Ante Gotovina case: an error of law which led to innocence?

The breakup of the Socialist Federal Republic of Yugoslavia 30 years ago still has a substantial impact on the post-Yugoslav countries which proclaimed independence. Bearing in mind that the breakup also generated a military conflict, e.g. in Croatia, the restoration of Serbian-Croatian relations remains problematic. One of the challenges is passing a fair judgment on people responsible for war crimes or crimes against humanity. The International Criminal Tribunal for the former Yugoslavia (ICTY) was established for this reason in particular. Ante Gotovina – a Croatian general, was one of those indicted by the International Criminal Tribunal for the former Yugoslavia in connection with the military operation “Oluja” during which some heinous acts of crime took place. Gotovina played a clear and primary role in this operation, and therefore his actions were the main count of the indictment, firstly, for the prosecution and then for the Trial Chamber of ICTY. However, the sentence of 24 years imprisonment was never carried out following a successful appeal. The Appeals Chamber did not uphold the verdict of the Trial Chamber owing to a serious legal error and, consequently, it acquitted Gotovina of all the charges. This issue became yet another source of Serbian-Croatian conflict in connection with the most important people held responsible for the crimes committed in 1991-1995.

PRE-TRIAL CHAMBER. FINDING THE NULLITY OF THE INDICTMENT AND OF THE CRIMINAL PROSECUTION ACTS DUE TO THE BREACH OF THE DEFENDANT'S RIGHT OF DEFENCE

The purpose of this paper is to analyze the limits within which the judge of the pre-trial chamber may order the restitution of the case to the prosecutor, starting from a concrete deed that was the subject of case file no. 5609/245/2018 / a1 pending before the Iaşi District Court and the Iaşi County. In this case, the Pre-Trial Chamber judge considered that the suspect was not given the necessary time to prepare his defense as he was heard as defendant on the same day when he was also heard as a suspect, although when he was heard as a suspect he requested a break for the preparation of the defense, the report on the termination of the criminal prosecution was drawn up on the same day when he was heard, and his request for a forensic examination in question was rejected by the prosecutor, without the court waiting for the submission of the objectives of the expertise. For these reasons, the pre-trial chamber judge considered that it is necessary to find the nullity of all criminal proceedings subsequent to the date and time when the suspect was heard, as he was deprived of the possibility to enforce his defense during the criminal proceedings, a procedural stage that has been completed.

Situation in the Islamic Republic of Afghanistan

On March 5, 2020, the Appeals Chamber of the International Criminal Court (ICC) decided to authorize the prosecutor to commence a proprio motu investigation into the alleged war crimes and crimes against humanity committed during the Afghanistan War since 2003. This decision is the first case where the requirements for the authorization of an investigation under Article 15(4) of the ICC Rome Statute (Statute) were tested on appeal. The case lays down a marker as to how the ICC sees the division of roles between the Pre-Trial Chamber and the Office of the Prosecutor. The Appeals Chamber proved willing to give the prosecutor broad discretion at the investigation stage. Without limiting principles, this approach may eventually expand the role of the Court beyond what the Statute permits.

The International Criminal Court and Israel’s Acts in the Occupied Territories: Progress and Prospects

Following the request of Palestine as a Party-State to the Status of the International Criminal Court, the Prosecutor decided to start a preliminary investigation into the situation of Palestine. The preliminary investigation resulted in a request from the Prosecutor to the Pre-Trial Chamber I for clarification of the Court’s jurisdiction in relation to the occupied territories of Palestine. Many significant issues concerning the status of Palestine as a State and its legal borders were raised during the preliminary investigation, both by the Prosecutor and during the examination of the Chamber. Although both the Prosecutor and the Chamber have approved that the Court has jurisdiction over the Palestinian territories, including those occupied by Israel, the prospect for the success of the trials by the Court depends on the cooperation of the international community as a whole and the State-parties to the ICC Status.

THE INTERNATIONAL CRIMINAL COURT AS A VERITABLE TOOL FOR THE PROTECTION OF THE RIGHTS OF ETHNIC MINORITIES: EXAMINING THE ICC’S DECISIONS REGARDING THE PEOPLE OF ROHINGYA

Notwithstanding obstacles to the power and jurisdiction of the ICC, the judges’ posture is that the court is ever ready to protect ethnic minorities against any form of violations. Regarding the situation of the Rohingya people in Myanmar, the Pre-Trial Chamber 1 and III of the ICC held that the ICC could exercise jurisdiction over Myanmar, a non-party State to the Rome Statute, for the deportation of the Rohingya people to Bangladesh. With these decisions, international observers hope for accountability for those responsible for the crimes committed against the Rohingya people. It examines the applicable law and history of discrimination of the Rohingya people using the descriptive method and then examines the jurisprudence behind these rulings using the analytical method. Finally, this article suggests that the Rome Statute should be consistently interpreted by the ICC judges to advance the Rome Statute’s intention, especially when ethnic minority groups are involved.

Better Late than Never: Reparations for Sexual Violence in the Ntaganda case before the International Criminal Court

The Prosecutor v Bosco Ntaganda case at the International Criminal Court (ICC) represents the long awaited first reparation order for sexual violence at the court. This will hopefully see the implementation of reparations for the war crimes and crimes against humanity of rape and sexual slavery among civilians and former child soldiers, after previous cases such as against Jean-Pierre Bembe and Laurent Gbagbo were acquitted of rape. This article drawing from the author's role as a reparation expert in the case, is a reflection on the challenges of designing and providing reparations at the ICC against convicted individuals, as well as amidst insecurity and the COVID-19 infectious disease pandemic. It begins by discussing how the Ntaganda reparation order expanded reparation principles for the first time since the Lubanga case, in particular for crimes of a sexual nature. This is followed by an outline of some of the harms as a result of sexual violence from the perspective of an expert with a medical background. The analysis then turns to the appropriate reparations in this case and the details contained within the chamber's reparation order. Final conclusions consider how the procedural and substantive elements of reparations in this case will be instructive to future cases that address sexual violence. Ultimately, key insights are offered on the modest contribution an appointed reparation expert can do in assisting a trial chamber in the reparation process.

International Criminal Court (ICC): Dominic Ongwen

On 4 February 2021, the ICC's Trial Chamber IX found Lord Resistance Army's Commander Dominic Ongwen guilty for a total of 61 crimes comprising crimes against humanity and war crimes, including many conflict-related sexual and gender-based violence crimes, committed in Northern Uganda between 1 July 2002 and 31 December 2005. On 6 May 2021, Dominic Ongwen was sentenced to 25 years imprisonment for these crimes.<br/> In this Q&A we discuss this case with three renowned experts, namely Victoria Nyanjura (Survivor, Founder Women in Action for Women Uganda), Joseph Manoba (lawyer and Legal Representative for victims in the Ongwen case) and Lorraine Smith van Lin (independent victim's rights expert). By answering 11 questions, they provide insight in the complexity of this case, including how it is perceived by LRA victims and survivors in Uganda.

“Situation in Palestine” (Int'l Crim. Ct. Pre-Trial Chamber)

On February 5, 2021, the Pre-Trial Chamber (PTC) of the International Criminal Court (ICC) delivered its decision on territorial jurisdiction in the “Situation in Palestine.” The result reflects the controversy surrounding the process and the merits: a divided bench, with a Minority decision three times the length of that of the Majority. The outcome marked the culmination of sustained attempts by Palestinians and their supporters over more than two decades to engage the ICC, beginning with contentious negotiations preceding the vote on the Rome Statute at the Rome Conference and including three preliminary examinations, the third of which concluded with this decision. The Rome Statute, adopted by vote on July 17, 1998, included elements that negotiators acknowledged had never appeared before in international law, and were directed at an Israeli target. For this reason, in large part Israel, which had long supported the principle of an international criminal court, chose not to become a state party to the Statute or to participate in the proceedings.