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International Criminal Law Cases: Prosecutor v. Bahar Idriss Abu Garda and Duško Tadić, Apuntes de Derecho Europeo

Nova UniversitasDerecho Europeo

Information on two cases of international criminal law: The Prosecutor v. Bahar Idriss Abu Garda regarding the conflict in Darfur, Sudan, and the case of Duško Tadić, a former Bosnian Serb paramilitary leader accused of crimes during the Bosnian conflict. details on the charges, the trial judgement, and the appeals in each case.

Qué aprenderás

  • What crimes was Abu Garda accused of committing in the Darfur conflict?
  • What were the specific charges against Duško Tadić in the Bosnian conflict?
  • Who were the parties involved in the conflict in Rwanda, and what laws were applicable?

Tipo: Apuntes

2019/2020

Subido el 10/02/2020

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CASES OF INTERNATIONAL CRIMINAL LAW
CASE OF THE PROSECUTOR V.BAHAR IDRISS ABU GARDA
FACTS:
•Conflict in Darfur between the Government of Sudan and several organised armed groups.
•29 September 2007 : Attack against the African Union
•Who? Splinter forces of JEM, under the command of Abu Garda jointly with the troops
belonging to another armed group.
WHO IS ABU GARDA?
•Abu Garda is a Sudanese citizen of Zaghawa origin.
•He served as Vice President, the second-in-command, of the Justice and Equality Movement
(JEM).
• He is currently the chairman of the United Resistance Front (the "URF"), established in
January 2008.
•He is the first person to appear voluntarily before the International Criminal Court and the
first person to appear before the Court in relation to the war in Darfur. He denies the
accusations against him.
How many crimes has Abu Garda been accused?
•Violence to life in the form of murder, whether committed or attempted, within the meaning
of article 8(2)(c)(i) of the Statute.
•Intentionally directing attacks against personnel, installations, material, units or vehicles
involved in a peacekeeping mission within the meaning of article 8(2)(e)(iii) of the Statute.
•Pillaging within the meaning of article 8(2)(e)(v) of the Statute.
Why the case has been brought before the international criminal court with reference to art. 17 of
the statute of Rome
Decision of the Court:
•The concept of co-perpetration
•The objective requirements common to both co-perpetration
•There was an agreement or common plan among Mr Abu Garda and other senior
commanders to attack the MGS Haskanita or not?
•The First Meeting.
•The Second Meeting.
•Conclusion
•Mr Ahu Garda directly issued orders to the combined forces and through other unit
commanders to attack the MGS Haskanita or not?
•The Chamber will analyse the Prosecution's allegations that:
•Prior to the attack on the MGS Haskanita, Mr Abu Garda had split from the main JEM
movement
•Following this split, Mr Abu Garda gained control of an organised group
•This group under Mr Abu Garda's control attacked the MGS Haskanita on 29 September
2007.
The Chamber declines to confirm the charges against Mr Bahar Idriss Abu Garda
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CASE OF THE PROSECUTOR V.BAHAR IDRISS ABU GARDA

FACTS:

  • Conflict in Darfur between the Government of Sudan and several organised armed groups.
  • 29 September 2007: Attack against the African Union
  • Who? Splinter forces of JEM, under the command of Abu Garda jointly with the troops belonging to another armed group. WHO IS ABU GARDA?
  • Abu Garda is a Sudanese citizen of Zaghawa origin.
  • He served as Vice President, the second-in-command, of the Justice and Equality Movement (JEM).
  • He is currently the chairman of the United Resistance Front (the "URF"), established in January 2008.
  • He is the first person to appear voluntarily before the International Criminal Court and the first person to appear before the Court in relation to the war in Darfur. He denies the accusations against him. How many crimes has Abu Garda been accused?
  • Violence to life in the form of murder, whether committed or attempted, within the meaning of article 8(2)(c)(i) of the Statute.
  • Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a peacekeeping mission within the meaning of article 8(2)(e)(iii) of the Statute.
  • Pillaging within the meaning of article 8(2)(e)(v) of the Statute. Why the case has been brought before the international criminal court with reference to art. 17 of the statute of Rome Decision of the Court:
  • The concept of co-perpetration
  • The objective requirements common to both co-perpetration
  • There was an agreement or common plan among Mr Abu Garda and other senior commanders to attack the MGS Haskanita or not?
  • The First Meeting.
  • The Second Meeting.
  • Conclusion
  • Mr Ahu Garda directly issued orders to the combined forces and through other unit commanders to attack the MGS Haskanita or not?
  • The Chamber will analyse the Prosecution's allegations that:
  • Prior to the attack on the MGS Haskanita, Mr Abu Garda had split from the main JEM movement
  • Following this split, Mr Abu Garda gained control of an organised group
  • This group under Mr Abu Garda's control attacked the MGS Haskanita on 29 September

The Chamber declines to confirm the charges against Mr Bahar Idriss Abu Garda

RWANDA. THE PROSECUTOR VS JEAN-PAUL AKAYESU

 The Tribunal was established by the United Nations Security Council by its resolution on 8 November 1994.  The Tribunal has the power to prosecute persons responsible for serious violations of international humanitarian law, committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other violations committed in the territory of the neighbor States, between 1January and 31 December 1994.

1. WHO WAS JEAN PAUL AKAYESU? Born in 1953 in Taba commune Served as bourgmestre of Taba commune from April 1993 until June 1994. Had exclusive control over the communal police, who was responsible for the execution of laws and regulations as well as the administration of justice. 2. CHARGES On 2 September 1998, Trial Chamber I found the accused guilty 9 out 15 counts charging him: Guilty of genocide (count 1), Guilty of direct and public incitement to commit genocide (count 4) Guilty of crimes against humanity (Counts 3, 5, 7, 9, 11, 13 and 14).  Count 1: Genocide;  Count 3 and 5: Crimes against Humanity (murder);  Count 4: Direct and Public Incitement to Commit Genocide.  Also in April, AKAYESU took 8 detained men from the Taba bureau commune and ordered military members to kill them with clubs, matches, small axes and sticks in front of the bureau commune.  AKAYESU ordered the local people and military to kill intellectual and influential people. As the consequence, five teachers from the secondary school of Taba were killed on his instructions, they were killed with matches and agricultural tools in front of the Taba bureau commune.  COUNT 7 and COUNT 9: CRIMES AGAINST HUMANITY (murder)  In the conduct of housing searching,  Victim V, were interrogated and beaten with rifles and sticks in the presence of Mr. AKAYESU. He personally threatened to kill the husband and the child of Victim U if she did not provide him with information he was seeking.  He also ordered the interrogation and beating of Victim X whose fingers were broken as he tried to shield himself from blows with a metal stick.  Female displaced civilians were regularly taken by armed local military or commune police and subjected to sexual violence, beaten on or near the bureau commune.

APPEAL

 Accused  The Accused lodged an appeal against the sentence. He raised eleven grounds of appeal in total. He submitted that:  He had been denied the right to be defended by counsel of his own choice and to defend himself in person.  The tribunal was biased and lacked independence  He challenged the legality of his detention and appealed against the sentence imposed on him.  The Prosecutor Advanced four grounds of appeal. Grounds 1 and 2 challenged the Trial Chamber's analysis of Article 4 of the Statute; ground 3 concerned the Trial Chamber's interpretation of Article 3 of the Statute, while ground 4 related to the analysis of Article 6(1) of the Statute.  And The Appeals Chamber noted that no certain persons be shall exonerated from individual criminal responsibility for a violation of common Article 3 as given in specific category in the Trial Judgement.  In the Judgement, the Trial pointed out who can be held responsible for serious violation of Common Article 3 and Additional Protocol II “the category of persons to be held accountable in this respect, would in most cases be limited to commanders, combatants and other members of the armed forces”.  The Appeals Chamber finds that the Trial Chamber erred on a point of law in restricting the application to a certain category of persons, because this may cause a wrong precedent application of common Article 3 and also Article 4 of the Statue. CASE OF DUŠKO TADIĆ  Born in Yugoslavia, is a former politician and member of the Bosnian Serb paramilitary forces  He was accused for some crimes during the Bosnian conflict, that took place in Bosnia and Herzegovina between 1992 and 1995, after the breakup of Yugoslavia  In 1992 a group of Bosnian Serb paramilitary forces occupied the region of Prijedor in Bosnia-Herzegovina  On 25 May 1992 the Serb forces deported many Bosnian Muslim and Croat locals and confined them into:  The OMARSKA detention camp Indictments Individual criminal responsibility (article 7) on 31 counts (including seizure, murder, abuse, torture and various other crimes) grouped in: ▣ Grave breaches of the Geneva Conventions of 1949

▣ Crimes against humanity ▣ Violations of the laws or customs of war The Defense Duško Tadić pleaded not guilty to all of the accuses. He raised a defense of alibi, claiming that he was somewhere else at the time of the alleged acts. Legal problems of the case ▣ The problem of the legitimacy: is the ICTY a legitimately established Tribunal? ▣ The applicability of the Geneva Conventions: are the victims protected persons under article 4 of the convention? ▣ The problem of the protective measures for the witnesses: have the measures affected the right to a “fair trial”? ▣ The violation of the principle of ne bis in idem Appeals against the veredict  The Defense asserted that the right to a fair trial was violated, as there was no "equality of arms" between the parties  The prosecutor asserted that the victims were protected by the regime of the Geneva Conventions of 1949  On 15 July 1999 the Appeals Chamber rejected the appeal of the Defense, but allowed the appeal of the prosecutor  On 11 November 1999 the Appeals Chamber sentenced Mr. Tadić to 25 years of imprisonment for the additional counts Appeals against the sentence -Mr. Tadić appealed against both the sentences. -On 26 January 2000 the court allowed in part the appeals of the Defense and reduced the penalty from 25 to 20 years of prison. Conclusions During its operations of the ICTY indicted 161 individuals, 19 were acquitted, 37 have seen the charges against them withdrawn or died during process and 83 were convicted After serving his sentence until September 2000 in the Hague, on Tuesday 31 October 2000, Duško Tadić was transferred to a prison in Munich, Germany. He was granted early release from prison on 17 July 2008 and is still living in Serbia. Furundžija case6 March 1992 – the Republic of Bosnia-Herzegovina ("BiH") declared its independence.

The Jokers took Witness A to a house adjacent to the Bungalow, the ‘Holiday Cottage’ where she was detained in a large room in the company of a group of soldiers. The accused arrived at the Holiday Cottage and immediately began to interrogate Witness A about a list of Croatian names and the activities of her sons. Indictment: THE CHARGES COUNT 1: GRAVE BREACH (torture or inhumane treatment) recognised by Article 2(b) of the Tribunal Statue; COUNT 2: VIOLATION OF THE LAWS OR CUSTOMS OF WAR (torture) recognized by Article 3 of the Tribunal Statute. COUNT 3: VIOLATION OF THE LAWS OR CUSTOMS OF WAR (outrages upon personal dignity including rape) recognized by Article 3 of the Tribunal Statute. Amended indictment: the charges

  • COUNT 1 – 2 : UNLAWFUL CONFINEMENT OF CIVILIANS
  • COUNT 3 – 4 : INHUMANE AND CRUEL TREATMENT
  • COUNT 5 – 8 : TORTURE AND MURDER
  • COUNT 9 -11 : TORTURE AND RAPE
  • COUNT 12 : WITHDRAWN WITH THE CONSENT OF THE TRIAL CHAMBER
  • COUNT 13 : VIOLATION OF THE LAWS OR CUSTOMS OF WAR – Torture – Art. 3
  • COUNT 14 : VIOLATION OF THE LAWS OR CUSTOMS OF WAR - outrages upon personal dignity including rape – Art. 3 The Judgement comprises nine sections, including the disposition.
  1. Introduction : Description of the procedural history of the case;
  2. Submission of the parties : Summary of the submissions of the parties in relation to the charges agains the accused;
  3. Existence of armed conflict : Addresses the jurisdictional prerequisites for the application of Article 3.
  4. Link between armed conflict and the alleged facts : Finds a nexus between this armed conflict and the acts underlying the charges.
  5. The events : Overview of the relevant evidence and the arguments of the parties; examine the background and circumstances; reliability of Witness A’s evidence.
  6. The law : Discussion of the elements of each of the offences charged; the Trial Chamber analyzes the content of the various heads under which individual criminal liability may be incurred pursuant to Article 7 of the Statute.
  7. Legal findings : Legal findings of the Trial Chamber with respect to each of the charges against the accused in the Amended indictment.
  1. Sentencing : The Trial chamber considers that the imposition of sentence must take account of various mitigating and aggravating factors.
  2. Dispositions LEGAL ARGUMENTS THE INDIVIDUAL CRIMINAL RESPONSIBILITY OF THE ACCUSED
  3. The accused may be held individually responsible for his participation in the alleged crimes pursuant to Article 7 (1):
  4. "A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles. 2 to 5 of the present Statute, shall be individually responsible for the crime."
  5. Such liability can be established by showing that the accused intent to participate in the crime and that his act contributed to its commission. The contribution does not necessarily require participation in the physical commission of the crime, shown to have been intentionally present at a location where unlawful acts were being committed
  6. The Prosecution argues that the accused’s alleged acts of encouragement, and his omissions, were sufficient to trigger his individual criminal responsibility under Article 7 for the crimes alleged.
  7. VIOLATIONS OF COMMON ARTICLE 3 OF THE GENEVA CONVENTIONS OF 1949 (TORTURE)
  8. His alleged acts constitute the crime of torture, as recognized in article 3 common to the four Geneva Conventions of 1949. His conduct under the factual circumstances alleged, the accused, acting in an official capacity as a uniformed soldier on duty, intentionally inflicted severe physical or mental pain or suffering on Witness A, a non-combatant, during an interrogation for the purpose of obtaining information and for the purpose of intimidation, thereby committing torture.
  9. VIOLATIONS OF ADDITIONAL PROTOCOL II OF 1977 (OUTRAGES UPON PERSONAL DIGNITY INCLUDING RAPE)
  10. The accused is individually criminally responsible for the alleged acts under article 4(2)(e) of Additional Protocol II which prohibits
  11. "outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault".
  12. By his interrogation of Witness A, a non-combatant in the hands of an adverse party during a conflict, throughout which she was "maintained in a state of, forced nudity", "obligated to submit to several sexual assaults", and was "humiliated by attacks on her personal, including sexual, integrity", the accused committed outrages upon personal dignity, within the meaning of article 4(2)(e) of Additional Protocol II. THE DEFENCE
  • The Defence contended that the accused is not guilty of the crimes alleged. It was asserted that the accused was not present for any sexual assault on Witness A, and submitted that