Is there such a thing as a Bar on Double Jeopardy in International Criminal Law?

On February 3, 2014, the Office of the Prosecutor (OTP) at the International Criminal Tribunal for the Former Yugoslavia (ICTY) filed a request to reconsider the acquittal of former Chief of Staff of the Yugoslav Army Momčilo Perišić for aiding and abetting crimes committed in Sarajevo and Srebrenica between 1993 and 1995. He was acquitted by the Appeals Chamber of the ICTY based on the legal determination that in order to aid and abet crimes, one must have a specifically directed the crimes in question. Subsequent decisions by the ICTY have called this legal finding into question. The OTP now seeks to undo what it sees as an injustice. Should they be allowed to reopen the case after acquittal on appeal?

The Rules of Procedure and Evidence (RPE) of the tribunal allow for a decision or judgment to be “reviewed.” Rule 119 provides as follows:

Where a new fact has been discovered which was not known to the moving party at the time of the proceedings before a Trial Chamber or the Appeals Chamber, and could not have been discovered through the exercise of due diligence, the defence or, within one year after the final judgement has been pronounced, the Prosecutor, may make a motion to that Chamber for review of the judgement. If, at the time of the request for review, any of the Judges who constituted the original Chamber are no longer Judges of the Tribunal, the President shall appoint a Judge or Judges in their place.

The formal requirements for such a motion are that there is a new “fact” and, in this case, that the request is made within one year of the issuance of the judgment in question.

Starting with the second requirement, we can see that it has clearly been satisfied. The Perišić judgment was issued on February 28, 2013, while the request was filed on February 3, 2014, just under the wire. The more interesting question is whether a determination of law is a new “fact” that can be raised to review a judgment of acquittal. I do not believe it is. Legal interpretations should not be considered “facts” for the purpose of a review of a judgment of acquittal for two reasons, one dealing with a simple interpretation of the rule and the other with general principles of justice.

The rule requires there to be a new “fact” that was not discoverable at the time in order to review a judgment. “Facts” are items of proof tending to demonstrate that the underlying crime in fact took place. These indicia are then interpreted in light of applicable law to see if they satisfy the elements of the crime in question. The OTP’s request in this case is not related to the first half of this equation, the facts, but to the second part, the law. The OTP should not be allowed to change the result of the trial simply on the clear wording of the rule.

Even if the differing legal interpretations should be considered as “facts,” they would still have to be “new,” or undiscoverable at the time of the original proceedings. This is clearly not the case here. The OTP made arguments along the lines being advanced in the request for review. It is just that the Appeals Chamber at the time rejected those arguments and made a contradictory ruling of law. Now, based on other authority, the OTP wishes to have that ruling reconsidered, this is nothing more than an attempt to get a second bite at the apple.

It is a general principle of justice that a person shall not be tried more than a single time for the same crime. This is known both as the prohibition on double jeopardy and the principle of ne bis in idem. It is enshrined in various national constitutions and international human rights documents. The rule not only protects individual rights but, like the related doctrine of res judicata, provides a needed finality to judgments and legal proceedings. The OTP in this case already had its chance to prove the crimes allegedly committed by Mr. Perišić. They failed to do so as the Appeals Chamber made a legal ruling, one that cannot be appealed as the chamber is the final instance of appeal, excluding his culpability. The OTP would like to revisit that judgment now and have Mr. Perišić re-judged based on a different legal standard. This is exactly what the prohibition on double jeopardy is designed to prevent. Justice cannot be effected through the application of a system that violates basic principles of justice.

There is a debate right now in international criminal law as to whether aiding and abetting requires there to be “specific direction.” Indicia at the moment appears to be moving away from such a requirement. Whatever the outcome of this legal evolution will be, it should not be used to retry those who have already been acquitted on appeal.

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Issues of Immunity: India v. USA

On 12 December 2013, Federal authorities in New York City arrested Mrs. Devuani Khobragade – an Indian consular official – on charges of visa fraud and making false statements. The charges arise out of allegations that Mrs. Khobragade paid her house keeper less than minimum wage after pledging to do so in the housekeeper’s visa application. Such declarations are required to obtain visas for domestic workers to enter the United States.

Immediately after the arrest, Mrs. Khobragade claimed she was not subject to trial because, as a diplomat, she should benefit from personal immunity. Then, following these statements, she was transferred from the Indian consular mission in New York City to the United Nations diplomatic mission. The United States claims any such transfer will not effect the criminal trial. This post will analyze both of these claims: (1) if Mrs. Khobragade is entitled to immunity as a consular official and (2) if her transfer to the United Nations mission would prevent her trial.

Consular Immunity

Article 43 of the Vienna Convention on Consular Relations of 1963 provides that,

Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions.

This provision provides for “functional immunity,” or, in other words, immunity from suit based on official acts. Visa applications and the employment of a domestic are not and should not e considered “official” acts. Their only connection to the work of the mission is that they allow the consular agent more time to work, as they will not need to tend to housework. However, if this were to an official at, all acts by the consular agent could be “official” in that they allow the agent to go about their day. Such total immunity from jurisdiction for the individual agent is better conceived of as “personal immunity” and is not established anywhere in the Vienna Convention on Consular Relations. In fact, it is implicitly excluded.

Article 41(3) of the convention reads in pertinent part,

If criminal proceedings are instituted against a consular officer, he must appear before the competent authorities.

The convention clearly allows the institution and prosecution of criminal cases against consular officials. While agents may not be arrested based on minor charges (as set out in article 41(1)), they are liable to imprisonment upon conviction (this is article 41(2)). These provisions clearly set out the consular officials do not benefit from personal immunity and may therefore be prosecuted.

Considering that the charges against Mrs. Khobragade do not involve “official” acts and her post did not carry personal immunity, the United States may properly prosecute her based on allegations of Visa fraud and making false statements.

Diplomatic Immunity

The Indian solution to the problem of Mrs. Khobragade’s forthcoming trial has been to transfer to the diplomatic mission to the United Nations. A post, it is believed, will prevent her trial. This part of the post will evaluate this proposition.

Article 31(1) of the Vienna Convention on Diplomatic Relations of 1961 states that,

A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.

This rule is not subject to conditions. It is true that article 41(1) sets out that diplomatic agents must respect the law of the receiving State. However, this has nothing to do with immunity or ability to arrest or being subject to trial. Article 39(1) of the convention establishes when immunity begins, and when it ends. It reads,

Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry of Foreign Affairs or such other ministry as may be agreed.

The immunity continues until the diplomat has had a reasonable amount of time to leave the country as set out in article 39(2).

The terms of the convention clearly subtract diplomats from the jurisdiction of the host State, no exceptions (except waiver by the sending State). This personal immunity ceases upon departure of the diplomat, at which point prosecutions for criminal may be begun, or presumably, resumed. Even if this were not the case, and a prosecution could legitimately continued, the diplomatic agent would not be required to appear in court and could not be taken into custody on conviction. Any enforcement would have to wait until the person lost their diplomatic status, at which point they would already be out of the country and outside the reach of the domestic justice system (extradition could be requested, but it is very unlikely any such request would be granted).

In the present case, should Mrs. Khobragade take up a diplomatic post at the Indian mission to the United Nations, she will likely be out of reach of the American justice system.

There are still some details of this matter than cannot be addressed in a blog post such as this, not all the facts are in. Questions remain as to whether the charges against Mrs. Khobragade are well founded. Information is also lacking regarding the exact procedural mechanisms that are necessary for her to officially transfer to the Indian diplomatic mission to the United Nations. Whatever the specifics, however, it would seem to be counter intuitive if she were allowed to escape justice (and remain in New York) due solely to the clever shuffling of paper resulting in her job moving from one Indian office to another. Unfortunately, from the outside it is not possible to gain access to all the necessary documents to fully analyze the situation and determine what should happen in this specific case.

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East Timor vs. Australia

On 18 December 2013, the Democratic Republic of Timor-Leste initiated proceedings before the International Court of Justice (ICJ) against the Commonwealth of Australia alleging that the latter violated diplomatic immunity in entering the former’s embassy without permission. More information on these events can be found here.

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The Netherlands v. Russia, Criminal Jurisdiction and The Case of the Artic Sunrise

On 22 November 2013 the International Tribunal for the Law of the Sea (ITLOS) issued provisional measures ordering the Russian Federation to release the Dutch vessel the Artic Sunrise and her crew from detention and allow them to leave the country. The dispute is about Russian jurisdiction to arrest the vessel (in a technical sense) and prosecute her crew for crimes they allegedly committed. The issue at the heart of the dispute is whether or not Russia violated its obligations under the United Nations Convention on the Law of the Sea (UNCLOS) by taking the vessel and her crew into custody while they were in the exclusive economic zone without first asking the Netherlands government for permission to board.

ITLOS ordered the provisional measures because it accepted that the failure to comply with such an order would irreparably harm the Netherlands’ interests pending resolution of the dispute between the two countries. The interests considered by the tribunal being the condition of the vessel and the crew’s liberty interests, both of which being harmed by their detention. As a guarantee pending the resolution of the international dispute (and to guarantee payment of any damages to Russia) the tribunal ordered that the Netherlands take out a bond of 3.6 million.

Russia, for its part, has stated that it will ignore the order for provisional measures, as it does not accept that jurisdiction of the tribunal. In fact, Russia did not participate in the hearing on the Dutch request for the tribunal to intervene.

What makes the issue so interesting is that it appears to conflate the issue of a potential infraction of an international obligation (such as the arrest of the vessel) that is capable of being resolved by the payment of money (economic loss) and the enforcement of national criminal laws (against the crew for their alleged crimes). These two issues are of a type different, one is inherently “civil” in nature while the other has to do with public order. A bond, such as that ordered by the tribunal, can work to guarantee compensation for Russia should the Netherlands lose the suit and be forced to pay – which is the purpose of seizing the boat in the first place. The same cannot be said for the release of the vessel’s crew.

The enforcement of criminal law is not about money (or at least it should not be). The idea behind penal sanction is that punishment will not only deter the culprit from violating the law a second time, but the existence of punishment will deter others from committing crimes in the first place. If the crew of the Artic Sunrise are guilty of crimes under the Russian penal code, their release will effectively prevent their punishment and thereby undermine the effectiveness of Russian criminal justice. Even assuming, however, that these considerations are not relevant, that would still not mean Russia would lack the legal ability to try the crew of the Artic Sunrise because the vessel was seized in violation of UNCLOS.

There is an internationally recognized principle that those who break the law may be tried even if their initial arrest was made in contravention of the law, known as the male captus, bene detentus rule. This rule has been explicitly accepted as a matter of International Criminal Law, and has been applied by States to justify national prosecutions. Some countries object to the validity of this rule of law and choose, as a matter of national law to prevent trial after illegal arrest. No rule of generally applicable customary international law requires such a result.

ITLOS did not address the issues of the enforcement of criminal law or male captus, bene detentus. The basis for its issuing the precautionary measures vis-à-vis the crew of the Artic Sunrise is not clear. It would have been great benefit had the tribunal decided to explain its decision, unfortunately, it did not.

In the end, Russia should comply with the order to release the Artic Sunrise and accept the bond on this matter. This is the correct legal result and it could be good as a political bargaining chip. When it comes to the custody of the crew, however, I cannot say that Russia is entirely in the wrong, at least as a matter of international law on the exercise of criminal jurisdiction.

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Preliminary Examinations at the ICC in 2013

Yesterday, 25 November 2013, the Office of the Prosecutor (OTP) at the International Criminal Court (ICC) released its annual report on preliminary investigations. This document sets out what actions were taken by the OTP in the consideration of potential situations that have been brought to the attention of the office. The report sets out the state of the examinations, whether the OTP believes there is jurisdiction, reasonable basis to believe crimes have been committed, whether there is an admissibility issue and whether the crimes are serious enough to be tried by the ICC.

10 potential situations were under examination by the OTP during this reporting period. They were:

Afghanistan – relating to the non-international armed conflict in that country;

Honduras – allegations of crimes committed following the ouster of former President Zelaya in 2009;

The Mavi Marmara Incident – relating to the Gaza Freedom Flotilla;

Republic of Korea – relating to alleged attacks by North Korea;

Colombia – relating to the drug war;

Georgia – relating to the 2008 war with Russia;

Guinea – relating to the 28 September Massacre;

Nigeria – relating to Boko Haram;

Mali – relating to the recent violence in that country; and

Palestine – relating to crimes allegedly committed during Israel’s occupation.

Of these potential situations, 3 are in Africa, 2 are in Asia, 2 are in Latin America, 1 involves the States of the former Soviet Union and 2 derive from the Israeli/Palestinian conflict. The only situation to progress to the opening of official investigations, Mali, is from Africa.

All the preliminary examinations are still pending except for Mali (as noted an investigation was opened) and Palestine, where the OTP stood by an earlier decision about the invalidity of the referral. However, the OTP indicated a road that may lead to a different determination in the future.

Of the preliminary examinations, four of them included interesting pronouncements of law by the OTP: Honduras, Mavi Marmara, Korea and Palestine. I would like to address each briefly, in turn.

Honduras

In 2009, then president of the Republic of Honduras was arrested and removed from the country by members of the armed forces. This event triggered large-scale protests and allegations of severe human rights abuses against protestors by the newly installed authorities. Information was sent to the OTP alleging that these violations amounted to Crimes Against Humanity (CAH). In the end the OTP determined – at least at this stage – that the reported violations of Human Rights Law while severe, there was insufficient grounds to believe that they were CAH due to the apparent lack of a governmental plan or policy to commit them and/or nexus with that plan should it exist.

The most interesting part of this document is that it takes for granted that the removal of Zelaya was a coup. I have written about these events before, and it seems to me that the issue has not been analyzed enough. In any case, the characterization of the events is not relevant to the determination of whether crimes within the jurisdiction of the court were in fact committed.

Mavi Marmara

The Mavi Marmara incident relates to the “Gaza Freedom Flotilla” and the Israeli raid that prevented it from reach Gaza. The OTP underwent an analysis very similar to that in a prior post on this blog. So far, review has only been conducted as to the jurisdiction of the court. The next step is for the OTP to determine whether there are reasonable grounds to believe crimes within that jurisdiction have been committed. Then it will be necessary to determine if the cases are admissible.

This decision is notable for its direct application of the rule that a ship is a “floating territory” of the flag State, and therefore sufficient for founding the court’s jurisdiction.

Korea

The OTP determined that there is jurisdiction over alleged crimes committed by the North Korean military in South Korea (a shelling incident and an attack on a military vessel). The next step in the process is to determine whether there are grounds to believe specific crimes were committed.

The interesting part of this decision is that jurisdiction is based on the simple fact that the specific incidents in question were uses of military force between States. The OTP found that the simple recourse to the use of armed force between States, even if not in a continual fashion, is sufficient to create an international armed conflict.[1] This reading of the law is not out of line with international pronouncements on the nature of international armed conflict. However, it does beg reason to say that a single incident of military to military force is enough give rise to an international armed conflict. Border incidents, for example, have long been recognized as not meeting the threshold of the beginning of an armed conflict.[2] I do not mean to say that the events in question are insufficient, only that the OTP analysis leaves much to be desired.

Palestine

In 2012 the OTP announced that it would not initiate an investigation in to allegations of crimes in Palestine as there was no consensus that Palestine was a State capable of granting the court jurisdiction.[3] Since that decision, Palestine has been recognized as a non-member Observer State at the UN, that is, it has been recognized as a State by the General Assembly. However, the OTP found that since the “referral” was made in 2009, before Palestine was recognized by the General Assembly, it could not grant the court jurisdiction. The implicit logic leads one to believe that the OTP would accept a new referral from Palestine as being valid.

This is perhaps the most interesting decision in the whole OTP annual report. If I have interpreted it correctly, and the authorities in Palestine so choose, we could see the ICC with jurisdiction (at least in the view of the OTP) over alleged crimes in the occupied territories. If there have been accusations that the ICC has been politicized in the past, they will be nothing compared to what is said if the court finds it has jurisdiction. The political arena in the Middle East may be getting ready for an earthquake.


[1] ¶ 111 of the OTP report.

[2] Nicaragua v. United States, ICJ at ¶¶ 164, 211, 249.

[3] See my earlier post here.

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More Contempt at the ICC

Yesterday, the ICC announced four arrest warrants have been issued on contempt charges arising out of the case against Jean-Pier Bemba Gombo. The charges are against Bemba himself, his attorney, a member of the DRC parliament and another member of his defense team. Alleged crimes include presenting false evidence and witness tampering.

The press release is available here.

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Contempt Jurisdiction of the Residual Mechanism

As many know the United Nations ad hoc international criminal tribunals that were created in the 1990’s to prosecute international crimes committed during the Yugoslav wars and the Rwandan genocide are scheduled to complete their work in the near future. However, the judicial work of the tribunals is not finished just because the courts have completed the task of adjudicating allegations of international crimes.[1] There will still be outstanding protective measures for victims and witnesses that will need enforcing. At the same time, it will be necessary for a forum to exist to authorize the publication of information from the trials (confidential exhibits) and the modification of the above-mentioned protective measures. Judges will need to sworn and authorized to rule on these issues and enforce them where necessary. For this reason, the United Nations created the Residual Mechanism on 22 December 2010 and judges were sworn thereafter to hear issues that arise in the future.[2]

The scope of the Residual Mechanism’s jurisdiction on work has already been the subject of argument and decision at the International Criminal Tribunal for the former Yugoslavia (ICTY). On 27 September 2013, Radovan Karadžić (on trial before the tribunal) filed a request with the Tribunal’s president, Judge Theodor Meron, for a special chamber to be formed to consider to appointment of a special prosecutor to investigate the filing of contempt charges against former prosecutor Carla Del Ponte.[3]

The special chamber, consisting of Judges Flügge, Moloto and Hall, noted that the Residual Mechanism’s statute provides that it has jurisdiction over “any person who knowingly and wilfully (sic) interferes or has interfered with the administration of Justice by the Mechanism or the Tribunals, and to hold such person in contempt.”[4] They also noted that according to the transitional arrangements, the Mechanism is the proper forum for contempt proceedings where the indictment is confirmed after the effective date of the mechanism. Considering that The Hague branch of the mechanism is already active, the chamber held that the Mechanism, and not the ICTY, has jurisdiction to entertain the issue of the appointment of a special prosecutor.[5]

This decision is problematic for several reasons, some legal and some based merely in common sense. I shall turn to the latter first.

Common sense dictates that Karadžić’s motion be filed with the appropriate person, whether that be the president of the ICTY or that of the Mechanism. However, in this specific case, Judge Meron is both the president of the ICTY and the Mechanism. Furthermore, the current Registrar of the ICTY also holds the same position at the Mechanism. The proper person received the request and assuming for the moment that the special chamber is correct – and the Mechanism is the proper forum – it should have been within the purview of the Judge Meron to sua sponte correct that error. He did not consider that there was an error and so the matter should have been considered as already decided. Alternatively, as president of the Mechanism, Judge Meron’s choice to appoint those currently sitting international judges to consider the issue should have been valid, especially considering that all the judges on the panel are also serving judges of the residual mechanism. The decision as written does nothing more than unnecessarily prolong the matter by passing the buck back and forth based on a presumed procedural anomaly.

From a legal point of view, the reasons for the special chamber’s decision also show that it is not necessarily correct. It is true that the Mechanism is to have jurisdiction to try those who are on trial for contempt of the tribunal based on indictments confirmed after the start date of the Mechanism.[6] However, no indictment has yet been issued so that the Mechanism does not yet have the competence to hear the issue – outside of independently considering the issuance of an indictment itself.

Furthermore, and here assuming that the Mechanism would have jurisdiction to consider the issuing of a contempt indictment at this point, the jurisdiction of this institution does not itself preclude the jurisdiction of the ICTY to issue the indictment that will result in a trial before the Mechanism. The ICTY is just prevented from carrying out the contempt trial. This could simply be a case of concurrent jurisdiction on the matter. It is proper that the tribunal whose orders were allegedly violated is a better forum to consider the issuance of an indictment for contempt – especially when such power is not statutory but an inherent component of the judicial function.

This, however, is not the understanding of the Mechanism itself. Both the appeals chamber and a single judge have ruled that the Mechanism has the sole authority to consider accusations of contempt before the two ad hoc tribunals.[7] These decisions effectively subtracted from the tribunals the ability to enforce their decisions and order and for reasons not required by the text of the statute and rules.

Given the legal and common sense possibilities of considering the issue of an indictment at the ICTY, there was no reason for the special chamber to decline jurisdiction. By deciding not to decide the substantive issue, the judges of the chamber have done nothing more than delay the issue.


[1] When the tribunals close, the ICTY will no longer have any outstanding indictments. This is not so of the ICTR.

[2] Cite to UNSC Res. 1966 (2010).

[3] ICTY, Prosecutor v. Karadžić, Decision on Jurisdiction Following the Assignment of a Specially Appointed Chamber, IT-95-5/18-T, IT-02-54-T, p. 2 (18 October 2013).

[4] Ibid. citing, article 1(4)(a) of the Statute of the Residual Mechanism.

[5] Ibid.

[6] See, Article 4(2) of the transitional provisions annexed to the statute of the Residual Mechanism.

[7] In re. Deogratias Sebureze & Maximmilien Turinabo, MICT-13-40-A R90 & MICT-13-41-AR90, Decision on Deogratias Sebureze and Miximilien Turinabo’s Motions on the Legal Effect of the Contempt Decision and Order Issued by the ICTR Trial Chamber (20 March 2013) and its subsequent tacit approval on appeal.

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