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Prosecution and Defence Clash Over Standards of Procedural Fairness at the Bangladesh International Criminal Tribunal

Prosecution and Defence Clash Over Standards of Procedural Fairness at the Bangladesh International Criminal Tribunal

By Caroline Macpherson

During the 11th session of the Assembly of States Parties of the International Criminal Court at The Hague, No Peace Without Justice (NPWJ) convened a side event on “The Bangladesh International Crimes Tribunal” (ICT) on 21 November 2012 at the World Forum.

The purpose of the meeting was to discuss the current challenges faced by the ICT in fulfilling its mandate through an independent, fair and impartial judicial process. The meeting was moderated by NPWJ Secretary-General, Niccolo Figa-Talamanca, and speakers included: Advasiful Islam, Prosecutor at the Bangladesh International Crimes Tribunal; Schona Jolly, Bar Human Rights Committee of England and Wales; Ahmed Ziauddin, Professor of International Criminal Law; Mr. Rayhan Rashid from the International Crimes Strategy Forum and Oxford University; and Toby Cadman, Defence Counsel from 9 Bedford Row.

Toby Cadman provides a detailed overview in his paper, The Rome Statute of the International Criminal Court, Complementarity and National Prosecutions- The International Crimes Tribunal Bangladesh, which touches upon, inter alia: lack of transparency; discriminatory intent of the legislation and tribunal; lack of clear definitions of crimes; absence of rules of disclosure; and investigations being conducted under a cloak of secrecy.

A statement entitled Their Backup is million dollar but 3,000,000 is our force was released by members of the International Crimes Strategy Forum following the conference. This statement claims that Toby Cadman’s statements were all false.

Following the conference, NPWJ issued a press release which called on the ICT urgently “to demonstrate its ability and willingness to conduct proceedings with fairness, impartiality and strict adherence to due process and to apply the highest international standards in the enforcement of crimes under international law”. Further, it requested the Government of Bangladesh “immediately and categorically to exclude the death penalty for individuals accused by the ICT and apply in full all due process guarantees, including protection of defence witnesses, potential witnesses and counsel from harassment and intimidation, full application of the presumption of innocence, and all other due process rights, to the highest international standards.”

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International Criminal Law News International News

Article from December 2017 Marks 25 Years of the ICTY

Article from December 2017 Marks 25 Years of the ICTY

At the end of last year an article was published by Dutch Reformed Daily, marking 25 years since the launch of the ICTY (International Criminal Tribunal for the former Yugoslavia). The piece attempts to answer whether the high expectations for the court when it was initially launched in 1993 have been met over two decades later. Steven Kay QC is quoted in the article which can be found below. NOTE: article is in Dutch so will need to be translated to be read in full. https://www.rd.nl/vandaag/buitenland/joegoslavië-tribunaal-van-blijvende-waarde-1.1457025

 

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International Criminal Law News International News

IBA News Release – North Korea: Inquiry finds Kim Jong-un should be investigated and prosecuted for crimes against humanity

IBA News Release – North Korea: Inquiry finds Kim Jong-un should be investigated and prosecuted for crimes against humanity

Warning: graphic information in this report may upset some readers

A new report, authored by three internationally renowned judges – Navanethem ‘Navi’ PillayThomas Buergenthal and Mark B Harmon – under the auspices of the International Bar Association (IBA) War Crimes Committee, calls on the international community to vest in the International Criminal Court (ICC) or a special international tribunal the power to investigate crimes against humanity committed in North Korea’s political prisons, and to hold culpable parties accountable for their crimes, including ‘Supreme Leader’ Kim Jong-un, members of the Workers’ Party of Korea and its Politburo, internal security officials and prison guards. The three judges, who together have served on some of the most consequential international tribunals of the last half-century and include a child survivor of Auschwitz and a former ICC judge, also call on North Korea to dismantle its gulag system and release the estimated 80,000-130,000 political prisoners.

Under established legal doctrine, including the principle of ‘command responsibility’ – hierarchical accountability, where superiors are held responsible for the criminal acts of their subordinates – the report includes evidence that demonstrates Kim Jong-un and other regime officials should be prosecuted for ten of the 11 crimes against humanity enumerated in the Rome Statute (the treaty establishing the ICC), including crimes committed by subordinates such as prison guards. The ten crimes are: murder, extermination, enslavement, forcible transfer, imprisonment, torture, sexual violence, persecution, enforced disappearances and other inhumane acts.

Titled, Inquiry on Crimes Against Humanity in North Korean Political Prisons,the report focuses on evidence of crimes against humanity committed in North Korea’s political prisons, which include systematic murder (including infanticide), torture, persecution of Christians, rape, forced abortions, starvation and overwork leading to countless deaths. Referenced in the report is highly detailed satellite imagery that, alongside testimony of defectors, debunks North Korea’s denial of the existence of its political prisons, described by Amnesty International as ‘very possibly home to some of the most appalling torture in the world’.

The Inquiry is an unofficial follow-up to the United Nations Human Rights Council’s Commission of Inquiry (UN COI) on Human Rights in the Democratic People’s Republic of Korea (DPRK) that, in 2014, published its findings on regime-wide human rights abuses.

During a day-long hearing held in Washington, DC in 2016, Chief Judge Navi Pillay and her fellow judges heard testimony from North Korean defectors, including a North Korean political prison guard and prison camp survivors. They provided graphic testimony of atrocities they witnessed or were subjected to in the political prisons, including accounts of:

  • prisoners tortured and killed on account of their religious affiliation, with officials instructed ‘to wipe out the seed of [Christian] reactionaries’;
  • a prisoner’s newborn baby, fed to guard dogs and killed;
  • an abortion induced by three men standing on a wooden plank placed on a pregnant prisoner’s stomach;
  • a female prisoner losing consciousness after enduring a beating designed to trigger premature labour, with prison officials killing her baby before she could regain consciousness;
  • a prisoner raped by a security officer, after which the officer pushed a wooden stick inside her vagina and beat her lower body, resulting in her death within a week;
  • the deliberate starvation, malnutrition, overwork and death of countless prisoners, including between 1,500-2,000 prisoners, mostly children, who are believed to have died each year from malnutrition in one camp alone, with many other prisoners beaten to death for failing to meet production quotas;
  • a soldier supervising a forced labour site rolling a log down a steep mountainside, killing ten prisoners as they were carrying logs up the mountain;
  • routine public executions of prisoners, carried out in front of both children and adults, designed to subdue the prison population;
  • the execution of starving prisoners found digging for edible plants on a mountainside; and
  • the beating to death of a prisoner for hiding stolen corn in his mouth.

Alongside personal testimonies, the Inquiry drew on other sources of evidence, including scholarly works, videos, transcripts, testimony provided to the UN COI, and the live testimony of two leading experts on North Korea’s network of political prisons and its political system, David Hawk and Kenneth Gause. These and other experts have written about North Korea’s longstanding policy of imprisoning the children, spouse, parents and other family members of a purported violator in order to eliminate the ‘seed’ of three generations of ‘class enemies’.

Following the hearing in December 2016, the Inquiry received a detailed affidavit from Mr Thae Yong-ho, North Korea’s former Deputy Ambassador to the United Kingdom, and its highest-ranking defector in recent years. Mr Thae’s detailed affidavit provided damning testimony about Kim Jong-un and regime officials, and their level of involvement in committing grave human rights abuses.

Among the nine recommendations made by Judges Pillay, Buergenthal and Harmon in the new report are:

  • the dismantlement of the DPRK political prison system and commitment to a new system of fair and transparent justice that affords proper due process to its citizens and acceptance of an international monitoring scheme that ensures the present political prison system remains dismantled;
  • the implementation of safeguards by UN member states to prevent the importation of products produced in the North Korean penal system; and
  • the adoption of carefully targeted, coordinated and multilateral sanctions against individuals deemed responsible for past or ongoing crimes against humanity in the DPRK.

Steven Kay QC, past Co-Chair of the IBA War Crimes Committee and the lead lawyer to present evidence of North Korea’s alleged crimes against humanity at the Inquiry, stated: ‘ North Korea’s network of political prisons has largely eluded the scrutiny of the international community over the decades but, as the number of North Korean defectors swells and accounts of brutal treatment carried out against prisoners are relayed to the outside world, it has become more difficult for the international community to avert its gaze.’ He added: ‘The international community should not be deterred from holding to account the perpetrators, from prison guards to those seated at the apex of power. We need to work to halt the seven-decade reign of impunity.

A discussion of the Inquiry’s findings will take place in Washington DC, today, 12 December, from 9:30am-10:45am at the National Press Club. For more information about the event and/or to register attendance please contact Sosseh Prom at sosseh.prom@int-bar.org.

 

Supplied by the International Bar Association (IBA)

 

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International Criminal Law News

Steven Kay QC on Inquiry Findings Regarding Political Prisons in North Korea

Steven Kay QC on Inquiry Findings Regarding Political Prisons in North Korea

Written by Steven Kay QC

The IBA War Crimes Committee established a team of counsel to prepare a brief for an Inquiry to establish whether the infamous Political Prisons in North Korea called Kwanliso established decades ago by Kim Jong Un’s grandfather were still in existence, under what conditions, who was responsible and whether this was a crime against humanity. It was believed whole generations of families still remained in these isolated camps and the people incarcerated in barbaric conditions had no prospect of release but to remain and die.

Evidence was collected from the IBA Commission on North Korea, defectors from the regime and from experts on the political structures of the state and through satellite imagery that proved the Kwanliso were still in existence and operational. The defectors were former camp guards and controllers of the camps who had escaped from the regime.

A hearing was held before international Judges in Washington DC at which evidence was presented by the War Crimes Committee counsel who examined the defector witnesses and the experts and the satellite imagery. A full brief including evidence and legal argument was submitted to the Judges.

The evidence proved that the political leadership of North Korea that functions through obedience to the Supreme Leader was aware of the existence of the camps, supported their operations and created conditions that were crimes against humanity.

This is an important body of work upon an aspect of the North Korean Regime that was little known because it represented the most horrific treatment of generations of families held isolated in adverse conditions with no prospect of release. Whole families from great gandparents to babies were removed from daily Korean life and placed in 5 designated camp areas with no humane consideration given for their survival.

This Inquiry shines a light upon what happens to ordinary people who have no political voice and no rights including that of survival.

Kim Jong-Un will face a reckoning on a date and at a place in the future where he will have to account for matters for which he is responsible as will those who support him and cary out his orders. There is no defence of following orders available to those who commit crimes against humanity.

Kim Jong-Un is being investigated and this report will form part of the evidence against him. International investigations for universal crimes against humanity use this type of evidence to establish the grounds for bringing a case.

 

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