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Bikindi: The Prosecutor v. Simon Bikindi
Judgement, 2 Dec 2008, International Criminal Tribunal for Rwanda (Trial Chamber III), Tanzania
During the Rwanda genocide, Bikindi was a famous singer and composer, and the leader of a ballet troupe, the Irindiro.
The Prosecution charged Bikindi with six Counts: conspiracy to commit genocide, genocide or, alternatively, complicity in genocide, direct and public incitement to commit genocide, murder and persecution as crimes against humanity.
On 2 December 2008, Trial Chamber III of the ICTR found the Accused guilty of direct and public incitement to commit genocide for his calls to exterminate Tutsi at the end of June 1994 on the Kivumu-Kayone road and acquitted him on all other Counts. The Chamber further concluded that there were no mitigating factors, and that the fact that the Accused had used his influence to incite genocide was an aggravating factor. The Chamber sentenced Bikindi to 15 years of imprisonment.
Repak: The Public Prosecuting Authority v. Mirsad Repak
Judgment, 2 Dec 2008, Oslo District Court, Norway
In 1992, Mirsad Repak was a member of the paramilitary Croatian Defence Forces (HOS), in the Dretelj detention camp, in Bosnia and Herzegovina. Repak held a middle leader position in the unit. Serbian civilians were detained in the Dretelj camp and held in inhuman conditions, suffering mistreatment and rape. Repak assisted in depriving civilian Serbs of their liberty and was also involved in the interrogation and torture of a woman detained in the camp.
In 1993, Repak fled to Norway and became a Norwegian citizen in 2001. On 8 May 2007, he was arrested in Norway and indicted for war crimes and crimes against humanity.
The case concerned the question whether the Norwegian Constitution allows the retroactive application of the legislation on war crimes and crimes against humanity. The Court observed that Article 97 of the Norwegian Constitution prohibits any retroactive application of the law unless similar legislation existed at the time of the alleged crimes. The Court ruled that prosecution was possible since the actions described in the indictment were punishable under the Criminal Code in force in 1992 (the time of the crimes). Repak was therefore found guilty of war crimes, but was acquitted for the charges of crimes against humanity, as there was no comparable legislation in 1992. Repak was sentenced to five years’ imprisonment and ordered to pay damages of a total of NKO 400,000 (approximately 51,000 euro) to the families of eight Serbian victims.
Sarei v. Rio Tinto: Alexis Holyweek Sarei et al. v. Rio Tinto PLC and Rio Tinto Limited
Appeal from the United States District Court for the Central District of California, 16 Dec 2008, United States Court Of Appeals For The Ninth Circuit, United States
After the civil war in Papua New Guinea, which led to Bougainville obtaining a more autonomous position, several inhabitants of that island sued the mining company Rio Tinto, basically for its role in the war and the process leading up to it. The plaintiffs claimed that Rio Tinto’s mining activities had harmed their health and the environment, and that they had helped the Papua New Guinea government in, among other things, setting up a blockade with disastrous results for the population. They relied on the Alien Tort Claims Act, a US Act which permits aliens to present a claim in a US Court when, allegedly, the law of nations has been breached. Before the District Court ruled on this case en banc, two previous panels had ruled on this case, thereby mostly focussing on the question whether or not the case should be dismissed as it touched upon questions of US foreign policy, questions which should only be addressed by the Executive Branch of the government. The Court of Appeals en banc took a different route and stated that the District Court should assess in depth whether the fact that the islanders had not exhausted local remedies should lead to dismissal of the case. To this end the Court of Appeals established a framework of applying the ‘exhaustion principle’ and referred the case back to the District Court.
Amnesty International Canada v. Canada: Amnesty International Canada and British Columbia Civil Liberties Association (Appellants) v. Chief of the Defence Staff for the Canadian Forces, Minister of National Defence and Attorney General of Canada (Respondents)
Appeal Judgment, 17 Dec 2008, Federal Court of Appeal, Canada
At the beginning of 2007, there were allegations that Afghan prisoners who were captured by Canadian forces and transferred to Afghan custody, were tortured.
On 21 February 2007, Amnesty International Canada and the British Columbia Civil Liberties Association (BCCLA) filed a lawsuit against the Canadian Minister of National Defence, the Chief of the Defence Staff for the Canadian forces and the Attorney General of Canada in order to halt the transfer of Afghan prisoners. Plaintiffs specifically asked for a review of the Canadian prisoner transfer policy, and, in addition, claimed that the Canadian Charter of Rights and Freedoms should provide protection to the Afghan prisoners.
The case was dismissed. In March 2008, a federal judge stated that the Afghan prisoners have rights under both the Afghan Constitution and international law, but that they did not have rights under the Canadian Charter of Rights and Freedoms. This decision was upheld by the Court of Appeal in December 2008.
Bagosora et al.: The Prosecutor v. Théoneste Bagosora, Gratien Kabiligi, Aloys Ntabakuze, Anatole Nsengiyumva
Judgement and Sentence, 18 Dec 2008, International Criminal Tribunal for Rwanda (Trial Chamber I), Tanzania
The Accused in this case were Colonel Théoneste Bagosora, the directeur de cabinet of the Ministry of Defence, General Gratien Kabiligi, the head of the operations bureau of the army general staff, Major Aloys Ntabakuze, the commander of the elite Para Commando Battalion, and Colonel Anatole Nsengiyumva, the commander of the Gisenyi operational sector. They were charged with conspiracy to commit genocide, genocide, crimes against humanity, namely murder, exterminations, rape, persecution and other inhumane acts, and war crimes, namely violence to life and outrages upon personal dignity, for crimes committed in Rwanda in 1994. The victims of said crimes included a great number of Tutsis, the Prime Minister Uwilingiyimana and 10 Belgian peacekeepers.
Bagosora was found guilty by the Chamber of genocide, crimes against humanity and war crimes. Kabiligi was acquitted of all counts, while Ntabakuze and Nsengiyumva were convicted for genocide, crimes against humanity and war crimes. After taking into account the gravity of each of the crimes the Accused were convicted for, as well as aggravating and mitigating circumstances, the Chamber sentenced them to life imprisonment.
During the 408 trial days of this case, 242 witnesses were heard, 82 for the Prosecution and 160 for the Defence.
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