in 2016 in Somalia.

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UN Peacekeeper Killed In Attack on DR Congo Base…

Rebels from a Ugandan-dominated group attacked a UN military base in DR Congo's unstable east, killing one peacekeeper and injuring 12 others, the UN mission said.  By ALAIN WANDIMOYI (AFP/File)

Rebels from a Ugandan-dominated group attacked a UN military base in DR Congo’s unstable east, killing one peacekeeper and injuring 12 others, the UN mission said. By ALAIN WANDIMOYI (AFP/File)

Kinshasa (AFP) – Rebels from a Ugandan-dominated group on Monday attacked a UN military base in DR Congo’s unstable east, killing one peacekeeper and injuring 12 others, the UN mission said.

The attack took place in Beni where UN soldiers have been battling the Allied Democratic Forces (ADF), which is dominated by hardline Ugandan Muslims, a spokesman for the UN mission in the Democratic Republic of Congo said.

Congolese troops had clashed with the rebels in the area on Sunday. The day before, the ADF attacked around 10 motorbike taxis in the locality.

“The Mamundioma base was attacked at 5:30 am (0330 GMT),” the UN mission known by its French acronym MONUSCO said, adding that UN ground and air forces had been deployed in the area.

The UN did not specify the nationality of the dead soldier or the injured.

Rich in precious minerals, the east of DRC has been unstable for 20 years.

Several dozen local and foreign armed groups stand accused of serious rights abuses against civilians, such as rape, killings and abductions.

The ADF has been accused by Kinshasa and the UN mission of killing more than 700 people in the Beni region since October 2014.

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ECOWAS COURT PLEADS WITH NIGERIA TO HEED ITS VERDICTS

The Community Court of Justice of the Economic Community of West African States (ECOWAS) has pleaded with Nigeria and other ECOWAS member states to always heed its verdicts.

Speaking at the official opening of the 2017/2018 legal year of ECOWAS Court in Abuja yesterday, its President, Justice Jerome Traore, noted that the court’s judgements were valueless if not implemented.

The court had ordered the release of a former National Security Adviser, Col. Sambo Dasuki (rtd), being detained by the Department of State Service (DSS), but the order was not obeyed.

However, according to Traore, there could not be judicial efficiency without the enforcement of the court orders.

He said: “Now to talk of judicial efficiency is to talk first of all of justice delivered in reasonable time.

“Our English-speaking friends rightly say ‘Justice delayed is justice denied,’ don’t they? Thus, ‘diligence’ which does not sacrifice serenity on the altar of speed, is without doubt, a guarantee of quality and judicial process.

“Again, to talk of judicial efficiency, is to talk of enforcement of court decisions in the best possible time and in good faith.

The ceremony was attended by the representatives of the Attorney General of the Federation and Minister of Justice, Mr Abubakar Malami (SAN); Minister of the Federal Capital Territory, Muhammad Bello; Minister for State for Foreign Affairs, Khadijat Buka; and the Speaker of ECOWAS Parliament, Mousapha Cisse Lo.

 

Source ; blue print

https://blueprint.ng/respect-our-judgements-ecowas-court-begs-nigeria-others/

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Prosecuting President Duterte On Crimes Against Humanity

In the face of charges of ordering and condoning the murder of thousands of civilians by the Philippine National Police, President Rodrigo Duterte boasts that he is immune from suit. A former prosecutor himself, Duterte touts immunity as an armor.

The Rome Statute  of the International Criminal Court created the first permanent global criminal court to hear and try genocide, crimes against humanity, and war crimes. The Philippines validly ratified the Rome Statute, pursuant to Section 21, Article VII (Executive Department) of the 1987 Philippine Constitution. The Rome Statute entered into force in the Philippines on November 1, 2011.
Its domestic counterpart, the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity (RA 9851) took effect 15 days after its publication in the Official Gazette on December 11, 2009.

Sitting presidents like Duterte can thenceforth be investigated, prosecuted, tried and punished under RA 9851 for war crimes, genocide, or other crimes against humanity before Philippine courts even during their tenure. No impeachment needed. No need for them to finish their term. Those constitute unjustifiable and inexcusable crimes – the gravest forms of human rights violations – and, therefore, absolutely prohibited. The President retains her or his immunity, true; but not for “core crimes” under Art. 5 of the Rome Statute.

RA 9851 purportedly accords immunity to the President, at least during her or his tenure. Under Sec. 9(a), Chapter V (Some Principles of Criminal Liability), the President is supposedly immune from being hauled into court during his or her tenure.

The Rome Statute lacks any provision comparable to the “other than the established constitutional immunity from suit of the Philippine President during his/her tenure” qualifier found in Sec. 9(a) of RA 9851. The Rome Statute’s silence on immunity from suit of heads of state, for “core crimes” punishable under Art 5, speaks volumes. This is precisely because no immunity for genocide, crimes against humanity, or war crimes exists.

Rome Statute Art. 27, para. 2 (Irrelevance of official capacity) accords no immunity at all to heads of state because, according to its preamble, such crimes are characterized by “unimaginable atrocities that deeply shock the conscience of humanity”. No immunity for war crimes, crimes against humanity and genocide exists since “such grave crimes threaten the peace, security and well-being of the world”.

Shorn of immunity, heads of state can legally be investigated, prosecuted, tried and punished for these crimes in order “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes”. Breaking the walls of impunity will surely “guarantee lasting respect for and the enforcement of international justice”.

Hence, the Rome Statute provides that immunities “shall not bar the Court from exercising its jurisdiction over such a person.” Instead of according heads of state with immunity, the Rome Statute seeks to destroy impunity. Non-immunity of heads of state from criminal prosecution deters the commission of mass atrocities.

The Rome Statute’s Art. 27 collides with Sec. 9(a) of RA 9851 on presidential immunity from suit for the worst international crimes. Having been a later act of both the President and the Senate, the Rome Statute ratification expresses the latest, specific intent of the President and the Senate – on behalf of the Philippine state – for the President to be legally bound by the Rome Statute, including its Art. 27 provision on the “[i]rrelevance of official capacity”. This later act of ratifying the Rome Statute effectively nullifies the immunity from suit, under Sec. 9(a) of RA 9851, of the President insofar as those crimes are concerned, assuming arguendo that such immunity was valid in the first place.

Furthermore, the Philippine ratification of the Rome Statute indicates the intent on the part of the state to further achieve its purpose in enacting RA 9851 into law. In light of RA 9851’s primary aim and purpose in Sec. 2(e) (Declaration of Principles and State Policies), the proper statutory interpretation then must be that, in ratifying the Rome Statute, the Philippine President and the Senate concurrently intended to reinforce and strengthen RA 9851 by removing any presidential immunity from suit for crimes under RA 9851. This, in order to achieve both RA 9851’s and the Rome Statute’s fundamental objective “to put an end to impunity for the perpetrators of these crimes and thus contribute to the prevention of such crimes” (Sec. 2[e], RA 9851).

The Philippines’ ratification of the Rome Statute reflects the subsequent and latest will of the state, as expressed through the President’s signing of the Rome Statute’s instrument of ratification with the subsequent concurrence of the Philippine Senate on August 23, 2011. The effective ratification of the Rome Statute supersedes and repeals Sec 9(a) of RA 9851. It shows its intent to fully carry out and fulfill the Philippine state’s obligation under the Rome Statute and its RA 9851 domestic counterpart to end impunity.

The incorporation clause of the 1987 Constitution (Sec. 2, Art. II) also renders nugatory the presidential privilege of immunity stated in Sec. 9(a) of RA 9851 for being violative of jus cogens principles or peremptory norms of customary international law. The Constitution’s “generally accepted principles of international law” include customary international law, comprising uniform and consistent state practices performed out of a sense of legal obligation. The Rome Statute also embodies jus cogens or peremptory norms of customary international law which are non-derogable. Those cannot be deviated from under any and all circumstances at all times, anywhere in the world. Jus cogens norms prohibit slavery, genocide, torture, crimes against humanity and war crimes.

RA 9851’s presidential immunity from suit is therefore void ab initio. Heads of state have no immunity for war crimes, genocide and crimes against humanity, as established in the Nuremberg judgment [PDF] and the Pinochet decision in Regina v. Bartle. Such “exception” is tantamount to according impunity to sitting presidents for these most egregious forms of international crimes. It’s incompatible with jus cogens or peremptory norms of customary international law.

Source: jurist news http://www.jurist.org/forum/2017/10/perfecto-caparas-president-duterte.php

 

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ICC holds two-day psychosocial conference of experts on protecting…

 

 The International Criminal Court (ICC) hosted a conference on protecting vulnerable groups in witness protection from 4 to 5 October 2017. It was the 4th psycho-social conference of the Europol Network in Witness Protection and was attended by psychological experts from 35 countries and international organizations.

At the conference opening, ICC Vice President and Judge Joyce Aluoch spoke of her first-hand experience throughout her judicial career of witnesses making essential contributions to evidence in cases, and the need for those witnesses to receive adequate psycho-social support.

“As a judge,” she said, “I experienced myself the importance of strong protection and support of vulnerable witnesses. Many witnesses were only able to testify about their often horrific ordeal when they were given the necessary psychological support and protection before, during and after testimony. As a Chamber, we benefitted from the psychological assessments of witnesses and the expert advice provided to us by the psychologists in the Registry, especially whenever questions arose about the well-being of witnesses and their ability to testify. Thanks to the psycho-social support and tailor-made special measures, victims of sexual violence were able to provide strong evidence in court.”

Several visiting experts chaired keynote sessions, including Professor Frank C. Verhulst on the psychological assessment of children, Dr Erik de Soir on secondary traumatisation, and Clinical Psychologist and Psychotherapist Simone de la Rie on the psychological assessment and support of refugees, war victims and other vulnerable groups.

Throughout the two-day conference, best practices were shared and recommendations made among ICC experts,  visiting scholars and practitioners regarding psychological assessments and interventions in the context of witness protection programmes.. With a focus on supporting vulnerable witnesses, working groups addressed assessment of children, family support, forensic aspects in witness protection, staff welfare models, and monitoring and supporting vulnerable witnesses during the trial phase. Case studies from different countries also offered insight into alternative protection measures.

The ICC Rome Statute provides for witness protection, including psychological well-being. Article 68 of the Rome Statute states “The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses.”  According to article 43, measures can include “protective measures and security arrangements, counselling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses.” It also specifically stipulates that the Registry’s Victims and Witnesses’ Section shall include “staff with expertise in trauma, including trauma related to crimes of sexual violence.”

 

Source : ICC