30. As just set out, the Chamber's Decision stayed the proceedings sine die because of the present impossibility of trying the accused fairly. It follows that the detention of the accused cannot be justified in order to ensure his appearance at trial or to safeguard the investigation, because the trial (which was the result of the investigation) has been stayed. Furthermore, in the absence of the prospect of a trial, the accused cannot be held in custody or subjected to provisional release as purely preventative measures to deter him from committing further crimes.

35. Trial Chamber I orders the release of the accused, but since by Rule 154 of the Rules an appeal may be filed no later than 5 days from the date upon which the party filing the appeal is notified of the decision, this order shall not be enforced until the expiry of the 5 day time limit, and, furthermore, if an appeal is filed within the 5 day time-limit against the order granting release and if a request is made in the appeal for suspensive effect, the accused shall not leave detention until the Appeals Chamber has resolved whether or not the effect of the order granting release is to be suspended.

36. It is to be noted, finally, that by Rule 185 of the Rules, an order releasing the accused shall only be put into effect after arrangements have been made for his transfer to a State that is obliged to receive him. It follows that these arrangements should not be implemented until the 5 day time-limit, set out above, has expired.

In a correspondence from Nicolas Michel, the UN Under-Secretary-General for Legal Affairs, the United Nations proposed that the judges go to the Peace Palace in The Hague, therefore on "UN territory", to consult the documents.

They would not be allowed to take notes, or to record information during their consultation. Thereafter, they could indicate certain pieces of evidence for which the prosecutor would be invited to make a summary. The judges could then compare the summary with the original evidence and decide to reveal these summaries to the defence.

During the hearing of 24 June, Catherine Mabille, the lawyer for Lubanga, has from the start specified that "the defence will not accept summaries, which cannot be evidence".

"If you accept", she declared, that means that the prosecutor signs agreements with the United Nations, and that the UN will dictate to the judges, to justice, what it can hear, what can be said or not."

When armed rebels from the Movement for the Emancipation of the Niger Delta attacked an enormous oil facility 75 miles off the swampy West African coast on June 19, traveling hours by speedboat under cover of darkness and kidnapping an oil worker, their brazen assault underlined the perhaps underappreciated dependence of the United States — and the world — on oil from Nigeria.

Three days afterward, Nigerian officials said at a hastily arranged global energy summit in Jidda, Saudi Arabia, that recent attacks had cut Nigeria’s oil production to its lowest level in nearly two decades, giving oil markets the jitters and helping to send prices higher…

“We always focus on the Persian Gulf but this is one of the key oil security issues in the world today,” said Daniel Yergin, one of the nation’s best-known energy experts and chairman of Cambridge Energy Research Associates, a consulting firm. “It’s tied up with Nigerian politics, regional and national battles for power, and criminality.” When Mr. Yergin spoke to lawmakers at a hearing in Congress last week, he was asked what would most help stabilize world markets. “Helping bring peace to the Niger Delta would be a major contribution,” he responded.

According to J. Stephen Morrison, director of the Africa program at the Center for Strategic and International Studies in Washington, the government led by Nigeria’s new president, Umaru Yar’Adua, must break with decades of neglect and pay attention to the troubles of the southern delta region by promoting development but also cracking down on the rebels and “demonstrating that these guys cannot operate with impunity.”

He’s not very optimistic, however. “When you look at the delta, the overwhelming picture is that the situation has very little promise of being fixed,” he said.

So, given production limitations and strong/concentrated demand, even small disruptions by guerrilla groups on light sweet crude production is likely to have a direct influence on global oil pricing (in contrast, disruptions aimed at heavy crude production should have little impact on global pricing). Further, there are already active groups in many of the most critical production areas.

Fortunately, from the demonstrated behavior of these groups it doesn't appear that guerrilla/terrorist groups have fully grasped their potential market power with small attacks (despite aspirational pronouncements from al Qaeda and large scale attacks in 2005/2006). Once they do, as bad as disruption is today, it could get MUCH worse.

Why? A direct connection to scalable profits...

As we saw with e-mail spam/phishing, even the faintest whiff of profits can turn a loose collection of individuals/groups into a torrential crime-fueled marketplace generated billions and attracting tens of thousands of participants. Are we about to see the same occur with oil?

Disruption isn't limited to Nigeria. A remote control bomb by the FARC on Occidental Petroleum's pipeline in Colombia just knocked out 100,000 barrels a day. It's also interesting to note how irrelevant the US military/national security system has become in regards to global energy security. The entire paradigm of warfare has changed but the $1 Trillion behemoth has barely budged.

According to a diplomatic note obtained by the Star, Canada “has already indicated openness, in principle” to supporting a future request to the UN Security Council to defer charges from the criminal court in order to have Ugandan rebel leaders sign off on a peace deal that could halt the decades-long conflict.

Belgium has confirmed that it was investigating Emmanuel Bagambiki, former Governor of Cyangugu during the 1994 genocide, who was acquitted by the International Criminal Tribunal for Rwanda (ICTR) and who is sought by Rwanda, reports Hirondelle Agency .

"The federal prosecutor is looking at the [Bagambiki's] extradition request and that there is an arrest warrant issued against him [by Rwanda]','said Lieve Pellens spokesperson of the prosecutor.

However, he hinted that Belgium and Rwanda, for the time being, do not have an extradition agreement, but affirmed that Investigations were underway against the former Rwandan official, who is living in Belgium with his family.

Following his final acquittal by the ICTR appeals court, on 8 February 2006, for crimes of genocide and crimes against humanity, Rwanda decided to prosecute the former Governor for rape, for which he was not tried by the UN tribunal.

On 10 October 2007, the Court of First Instance of Rusizi, his native region, sentenced Bagambiki in absentia to life in prison for rape and incitement to commit rape.

A source told Hirondelle that the federal prosecutor, Phillippe Meire, had recently travelled to Rwanda to follow up on the judgement.

If extradition was rejected, Belgium could decide to prosecute Bagambiki itself if there was any convincing evidence.

Duties and powers of the Prosecutor with respect to investigations
[...]
3. The Prosecutor may:
[...]
(e) Agree not to disclose, at any stage of the proceedings, documents or information that the Prosecutor obtains on the condition of confidentiality and solely for the purpose of generating new evidence, unless the provider of the information consents.

64. The prosecution is unable to disclose any of these items of evidence to the accused, in full or in a redacted form. Furthermore, save for a limited number of documents (32) that have been supplied to the Chamber by six unidentified information-providers in redacted form, the prosecution (given the terms of the agreements) is unable to show them to the Chamber. This is because the information-providers do not consent to the judges viewing copies of the original materials (in the majority of instances the Chamber cannot be shown the documents at all), notwithstanding an undertaking which has been given by the judges to uphold the confidential status of the documents or information, unless consent is given by the information-providers for their wider distribution.

72. The prosecution has given Article 54(3)(e) a broad and incorrect interpretation: it has utilised the provision routinely, in inappropriate circumstances, instead of resorting to it exceptionally, when particular, restrictive circumstances apply. Indeed, the prosecution conceded in open court that agreements reached under Article 54(3) (e) have been used generally to gather information, unconnected with its springboard or lead potential.

[snip]

73. Therefore, although the Chamber does not have the information necessary to analyse the circumstances in which each of the individual documents was supplied to the prosecution, the overall picture is clear: the prosecution's general approach has been to use Article 54(3)(e) to obtain a wide range of materials under the cloak of confidentiality, in order to identify from those materials evidence to be used at trial (having obtained the information provider's consent). This is the exact opposite of the proper use of the provision, which is, exceptionally, to allow the prosecution to receive information or documents which are not for use at trial but which are instead intended to "lead" to new evidence. The prosecution's approach constitutes a wholesale and serious abuse, and a violation of an important provision which was intended to allow the prosecution to receive evidence confidentially, in very restrictive circumstances. The logic of the prosecution's position is that all of the evidence that it obtains from information-providers can be the subject of Article 54(3)(e) agreements.

88. Although the prosecution, as a first stage in this procedure, must make the initial decision as to the exculpatory value or effect of any piece of evidence under Article 67(2) ("evidence in the Prosecutor's possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence"), once this threshold is passed and it is accepted that the material has, potentially, an exculpatory effect, only the Chamber can make a decision on non-disclosure if exceptional circumstances so require. If it is proposed that evidence of this kind should be withheld, it is to be put before the judges in its original form and in its entirety. The ultimate responsibility for securing justice and ensuring fairness has been given to the Chamber (Article 64(2) of the Statute) and these responsibilities cannot be delegated by, or removed from, the judges. In this case, the Bench has been prevented from assessing for itself the impact on the fairness of these proceedings should the evidence remain undisclosed,142 and the approach of the prosecution means, inter alia, that for the purposes of Article 67(2), the Chamber could never, "in case of doubt", make a decision (because it will be unable to view the underlying material).

91. This is an international criminal court, with the sole purpose of trying those charged with the "most serious crimes of concern to the international community as a whole" and the judges are enjoined, in discharging this important role, to ensure that the accused receives a fair trial. If, at the outset, it is clear that the essential preconditions of a fair trial are missing and there is no sufficient indication that this will be resolved during the trial process, it is necessary - indeed, inevitable - that the proceedings should be stayed. It would be wholly wrong for a criminal court to begin, or to continue, a trial once it has become clear that the inevitable conclusion in the final judgment will be that the proceedings are vitiated because of unfairness which will not be rectified. In this instance, in its filing of 9 June 2008, the prosecution went no further than raising the possibility that the Chamber may be provided at some stage in the future with no more than incomplete and insufficient materials. There is, therefore, no prospect, on the information before the Chamber, that the present deficiencies will be corrected.

This is a big deal. On the one hand, indicting top government officials could seriously disrupt current diplomatic efforts to coax and cajole Khartoum into cooperating with the deployment of peacekeepers in Darfur. The international community also needs Khartoum's cooperation to shore up the separate peace agreement with the south and resolve the conflict in the Abyei region. Another way of looking at this, though, is that current international efforts to bolster UNAMID are already fledgling. Fighting in Abyei has already broken out (causing some 50,000 displaced) the north-south peace accord is already fledgling. This new intervention by the ICC, if it comes, could provide a critical point of political leverage over the political elites calling the shots in Khartoum.

So far, the international community has not been able to convince the Sudanese government that it is in their best interests to cooperate on Darfur, Abyei, and elsewhere. The threat of indictment (and the ability of the Security Council to suspend those indictments) could inject the necessary impetus for the government to finally take a conciliatory stance toward the international community. The problem is, ICC indictments are a relatively new phenomenon on the international stage. Diplomats seem not yet to have quite learned the best way use these indictments to serve their political ends. Here's hoping they learn fast.

The international criminal court (ICC) is refusing to dismiss the possibility of genocide in Sudan's wartorn Darfur region, its chief prosecutor has said.

Chief prosecutor Luis Moreno-Ocampo made the claim in a briefing to MPs and peers in parliament 15 months after the ICC named Sudan's humanitarian affairs minister, Ahmed Haroun, and Ali Kosheib, Janjaweed leader, as chief suspects of war crimes against humanity in Darfur.

Mr Moreno-Ocampo said he had established a "clear case" against the two suspects based on crimes against humanity.

"We never dismiss genocide", he explained, adding that a "second investigation" is currently underway considering this "second aspect" of the Darfur crisis.

The Commission concluded that the Government of the Sudan has not pursued a policy of genocide. Arguably, two elements of genocide might be deduced from the gross violations of human rights perpetrated by Government forces and the militias under their control. These two elements are, first, the actus reus consisting of killing, or causing serious bodily or mental harm, or deliberately inflicting conditions of life likely to bring about physical destruction; and, second, on the basis of a subjective standard, the existence of a protected group being targeted by the authors of criminal conduct. However, the crucial element of genocidal intent appears to be missing, at least as far as the central Government authorities are concerned. Generally speaking the policy of attacking, killing and forcibly displacing members of some tribes does not evince a specific intent to annihilate, in whole or in part, a group distinguished on racial, ethnic, national or religious grounds. Rather, it would seem that those who planned and organized attacks on villages pursued the intent to drive the victims from their homes, primarily for purposes of counter-insurgency warfare.