Monthly Archives: February 2012

Jurisdiction and Diplomacy on the High Seas: India vs. Italy

On 15 February 2012, Italian military guards on an oil tanker allegedly shot and killed two Indian fishermen after confusing them for pirates.[1] There are allegations that the Indian fishermen were not killed by the Italians, but by security forces on a different oil tanker.[2] There is also some suggestion that the focus on the Italians (instead of the other ship) is the product of dirty business practices and an attempt to shutout Italian businesses interests from India to benefit certain internal political constituencies.[3] There are also questions as to the exact location of the incident, whether it took place in international waters or in India’s territorial sea. After the incident, Indian authorities stopped the oil tanker and arrested the Italian security guards to investigate the shooting and possibly charge them with murder.

Italy is challenging the exercise of Indian jurisdiction over the shooting claiming that Italy should have exclusive jurisdiction over the events. India, by contrast, claims to be able to exercise jurisdiction based on its internal laws. The location of the incident is key to understanding the nature of the dispute between India and Italy. According the Italian argument, if the oil tanker was in international waters at the time of the incident, then the Indian courts lack jurisdiction under international law. In the end, it will be difficult to deny the exercise of jurisdiction over this incident by the Indian courts.

This legal dispute[4] operates on several different levels: (1) whether the exercise of jurisdiction by India is prevented by the relevant rules of Public International Law; (2) whether the Indian pursuit and arrest on the high seas was permissible and; (3) whether any of this deprives the Indian courts of jurisdiction.

The first issue can be resolved by turning to the standard sources of Public International Law: treaties and custom. Traditionally, customary international law governing the exercise of jurisdiction provided that any State could exercise jurisdiction in any case except where there was a prohibitory rule to the contrary.[5] In fact, the Permanent Court of International Justice (PCIJ), the predecessor court to the International Court of Justice, decided a case similar to this one (in that case the cause of death was a collision) and concluded that the national State of the ship where the deaths occurred could exercise jurisdiction because the crime took place in part on the “territory” of that State.[6] This principle finds its modern expression in the customary norm known as the “objective” territorial principle.[7] However, States are free to limit the exercise of their jurisdiction by, inter alia, signing international agreements to that effect.

Many States came together years after the PCIJ’s decision and signed the United Nations Convention on the Law of the Sea (UNCLOS), which specifically reversed that decision.[8] Both India and Italy have signed and ratified this treaty thereby bound by its terms. Article 97 of the UNCLOS states that,

In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national.[9]

This article applies only to collisions and navigational incidents on the high seas and not to other types of events. UNCLOS specifically prohibits the exercise of jurisdiction over acts leading to a collision that took place on another State’s ship based on the “objective” territorial principle. The general rule for jurisdiction on the high seas set out in Article 92 states,

Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas.[10]

Unfortunately, this rule does not specifically address criminal jurisdiction over acts that originate on one vessel and terminate on another. It only speaks of jurisdiction over the ship. This in large part refers to the authority to stop the vessel on the high seas and conduct judicial and police activities onboard.

Article 92 could be read to exclude the application of the “objective” territorial approach to jurisdiction by referring to “exceptional cases”. The problem with this approach is that according the “objective” theory, the national State of the vessel where the crime was completed is not exercising jurisdiction over the ship where the crime was started. India is exercising its right to criminalize activity that takes place (at least partially) on its territory. The rule of Article 92 is better understood as preventing states from exercising jurisdiction over events that take place entirely onboard a single ship on the high seas that bears the flag of another State. Also, the rule set out in Article 97 regarding collisions would be superfluous if Article 92 were understood as excluding jurisdiction in all cases where the crime is completed onboard another vessel. The drafters of the UNCLOS excluded jurisdiction only in the cases of collisions and navigational incidents supporting the conclusion that jurisdiction in other cases is permissible.[11]

Extending Indian jurisdiction to crimes that are completed on Indian vessels is consistent with modern jurisdictional practice regarding crimes that begin in the territory of one State and are completed or partially take place in the territory of another.[12] The Indian courts should be understood as having jurisdiction over the Italian guards based on the lack of any explicit prohibition in UNCLOS on the exercise of the “objective” territorial principle and the fact that current jurisdictional practice generally supports the existence of jurisdiction in such cases.

Jurisdiction to prescribe conduct is of course a separate issue from whether or not pursuing the Italian tanker in international waters was permissible under UNCLOS. This second issue regards the authority of one State to detain a vessel from another State on the high seas. Article 111 of UNCLOS states,

The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State. Such pursuit must be commenced when the foreign ship or one of its boats is within the internal waters, the archipelagic waters, the territorial sea or the contiguous zone of the pursuing State, and may only be continued outside the territorial sea or the contiguous zone if the pursuit has not been interrupted. It is not necessary that, at the time when the foreign ship within the territorial sea or the contiguous zone receives the order to stop, the ship giving the order should likewise be within the territorial sea or the contiguous zone. If the foreign ship is within a contiguous zone, as defined in article 33, the pursuit may only be undertaken if there has been a violation of the rights for the protection of which the zone was established.[13]

Clearly, the issue here is a factual one. First, the exact location of the Italian vessel at the time pursuit began and (if outside the territorial waters) if the law prohibiting murder can be considered to violate the rights of the zone where the ship was located at the time.

It is impossible to definitively resolve these factual issues in this blog post due to the developing nature of the situation. Regardless, a few things can be said with certainty. The Indian authorities lacked the right of hot pursuit if the alleged murders took place outside their territorial waters. Conversely, the Indian authorities would have had the authority to stop the Italian vessel if it was in Indian territorial waters. Also, the Indian government will owe the Italian ship compensation for any loss if it was improperly stopped.[14] This, however, does not address the issue of Indian jurisdiction over the Italian security guards presently in their custody.

The last issue is whether the Indian courts are permitted to prosecute the security guards for murder even assuming that India violated international law by stopping the Italian tanker. The answer appears to be yes as a matter of law. While it is not uncontested, prosecution of an individual will generally be permitted even where that person came into the custody of the court through illegal means. This is known by the legal maxim of male captus bene dententus.[15] The Extraordinary Chambers in the Courts of Cambodia explicitly recognized the doctrine[16] and the International Criminal Tribunal for Rwanda has discussed it.[17] Common law jurisdictions have a long history of applying this rule going back at least as far as the 1800’s.[18] There are exceptions, normally dealing with gross violations of human rights in the manner of detention or capture, but they do not appear to apply in this case. No one is allegeding that the Italians have been tortured or mistreated. Accordingly, there does not appear to be an international law bar to exercising jurisdiction because of allegedly illegal arrest in this case.

The recent incident on the high seas between an Italian oil tanker and Indian fisherman reads like the basis for an international thriller: Piracy on the high seas, innocent victims, multimillion dollar business ventures, allegedly false evidence, mistaken identities and high diplomacy. At its base though, the dispute between India and Italy is a legal one dealing with the right to criminalize behavior, the authority to seize a vessel on the high seas and the jurisdiction to try those accused of murder. Both India and Italy are likely to raise valid points as they try to settle this dispute. However, absent a diplomatic solution (or exonerating evidence), the Italians are likely to validly stand trial in India.


[1] India, L’Italia riocore all’Alta Corte New Delhi: avanti con le nostre leggi, Il Messaggero, 22 February 2012.

[2] Ibid.; India, nessun risvolto politico Icc conferma attacco a nave greca, La Repubblica, 21 February 2012.

[3] India, L’Italia ricorre all’Alta Corte New Delhi: avanti con le nostre leggi, Il Messaggero, 22 February 2012; I marò furono i soli a sparare vicino agli italiani attaccata nave greca, La Repubblica, 21 February 2012.

[4] There are also factual allegations, regarding if the Italians really were the shooters that will not be directly addressed here.

[5] Case of the S.S. Lotus”, PCIJ, Series A, No. 10, 1927.

[6] Ibid. As a way of shorthand, vessels flying the flag of a nation are assimilated to the idea of the national territory.

[7] The other modern territorial principles are the “subjective” territorial principle, the active nationality principle, the passive personality principle, the principle of universality, the protective principle and, possibly, the effects doctrine.

[8] Worth noting is that there is a treaty from the 1950’s that did the same thing. Since UNCLOS is current law, it will be addressed here.

[9] UNCLOS, Article 97. Worth noting, Article 11 of the 1958 convention was similarly limited to collisions or navigational incidents.

[10] UNCLOS, Article 92.

[11] The Latin phrase for this is expressio unius est exclusio alterius.

[12] See for example, Chua Han Man v. US, 730 F.2d 1308, 1312 (9th Cir 1984); in re Wood Pulp Cartel, Joined, 96 ILR 148.

[13] UNCLOS, Article 111(1).

[14] UNCLOS, Article 111(8).

[15] The most famous example is Attorney-General v. Eichmann, 36 I.L.R. 5 (1961). A recent American example is United States v. Alvarez-Machain, 504 U.S. 655 (1992).

[16] Case File No. 002/14-08-2006, Order of Provisional Detention, 31 July 2007.

[17] See, Prosecutor v. Rwamakuba, ICTR 98-44-T, Decision on the Defence Motion Concerning the Illegal Arrest and Illegal Detention of the Accused, Case, 12 December 2000, ¶ 30.

[18] See, Ker v. Illinois, 119 U.S. 436 (1886).

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Review of International Tribunal Decisions for the week of February 20, 2012

This week’s review features cases from the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Court (ICC) and the Extraordinary Chambers in the Courts of Cambodia (ECCC). The topics range from protective measures for victims and witness, the admissibility of appeals and the right to representation.

International Criminal Law

ICTY

Prosecutor v. Stanišić & Simatović[1]

Decision on Motion for Protective Measures for Witness DSF-20

Background

The Simatović Defense team requested protective measure for a witness based on a four-year-old incident involving a hand grenade and unexpected termination of a family member’s employment contract.[2] The chamber denied the request.

Reasoning

“In addition to the fact that the events occurred more than four years ago, there is no objective indication that they took place because of Witness DFS-20’s position as a witness before this Tribunal. Accordingly, the Chamber is not satisfied that the Motion demonstrates an objectively grounded risk to the safety or welfare of the witness or his family because of his position as a witness before this Tribunal.”[3]

Prosecutor v. Karadžić

Decision on Prosecution’s Motion for Admission of Evidence from the Bar Table and for Leave to Add Exhibits to the Rule 65 ter Exhibit List

Background

The Prosecution filed a motion to admit exhumation reports and death certificates from the bar table without an accompanying witness to testify to their authenticity or the veracity of their contents.[4] The Accused objected to the admission of the exhumation reports. [5] The Chamber granted the motion as to the death certificates and denied it as to the exhumation reports.

Reasoning

The Chamber granted the motion as to the death certificates, inter alia, because the Accused did not object thereby indicating that he would not be prejudiced by their acceptance into evidence.[6] The Chamber noted that the exhumation reports meet the requirements of the Rule 89(C), however that they should not be admitted into evidence if their probative value is outweighed by the prejudice to the accused.[7] The Chamber then found that the reports “contain a combination of factual findings and opinions on the location and manner of death, as well as identifying the alleged perpetrators, the Chamber is of the view that they are not appropriate for admission from the bar table as doing so would deprive the Accused of his right to challenge the findings contained therein.”[8] This is necessary in order to give the Accused to inquire as to the veracity of the their contents.[9] The Chamber concluded by noting that, “admission of documents through the bar table may alleviate the concerns associated with conducting an expeditious trial, those concerns do not outweigh the importance of maintaining a fair trial.”[10]

Prosecutor v. Šešelj[11]

Order on the Letter to the President by the Legal Advisor to Vojislav Šešelj

On 22 February 2012, the legal advisor the Accused notified the President of the Tribunal that members of the defense team “were not allowed a privileged visit” with the Accused. The President ordered the Registry to respond within five-days to this letter.

In the Contempt Case of Milan Tupajić[12]

Public Redacted Version of “Judgement on Allegations of Contempt” Issued on 24 February 2012

Background

Mr. Tupajić was called to testify in the Karadžić case and refused to go to the Netherlands to testify stating in two communications that his health would not permit him to testify.[13] The Chamber found that his health related excuse was insufficient and issued an order in lieu of indictment charging him with contempt of court.[14] The Chamber found Mr. Tupajić guilty of contempt for failure to comply with the subpoenas to testify.

Reasoning

The Chamber considered that the evidence produced at trial was insufficient to justify the Mr. Tupajić’s failure to comply with the subpoenas, in part shown by the fact that he attended his own contempt trial without incident.[15] Mr. Tupajić also raised another defense, however, it was completely redacted out of the public judgment so it cannot be summarized here. The Chamber sentenced him to two-months in prison with credit for times served.

ICC

Prosecutor v. Gbagbo[16]

Decision on OPCV’s “Request to appear before the Chamber pursuant to Regulation 81(4)(b) of the Regulations of the Court on the specific issue of victims’ application process”

Background

The Single Judge issued a decision ordering the Registry to explore the possibility of implementing a “collective approach” to victim applications “for the purpose of encouraging collective applications”.[17] The Office of Public Counsel for Victims (OPCV) then filed a motion asking to make submissions on this “collective application approach.”[18] The Single Judge denied the motion.

Reasoning

The Single Judge noted that the Regulations allow the OPCV to make submission regarding “specific issues.”[19] Furthermore, the Single Judge reiterated the finding of Trial Chamber I that the core function of the OPCV is “to provide support and assistance to the legal representatives of victims and to victims who have applied to participate.”[20] Given the fact that there are at present no victims admitted to participate or victim applications and the fact that the OPCV’s submissions relate to “the appropriate interpretation of legal provisions in the Statute and the Rules”, the Single Judge determined that it would be inappropriate to grant the OPCV’s motion at this juncture.[21]

Prosecutor v. Muthaura, Kenyatta & Ali[22]

Decision on the “Observations on the ‘Directions on the submission of observations pursuant to article 19 (3) of the Rome Statute and rule 59 (3) of the Rules of Procedure and Evidence’”

&

Prosecutor v. Ruto, Kosgey & Sang[23]

Decision on the “Observations on the ‘Directions on the submission of observations pursuant to article 19 (3) of the Rome Statute and rule 59 (3) of the Rules of Procedure and Evidence’”

Background

On 23 January 2012, the Pre-Trial Chamber rendered its decisions in the above-mentioned cases confirming the charges against four of the defendants.[24] In response to the appeals filed against the confirmation decisions, the Office of Public Counsel for victims (OPCV) filed its “Observations on the ‘Directions on the submission of observations pursuant to article 19 (3) of the Rome Statute and rule 59 (3) of the Rules of Procedure and Evidence’” claiming, inter alia, that it should be allowed to make submissions during the appeal for all those victims who have communicated to the Court even if their applications are still pending.[25] The Appeals Chamber rejected the request.

Reasoning

The Appeals Chamber noted that the legal framework of the Court does not contain specific rules on victim participation in an appeal against a confirmation decision under articles 19(6) and 82(1)(a) of the Statute, which has lead to the creation of a system in the case law of the Court allowing those victims that made observations about the jurisdiction or the admissibility of the case before the Pre-Trial Chamber to make submissions on appeal.[26] No invitation was extended to the OPCV to make observations in this appeal because “it had not submitted any observations on the Jurisdictional Challenge before the Pre-Trial Chamber.”[27]

Prosecutor v. Bemba[28]

Decision on the Supplemented Applications of the Legal Representatives of Victims to Present Evidence and the Views and Concerns of Victims

Background

Over the past year, the Trial Chamber has been ruling on the issue of the modality for allowing victims to present evidence and their views and concerns.[29] On 21 December 2011, the Chamber ordered the Legal Representatives for the victims to, inter alia, file a list of eight victims to present views and a summary of their views and evidence to be evaluated by the Chamber.[30] On 9 February 2012, the Prosecution and Defense filed their observations on the proposed victims’ evidence and views.[31] The Defense objected and argued, inter alia, that the views should be restricted to the incidents[32] related to the criminal charges in the case. In order to decided on which victims could present evidence and/or views, the Chamber set out its view on the law of victim participation.

Reasoning

The Chamber started by emphasizing that the right to introduce evidence pertaining to the guilt or innocence of the accused primarily with the parties.[33] However, victims may present their views and concerns in person where doing so is not inconsistent with the rights of the accused and a fair and impartial trial.[34] They may also present evidence at the behest or after authorization of the Chamber.[35] The Chamber then emphasized that “views and concerns” are not evidence to be considered in the determination of guilt, but statements that may help the Chamber interpret the evidence.[36]

The Chamber set out that the determination of which victims can present their views in person is to be made on a case-by-case basis and that those who represent large groups and particular events will be favored.[37]

When it comes to the admission of evidence, the Chamber split on whether to follow Trial Chamber I or Trial Chamber II on the legal standard for authorizing victims to give evidence.[38] The Chamber selected the criteria: (1) whether the evidence will be unnecessarily repetitive; (2) whether the evidence is sufficiently related to issues which the Chamber must decided; (3) whether the evidence is typical of a larger groups and; (4) whether the evidence will likely bring to light new information relevant to the charges.[39]

The Chamber then addressed each victim individually to determine if he or she should be permitted to present evidence or view and concerns.

Prosecutor v. Gaddafi & Al-Senussi[40]

Directions of the Appeals Chamber

Pre-Trial Chamber I denied the request of Ms. Mishana Hosseinioun for leave to file an amicus curiae brief with the Court related to the case against Mr. Gaddafi and she promptly filed a direct appeal with the Appeals Chamber. The Appeals Chamber issued an order requesting the views of the parties (the Prosecutor and the Office of the Public Counsel for the defense) on the admissibility of the appeal. You can find our views on the admissibility of the appeal here.

ECCC

Case 004[41]

Decision on Defence Support Section Request for a Stay in Case 004 Proceedings Before the Pre-Trial Chamber and for Measures Pertaining to the Effective Representation of Suspects in Case 004

Background

The Defence Support Section filed a motion to stay proceedings so that they may contact those under investigation in case 004 in order to provide legal representation in the proceedings before the Pre-Trial Chamber in that case.[42] The Pre-Trial Chamber declared the motion inadmissible.

Reasoning

The Chamber observed that the right to legal representation only attaches at the time a person is brought before the Court or at the time a person is charged with a crime, something that has not occurred in this case as the Co-Investigating Judges have not ruled on the International Co-Prosecutor’s motion for arrest.[43] Because the investigations are still pending, the suspects have not been charged or taken into custody and the case is still with the Co-Investigating Judges, the Pre-Trial Chamber decided that the issue of representation was outside their jurisdiction at the moment.[44]


[1] IT-03-69-T, 21 February 2012.

[2] Ibid. at ¶ 1.

[3] Ibid. at ¶ 4.

[4] Ibid. at ¶ 1.

[5] Ibid. at ¶ 2.

[6] Ibid. at ¶¶ 7-8.

[7] Ibid. at ¶ 9.

[8] Ibid. at ¶ 10.

[9] Ibid.

[10] Ibid.

[11] IT-03-67-T, 23 February 2012.

[12] IT-95-5/18-R77.2, 24 February 2012

[13] Ibid. at ¶¶ 1-5.

[14] Ibid. at ¶ 6.

[15] Ibid. at ¶ 21.

[16] ICC-02/11-01/11, 20 February 2012.

[17] Ibid. at ¶ 3.

[18] Ibid. at ¶ 4.

[19] Ibid. at ¶ 6.

[20] Ibid. at ¶ 9.

[21] Ibid. at ¶¶ 10-11.

[22] ICC-01/09-02/11 OA 4, 20 February 2012.

[23] ICC-01/09-01/11 OA 3 OA 4, 20 February 2012.

[24] Ibid. at ¶ 6. Since the substance of the two decisions are identical, reference will only be made to the paragraphs in the Ruto et. al. case.

[25] Ibid. at ¶ 9.

[26] Ibid. at ¶ 13.

[27] Ibid. at ¶ 14.

[28] ICC-01/05-01/08, 22 February 2012.

[29] Ibid. at ¶¶ 1-3, 5-8.

[30] Ibid. at ¶ 4.

[31] Ibid. at ¶ 9.

[32] Ibid.

[33] Ibid. at ¶ 13.

[34] Ibid. at ¶¶ 14-15, 17.

[35] Ibid. at ¶ 18.

[36] Ibid. at ¶ 19.

[37] Ibid. at ¶¶ 21-22.

[38] Ibid. at ¶ 24.

[39] Ibid.

[40] ICC-01/11-01/11 OA, 23 February 2012.

[41] Case File n. 004/29-07-2011-ECCC/(PTC01), 20 February 2012.

[42] Ibid. at ¶¶ 1-2.

[43] Ibid. at ¶¶ 11-12.

[44] Ibid. at ¶ 13.

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Challenges for Customary Humanitarian Law

The State Department of the United States of America has recognised that a number of rules set forth in the International Committee of the Red Cross (ICRC) Study on Customary International Humanitarian Law[1] have achieved customary international law status. Nevertheless, the United States expressed doubts about the methodology used to determine that certain rules, argued to be insufficiently grounded in fact and evidence, and that lead to the country’s rejection of the Study. Specifically, the United States expressed concern in relation to the customary status of the Geneva Conventions and Protocols, and questioned that customary humanitarian law can be applied to both international and non-international armed conflicts.

In the view of the United States, the Study incorrectly declared rules to have customary law status, since the State practice analysed is insufficiently dense to meet the ‘extensive and virtually uniform’ standard required. In their opinion, the Study placed too much emphasis on materials, such as military manuals and other published guidelines, and also extensively relies on non-binding and ‘consensus-based’ resolutions of the General Assembly and other international actors. All in all, the United States affirmed that the Study does not pay due regard to the practice of ‘specially affected’ States, tending to regard as equivalent the practice of States without distinction of history, experience, and ‘greater quantity and quality of practice’. Furthermore, the US is critical of the opinio juris being analysed together with practice, as an act that reflects ‘both practice and legal conviction’, and not demonstrating ‘separately’ the existence of opinio juris. Specifically, the US found debatable the rules for the protection of humanitarian relief personnel, the damages prohibitions, and right to establish universal jurisdiction.[2]

It is commonly observed that Article 38 of the Statute of the International Court of Justice (ICJ) contains the injunction that the Court determines customary law based on “evidence of a general practice accepted as law”.[3] Practice by itself is not evidence of the existence of custom, and thus the norm must be “accepted as law”.[4]

According to the jurisprudence of the ICJ new norms require both practice and opinio juris before they can be regarded as representing customary international law. In the North Sea Continental Shelf case, the ICJ also considered the ‘psychological’ requirement of opinio juris to include “the consciousness of conforming to a rule, that if the acts of practice are to be attributed to a motive other than such consciousness, they cannot show opinio juris”.[5] Since the opinio juris is a state of mind, it is problematic to ascertain in the case of a State. However, opinio juris can be deduced from the State’s pronouncements and actions that are taken through its officials, in particular those actions to constitute the ‘practice’ element of customary international law. In consequence, State practice and opinio juris are to be set together, not separately. In the Nicaragua case, the Court declared not to consider that, for a rule to be established as customary law, the corresponding practice must be in absolute rigorous conformity with the rule. The Court deemed as sufficient that the conduct of States should in general be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally be treated as breaches of that rule, not as indications of the recognition of a new rule.[6] Similarly, the ICJ decided in North Sea case that treaty provisions have passed into acceptance of opinio juris and thus are binding to all States, even those which have never become parties to the Convention. A process that is defined as ‘perfectly possible’, and “even without the passage of any considerable period of time”.[7]

It is in principle possible for a State not to accept a rule which is in the process of becoming standard international practice. In clear and coherent opposition States are able to exempt themselves from the rule in formation when it does become rule of law. This is generally called ‘persistent objector’ status. Thus, the problem of the persistent objector remains open alongside rules of special customary law. Special customary law is a customary norm that only applies between a limited number of States, as the ICJ found in the Right of Passage over Indian Territory case.[8] One relevant instance of the persistent objector was identified in the reasoning of the Asylum case. Peru had the status of persistent objector.[9] This same notion identified in the former case is traced back to the Fisheries case between the United Kingdom and Norway, where the ICJ defined persistent objection as “always opposed to any attempt to apply it to their jurisdiction”.[10] If a single State does not claim to be a persistent objector, and entitled to rely on rules different from those generally in force, such a claim could only be maintained as the result of a general clear coherent action by that State.

The suggestion of the United States as a persistent objector by reason of its objection to the norms identified by the ICRC Study, and therefore not necessarily bound by such rules, can neither rest on the assertion of a special custom nor a persistent objection.

The ICRC Study was initiated in December 1995, by the 26th International Conference of the Red Cross, with the purpose of providing uniform regulations for armed conflict. The first volume of the Study is divided into five parts. The first part contains a discussion of the principles of distinction and proportionality. The second part is a declaration of the protected persons and objects. The third part discusses permitted and prohibited methods of warfare. The fourth part relates to the use of weapons, and the last part concerns the treatment of civilians and personnes hors de combat. There is a section on Implementation that concludes the volume and concerns compliance, enforcement, responsibility and reparation. The second volume is divided into two parts, and gathers the evidence and sources for the previous part. It includes treaties and other relevant instruments, military manuals, legislation, case-law, practice of international organizations and international judicial bodies, together with the practice of the ICRC.

The Study sets out that rules, and the limits they impose, should be equally applicable in international and non-international armed conflicts by providing extensive evidence of the application of customary international rules in these contexts. In the view of the ICRC, States assumed this premise in 1949 with the adoption of common Article 3 of the Geneva Contentions, which was recognized through subsequent State practice in both international and non-international armed conflicts.[11]

The Study defines as State practice the “physical and verbal acts of States”[12]. It considers that the combined effect of what States say and what they actually do to be regarded as ‘operational practice’. The Study sets out that national legislation is State practice, which is relevant in the formation of international customary law. Evidence of customary law can be obtained from numerous sources, including administrative acts, legislations, court’s decisions, and activities on the international stage, for instance treaty-making. A State is composed by governmental departments and representatives that testify their engagement through records, such as memories and opinions, publications and manuals. National legislation is also relevant to repress war crimes and grave breaches of humanitarian law, as well as for the practice of universal jurisdiction. Similarly, the Study determines that military manuals are a rich source that cover a wide range of premises, and which are part of the internal legal rules of armed forces. They enforce a particular behaviour in specific situations of armed conflict. General orders and instructions usually emanate from a commander-in-chief, or from the commander of a relevant section. They do not necessarily reflect what States have actually done, but rather what States intend to do. A military manual may represent numerous precedents and therefore a substantial practice, reflected in the cases of the United Kingdom, Germany and United States. The Study contains a representative list of 52 military manuals from all parts of the world. Most of them were published between 1990 and 1995 as a result of the joint campaign launched by the United Nations and the ICRC to promote national implementation of international humanitarian law. Promulgating a military manual means that a State makes a contribution to shape international customary law.

The Study affirms that decisions of international courts are subsidiary sources of international law. They do not constitute State practice, nevertheless it stresses that a finding by an international court that a rule of customary international law exists institutes persuasive evidence to that effect, and influences the subsequent practice of States and international organizations. The Study also makes extensive use of the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Court (ICC) Statutes. Throughout the travaux preparatoires, it is clear that the intention behind the drafting of the Statutes was to stay within the framework of customary law. For instance, the ICTY Trial Chamber in Furundzija declared that “in many areas the Statute may be regarded as indicative of the legal views, i.e., opinio juris of a great number of States”.[13] Similarly, in Tadic the ‘grave breaches’ of the Geneva Conventions are also central, as is their application to non-international armed conflict.[14] Consequently, in the drafting of the Rome Statute there was general agreement that the definitions of crimes in the jurisdiction of the ICC were to reflect existing customary international law.[15]

The United Nations Secretary-General report on the International Criminal Tribunal for Rwanda gave an account of the appraisal of its customary status, with the drafting assistance of the United States and New Zealand. However, resolutions of the General Assembly, as in the present case, often entail disputes concerning their binding capacity, and a negative answer is regarded by some as synonym of irrelevance. In the General Assembly, despite its lack of legislative authority, the recommendations issued are often applied with significant relevance as exemplified in the Universal Declaration of Human Rights. This matter of capacity was also addressed by the ICJ in the Namibia case, and it was found that the General Assembly resolutions, while manifestly not binding, where “not without legal effect”[16] given the existence of a right to terminate and monitor the mandate. The Court defined the recommendatory powers of the General Assembly as determinations with an operative design, in interpretation of the Charter of the United Nations, and as applicable as to their function. The ICJ defined this repeated practice in interpreting the treaty as establishing practice, that if the treaty concerns matters of international law, it can ultimately “harden into custom”.[17] Nonetheless, it is also recognized that General Assembly resolutions cannot be a ‘substitute’ for ascertaining custom. A source of definition before such conflicts can be the analysis of the subject-matter of the resolution in question, their binding or recommendatory nature, the majorities supporting the adoption, and the repeated practice in relation to them as evidence of opinio juris. For this purpose, a list containing the voting records of all cited General Assembly resolutions was included in the Study.[18]

ICRC statements are enclosed to the Study because of the international legal personality that the Committee enjoys. As seen in the 1965 Vienna 20th International Conference, with the adoption of Resolution XXVIII, which declared numerous common provisions as to those of the Study, it was soon reaffirmed by the General Assembly Resolution 2444. These principles have since been recognised as belonging to customary law. Nevertheless, these statements of the ICRC in the Study are never primary sources of evidence supporting customary law. NGOs statements are included in the second volume under ‘other practice’, and as a residual category without any influence in the determinations of custom. Thus, the relevant practice is the one cited in each rule.[19]

Concerning the United States of America, reports and statements are analysed with respect to targeting decisions in the Korean, Vietnam and the Gulf War. Operational practice is also connected to military operations. Concerning the Protocols, the US is party to the second although not the first, and Amended Protocol II to the Convention on Certain Conventional Weapons, which contains a number of rules identical to the first non-ratified Protocol, and thus the US has supported the principle of distinction and proportionality that applies to international and non-international armed conflicts by signing this treaty and through its support to the work of the ad hoc international criminal tribunals.  

Since the Geneva Conventions and Protocols, the ICRC Study represents the most notable achievement in humanitarian law. The United States reticence on the legal effects of the Study is blueprinted by their practise and policies, which are a result of their current preoccupations. The wars that are analysed in the ICRC Study that define the opinio juris and state practise of the United States of America are evidence of an extremely different period and geo-interests. In Korea or Vietnam there were no asymmetric challenges that would press the ‘drone’ priorities. The Cold War was based on a deterrence that is contrary to the current need for justifying ‘surgical’ operations in failed or rogue states. The difference of the contexts is specially manifested considering the Advisory Opinion on the Legality of the Threat of Nuclear Weapons, which is the one and only application possible to the role of the persistent objector, contrary to what the United States of America claim. The framework imposed by international law is based on a matter of ‘intentionality’ and ‘crystallisation’ on behalf of the ‘virtual’ majority of states that defines the binding capacity of the unwritten rules of customary law. In this respect if the rules are evident enough, there should be not a need for their compilation. On the other hand, perhaps for a compilation of customary law in the next century the US opinion can be compiled as evidence, since custom, by definition, is the law ‘as it’s been’, and not ‘the law that is to be’.[20]


[1] Herein after: ‘Study’.

[2] J. Bellinger & W. Haynes, A US government response to the International Committee of the Red Cross study Customary International Humanitarian Law, 866 Reports and Documents of the International Review of the Red Cross, Vol. 89 (2007) 443 et seq.

[3] Statute of the International Court of Justice; for instance at: Statute of the International Court of Justice, at M. Evans, International Law Documents, Oxford University Press 8ed. (2007) 30 et seq; H. Thirlway, The Sources of International Law, in M. Evans (ed.), International Law, 2nd ed., Oxford (2006) 121 et seq.

[4] Ibid.

[5] North Sea Continental Shelf Case (Denmark/The Netherlands v. Federal Republic of Germany), Judgement of 20 February 1969, 1960 ICJ Rep. at 3.

[6] Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, 1986 ICJ Rep, at 14.

[7] North Sea Continental Shelf Cases (Denmark/The Netherlands v. Federal Republic of Germany), Judgement of 20 February 1969, 1960 ICJ Rep. at 3.

[8] Case Concerning Right of Passage Over Indian Territory (Portugal v. India), Merits, Judgment of 12 April 1960, 1960 ICJ Rep. at 6.

[9] Asylum Case (Colombia v. Peru), Judgment of the 20 November 1950, 1950 ICJ Rep. at 266.

[10] Fisheries Case (United Kingdom v. Norway) Judgment of 18 December 1951, 1951 ICJ Rep. at 116.

[11] J. Henckaerts & L. Doswald-Beck, Customary International Humanitarian Law, ICRC Cambridge University Press (2005); See also: C. Greenwood, The Law of War (International Humanitarian Law) in: M. Evans, (ed.), International Law, 2nd ed., Oxford (2006) 789 et seq and the Geneva Conventions of 1949, with Additional Protocol I and Additional Protocol II.

[12] J. Henckaerts & L. Doswald-Beck, Customary International Humanitarian Law, ICRC Cambridge University Press (2005) at 28.

[13] Furundzija Case: Judgment of the Trial Chamber, JL/PIU/372-E, 10 December 1998.

[14] Tadic Case: Judgment of the Appeals Chamber, H/ P.I.S./ 419-e, 15 July 1999.

[15] Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (1993) UNSC Res.827 at M. Evans, International Law Documents, Oxford University Press 8ed. (2007) 352 et seq; Rome Statute of the International Criminal Court, at M. Evans, International Law Documents, Oxford University Press 8ed. (2007) 30 et seq.

[16] South West Africa Cases (Ethiopia/Liberia v. South Africa) Advisory Opinion, Judgment of 21 December 1962, 1962 ICJ Rep. at 319.

[17] Ibid.

[18] J. Henckaerts & L. Doswald-Beck, Customary International Humanitarian Law, ICRC Cambridge University Press (2005).

[19] J. Henckaerts & L. Doswald-Beck, Customary International Humanitarian Law, ICRC Cambridge University Press (2005).

[20] Further relevant scholarly debate can be found, for instance, in: D. Turns, Weapons in the ICRC Study on Customary International Humanitarian Law, 2 Journal of Conflict & Security Law, Vol. 11 (2006) 201 et seq; F. Kalshoven & L. Zegveld, Constraints on the Waging of War. Geneva; International Committee of the Red Cross (2001); B. Jia, Customary International Humanitarian Law, 2 Chinese Journal of International Law, Vol. 4 (2005) 739 et seq; M. Bothe, Customary International Humanitarian Law, 8 Yearbook of International Humanitarian Law 143 et. seq. (2005); R, Cryer, Of Custom, Treaties, Scholars and the Gavel: The Influence of the International Criminal Tribunals on the ICRC Customary Law Study, 2 Journal of Conflict & Security Law, Vol. 11 (2006) 239 et seq; A. Cassese, The Geneva Protocols of 1977 on the Humanitarian Law of Armed Conflict and Customary International Law, UCLA Pacific Basin Law Journal (1984) 57 et seq; Y. Dinstein, The ICRC Customary International Humanitarian Law Study, 82 Int’l L. Stud. Ser. US Naval War Col. 99 (2006) 99 et seq; Y. Dinstein, The Interaction Between Customary International Law and Treaties, 322 Recueil des Cours 243 (2006) 383 et seq; K. Dormann & L. Maresca, Louis, The International Committee of the Red Cross and Its Contribution to the Development of International Humanitarian Law in Specialized Instruments, 5 Chicago Journal of International Law (2005) 217 et seq; D. Fleck, The Impact of the ICRC Study, 2 Journal of Conflict & Security Law Vol. 11 (2006) 179 et seq; J. Henckaerts, Customary International Humanitarian Law: a response to US comments, 866 Reports and Documents of the International Review of the Red Cross, Vol. 89 (2007) 473 et seq; L. Hogue, Identifying Customary International Law of War in Protocol I: A Proposed Restatement, Loyola of Los Angeles International & Comparative Law Review, Vol.13 (1991) 279 et seq; T. Meron, The Geneva Conventions as Customary Law, 81 American Journal of International Law (1987) 348 et seq; W.  Parks, The ICRC Customary Law Study: A Preliminary Assessment, 99 American Society of International Law (2005) 208 et seq; J. Paust, The Importance of Customary International Law During Armed Conflict, 12 ILSA Journal of International & Comparative Law (2006) 601 et seq; P. Rowe, The Effect on National Law of the Customary International Humanitarian Law Study, 2 Journal of Conflict & Security Law Vol. 11 (2006) 165 et seq.

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Review of International Tribunal Decisions for the week of February 13, 2012

This week’s review has cases from the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Court (ICC), the Special Tribunal for Lebanon (STL), the European Court of Human Rights (ECtHR) and the African Court of Human and Peoples’ Rights (AfCHR). The issues range from the right to cross-examine witnesses, the admission of amicus briefs, early release of those convicted of international crimes, confidentiality of documents and the jurisdiction of human rights courts.

International Criminal Law

ICTY

Prosecutor v. Karadžić[1]

Decision to Call Dražen Erdemović for Cross-Examination

Background

In 2009, the Trial Chamber issued a decision on a prosecution motion to introduce prior testimony in the Popović et. al. case of the witness Dražen Erdemović without needing to recall him for further testimony or examination by the Accused as the testimony was mostly cumulative of other evidence against the Accused.[2] In 2011, the Accused filed a motion to call the witness for cross-examination based on, inter alia, new testimony by the witness in the Perišić case and contradictory testimony of other prosecution witnesses.[3] The Chamber granted the motion.

Reasoning

The started by noting that the witness’ testimony and that of the other relevant witnesses concern the events of 10 and 11 July 1995 in Srebrenica and their personal involvement in those events.[4] The witnesses’ testimonies contract each other on important facts that could impact the credibility of the witnesses.[5]

Prosecutor v. Gotovina & Markač[6]

Decision on Application and Proposed Amicus Curiae Brief

Background

The application to file an amicus brief was filed by a collection of “experts” on the use of artillery during armed conflict and included three expert reports by individuals who appeared to either work for, or had worked with, the Gotovina defence.[7] The Appeals Chamber denied the request for permission to file amicus submissions.

Reasoning

The Chamber started by noting that amicus submission shall be limited to legal questions and shall not address matters of fact.[8] The Chamber also noted that the rules for making an amicus application require that the applicants disclose any connection they may have, or may have had, with any of the parties, something that the applicants did not do in this case.[9] Considering that the proposed amicus submission dealt with factual issues and this lack of disclosure, the Chamber denied the application to make amicus submissions.[10]

Prosecutor v. Stanišić & Simatović[11]

Decision on Stanišić Defence Motion for Judicial Notice of Adjudicated Facts

Background

The Stanišić Defence requested the Chamber to take notice of whole portions of the trial and appeals judgments in Krajišnik, Martić, Simić et. al. and Gotovina et. al.[12] The Prosecution objected to the Defence’s indication of sections of the judgments and not individual facts.[13] The Chamber partially granted the motion.

Reasoning

The Chamber started by noting that under the applicable rules, it has discretion “to determine which adjudicated facts to recognize” as long as a balance is achieved between judicial economy and the “fundamental right of the accused to a fair trial” and, inter alia, the fact is “distinct, concrete and identifiable”.[14] The Chamber only considered those facts that were contested by the Prosecution or that were particularly problematic in the Chamber’s view.[15] Where the proposed fact is a citation from a document the Chamber will only take notice of the fact that the document contained such text, not the veracity of that text.[16] In the same way, when the proposed fact is a statement by an individual or entity, the Chamber will take notice of the fact that the person or entity made that statement, not the truth of what was asserted.[17] The Chamber decided not to accept facts there were treated unfavourably in the prior Tribunal judgments or those facts that were merely recited as part of the evidence presented at trial but were not accepted by the Tribunal.[18] Additionally, the Chamber decided that accepting facts in the form of quotations where the document quoted was already in evidence would be unnecessarily duplicative and therefore those facts would not be accepted by way of judicial notice.[19]

Prosecutor v. Stanišić & Župljanin[20]

Order Assigning Counsel for Witness Tomislav Kovač

The Trial Chamber decided to call the witness pursuant to Rule 98 as a chamber’s witness.[21] During initial contacts with the Chamber’s Legal Officer, the witness requested the assistance of counsel out of fear that he may incriminate himself.[22] The Chamber noted that pursuant to Rule 90(E) that witnesses may object to giving self-incriminatory testimony and therefore ordered pursuant to Rule 54 that the Registry appoint counsel for the witness.[23]

ICTR

Prosecutor v. Rugambarara[24]

Decision on the Early Release Request of Juvénal Rugambarara

Background

Mr. Rugambarara was convicted of extermination as a crime against humanity in 2007 and sentenced to 11 years in prison.[25] After serving three-fourths of his sentence, he applied for early release.[26] The President of the Tribunal granted his request.

Reasoning

Rule 125 requires that the President consider the gravity of the crime, the accused’s substantial cooperation with the Prosecutor, treatment of similarly situated prisoners and the prisoner’s demonstration of rehabilitation in deciding on early release. Importantly, in this case, the President noted that only one other prisoner had been granted early release from the ICTR, and this was after having served three-fourths of his sentence.[27] This is in contrast to the jurisprudence of the ICTY where a prisoner becomes eligible for early release after serving two-thirds of his sentence.[28] In fact, the President acknowledged that the ICTR will not consider early release before the prisoner has served three-fourths of his sentence.[29] All else being equal, the President decided to grant early release as Mr. Rugambarara had already served three-fourths of his sentence.[30]

ICC

Prosecutor v. Gaddafi & Al-Senussi[31]

Decision on the ‘Application of Mishana Hosseinioun for Leave to Appeal Against Decision on Application Under Rule 103’

Background

On 2 February 2012, the Pre-Trial Chamber denied the request of Ms. Mishana Hosseinioun to submit amicus observations to the Court regarding the detention and legal representation of Saif Al-Islam Gaddafi.[32] In response Ms. Hosseinioun filed an application for leave to appeal with the Pre-Trial Chamber and a direct appeal with the Appeals Chamber. In this decision, the Pre-Trial Chamber rejected Ms. Hosseinioun’s request for certification to appeal (for more on the pending motion before the Appeals Chamber see our blog post here).

Reasoning

The Chamber considered that Rule 82(1) allowing for certification only applies to the parties to the proceeding and that Ms. Hosseinioun is not a party to the proceedings.[33] The fact that she is not a party deprived Ms. Hosseinioun of any standing to appeal the decision pursuant to Rule 103.[34] The Chamber also noted that the issue raised in the application for appeal, the Accused’s right to legal representation and to be heard on the venue of his trial, were not at play in the impugned decision.[35]

STL

Prosecutor v. Ayyash et. al.

Decision on Prosecutor’s Request of 6 February 2012 to Reclassify the Indictment of 10 June 2011

The indictment was filed “confidential and ex parte” on 10 June 2011 and the Prosecution requested that it be reclassified “confidential” so that it could be disclosed to the newly appointed defense counsel. The Pre-Trial Judge granted the motion and noted that in the future such issues can be dealt with in an “administrative manner.”

Human Rights Law

ECtHR

Antwi & Others v. Norway[36]

Chamber Decision

Background

One of the applicants was a Ghanaian national who married a Norwegian national and was ordered to leave Norway and not to return for five years. He originally arrived in Norway on a false passport in 1998 that indicated he was a Portuguese national. The Court rejected his claim of a violation of his right to protection of private and family life based on his deportation and ban on returning to Norway for five years.

Reasoning

The Court observed that the applicant had been impermissibly present in Norway for his entire permanence in that country. Therefore, he could have been deported at any time regardless of the fact that he eventually obtained work and residence permits. The Court found that Norway struck a permissible balance between the applicants interests in maintaining family unity and the State’s interest in effective immigration control.

AfCHPR

National Convention of Teachers Trade Union v. The Republic of Gabon[37]

Decision

Article 5(3) of the African Charter allows individuals and NGO’s with observer statuts before the African Commission to bring cases to the AfCHPR when the State in question has made a declaration under Article 34(6).[38] The Applicant did not have observer status and Gabon had not made a declaration.[39]The AfCHPR therefore declined to entertain the case against Gabon.


[1] IT-95-5/18-T, 13 February 2012.

[2] Ibid. at ¶¶ 1-2.

[3] Ibid. at ¶¶ 3-4.

[4] Ibid. at ¶¶ 7-8.

[5] Ibid. at ¶¶ 8-9.

[6] IT-06-90-A, 14 February 2012.

[7] Ibid. at ¶¶ 1, 8, 11.

[8] Ibid. at ¶ 3.

[9] Ibid. at ¶ 12.

[10] Ibid. at ¶¶ 11, 13.

[11] IT-03-69-T, 16 February 2012.

[12] Ibid. at ¶¶ 1-2.

[13] Ibid. at ¶ 3.

[14] Ibid. at ¶¶ 4-5.

[15] Ibid. at ¶ 6.

[16] Ibid. at ¶ 7.

[17] Ibid. at ¶ 8.

[18] Ibid. at ¶ 9, 11.

[19] Ibid. at ¶ 12.

[20] IT-08-91-T, 16 February 2012.

[21] Ibid. at p. 2.

[22] Ibid.

[23] Ibid.

[24] ICTR-00-59, 8 February 2012.

[25] Ibid. at ¶ 1.

[26] Ibid. at ¶ 2.

[27] Ibid. at ¶ 12.

[28] Ibid. at ¶ 11.

[29] Ibid. at ¶ 12.

[30] Ibid. at ¶¶ 16-17.

[31] ICC-01/11-01/11, 14 February 2012.

[32] Ibid. at p. 3.

[33] Ibid. at p. 4.

[34] Ibid.

[35] Ibid.

[36] Application no. 26940/10. The information for this summary was taken from the press release.

[37] Application 012/2011, 15 December 2011 (Only recently posted on the website).

[38] Ibid. at ¶¶ 8-9.

[39] Ibid. at ¶ 10.

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The ECCC and the Missing International Co-Investigating Judge

On 2 December 2011, Mr. Laurent Kasper-Ansermet, the International Reserve Co-Investigating Judge issued a decision ordering the resumption of the judicial investigation in Case 003 at the Extraordinary Chambers in the Courts of Cambodia (ECCC).[1] The “decision” to reopen the investigation was the product of “reconsidering” several requests from the International Co-Prosecutor, which had been rejected by the Co-Investigating Judges when Mr. Kasper-Ansermet’s predecessor was in office.[2] Mr. Kasper-Ansermet claimed the ability to issue the “decision” on the fact that the notice terminating the investigation was not a “Closing Order” or “an order terminating the investigation” within the meaning of the applicable rules.[3] He also claimed the authority to issue the “decision” because the Pre-Trial Chamber’s inability to decide on the International Co-Prosecutor’s appeal of the denial of his requests left the Co-Investigating Judges seized of Case 003.[4]

For guidance on how to decide on the reconsideration of the requests, Mr. Kasper-Ansermet turned to the applicable practice of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR).[5] Based on these precedents, he decided that the International Co-Prosecutor’s motion was valid and that the reasons for previously rejecting it were unfounded.[6] He then considered that the accused in Case 003 have a right to be heard,[7] the victims have a right to justice and the civil parties have a right to participate and that the conclusion of the investigation violated the right of all the parties.[8]

In the following days, the dispute leapt from the level of the Co-Investigating Judges and landed in the laps of the judges of the Pre-Trial Chamber. On 3 February 2012, the President of the Pre-Trial Chamber returned the documents related to the dispute over whether to reopen the investigation pursuant to an “Interoffice Memorandum” which claimed that Mr. Kasper-Ansermet “does not have enough qualification to undertake his duty according to legal procedure in force”.[9] The decision to return the documents as a summary administrative procedure appears to have been taken by only the national judges of the Pre-Trial Chamber without the input of the international judges.[10]

The international judges, in response, issued a full-length reasoned decision on why they would have found Mr. Kasper-Ansermet to have standing to file the “decision” and why they believed that the failure of the Pre-Trial Chamber to make an official “judicial” as opposed to an administrative decision means that the reopening of the investigation is to proceed.[11] In a nutshell, the international judges felt that the incumbent International Reserve Co-Investigating Judge assumes all the rights and duties of the International Co-Investigating Judge when that latter office becomes vacant.[12] The judges also set out that, because they view the issue as a live one, the investigative steps must proceed pursuant to Rule 72(4)(d) by default.[13]

On 9 February 2012 Mr. Kasper-Ansermet issued a press release summarizing his “decision’s” contents and justifying its issuance.[14] He then asserted, before the issuance of the international judges’ “dissent”, that the failure of the Pre-Trial Chamber to reach the merits meant that the investigation was to proceed in accordance with Rule 72.[15]

The following day, 10 February 2012, the National Co-Investigating Judge issued a press-statement wherein he lambasted Mr. Kasper-Ansermet alleging, among other things, that the decision and press release were made with “ill intentions.”[16] He went on to say that references to the Internal Rules of the ECCC were “purely an exaggeration”, that Mr. Kasper-Ansermet was not authorized “in the capacity as an International Reserve Co-Investigating Judge, to undertake any procedural actions while the seat of the International Co-Investigating Judge is still vacant” and that “[t]he issuance of such a public statement by Mr. Ansermet furthers the doubt of the National Co-Investigating Judge regarding Mr. Ansermet’s professionalism —  is he a judge or a press officer?”[17]

This is not the first time that the National Co-Investigating Judge and Mr. Kasper-Ansermet have locked horns on the issue of reopening the investigation in Case 003. It is also not likely to be the last. The previous International Co-Investigating Judge resigned over the way Case 003 has been handled and the appearance that the failure to investigate was politically motivated.[18] In the press release announcing his departure he noted “the Cambodian Prime Minister during a meeting with the Secretary-General that […] cases [003 and 004] “will not be allowed” did not reflect general government policy.”[19]

The divide between the international judges and the national judges can also be seen in a press release dated 26 October 2011 where the National Co-Investigating Judge laments about critical news reports in the international media that he maintained were based on “the minority opinion of the international judges [of the Pre-Trial Chamber] in relation to the appeal by a Civil Party Applicant.”[20] It also appears in the cases where the Chambers cannot assemble the needed super majority to decide on an appeal with the judges divided over national/international lines.[21]

The question remains as to the legal force of Mr. Kasper-Ansermet’s “decision”. The sad truth is that it probably has no enforceable value at all. Even though the ECCC proclaims itself to be an international tribunal, it is still a product of the Cambodian State and dependent on that State for its practical function. The Cambodian Prime Minister and all the Cambodian judicial officers have acted to shut down the investigations in Cases 003 and 004. The issuance of a “decision” to reopen the judicial investigation by the International Reserve Co-Investigating Judge is unlikely to actually begin an official judicial investigation. According to the Cambodian members of the court he lacks the authority to issue such an order. Even in the event that the international staff at the ECCC begin the investigation without their national counterparts because they believe the order to be valid, it is unlikely that any such investigation will be fruitful without the assistance of Cambodian officials. The only way to remove the obstacle to reopening the investigations is to remove the purely national element of the court and transform it into a truly international institution. However, to do so would require greater involvement by the international community, the lack of which is the precise reason why the ECCC was created as part of the Cambodian system in the first place.


[1] Case File No. 003/07-09-2009-ECCC-OCIJ, 2 December 2012.

[2] Ibid. at pp. 2-3.

[3] Ibid. at pp. 2, 4.

[4] Ibid. at p. 4.

[5] Ibid. at p. 5.

[6] Ibid. at p. 6.

[7] This basis is of dubious value. The accused would probably be happier to not be prosecuted in the first place than have the opportunity to respond to the accusations.

[8] Case File No. 003/07-09-2009-ECCC-OCIJ, 2 December 2012 at p. 7.

[9] Interoffice Memorandum of Judge Prak Kimsan, 3 February 2012.

[10] Case File 003/16-12-2011-ECCC/PTC, Opinion of the Pre-Trial Chamber Judges Downing and Chung on the Disagreement between the Co-Investigating Judges Pursuant to Internal Rule 72, 10 February 2012.

[11] Ibid.

[12] Ibid. at ¶¶ 31-39.

[13] Ibid. at ¶ 50.

[14] Statement by the International Reserve Co-Investigating Judge, http://www.eccc.gov.kh/en/articles/statement-international-reserve-co-investigating-judge-1, 9 February 2012.

[15] Ibid.

[16] Press Statement by the National Co-Investigating Judge, http://www.eccc.gov.kh/en/articles/press-statement-national-co-investigating-judge, 10 February 2012.

[17] Ibid.

[18] Press Release by the International Co-Investigating Judge, http://www.eccc.gov.kh/sites/default/files/media/correctedECCC-INT-CIJ%2010%20Oct%202011%20(Eng).pdf, 10 October 2011.

[19] Ibid.

[20] Statement of the Office of the Co-Investigating Judges, http://www.eccc.gov.kh/sites/default/files/media/5-OCIJ%20Press%20Statement%2026%20October%202011-English.pdf, 26 October 2011.

[21] See, i.e., Case File No: 004/07-09-2009-ECCC/OCIJ (PTC 02), Considerations of the Pre-Trial Chamber Regarding the Appeal Against Order on the Admissibility of Civil Party Applicant Robert Hamill, 14 February 2012.

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Amicus, the ICC and the Case Against Saif Al-Islam Gaddafi

Mishana Hosseinioun and Aisha Gaddafi separately filed motions seeking permission to submit amicus curiae observations to the Pre-Trial Chamber hearing the case before the International Criminal Court (ICC) against Saif Al-Islam Gaddafi. Ms. Hosseinioun requested permission to contact Mr. Gaddafi to assist him in the appointment of legal counsel while his sister requested permission to make “specific” observations to assist the Chamber in “determining whether the Libyan authorities truly desire to provide” the accused with “effective legal representation or to afford him a fair trial.”

When considering the motions, the Pre-Trial Chamber considered that Rule 103 allows amicus curiae observations that are “both desirable and appropriate for the proper determination of the case.” The Chamber then considered that the requests effectively sought “the Chamber’s permission to contact Saif Gaddafi and give him access to what they deem to be appropriate legal advice”. The Pre-Trial Chamber therefore held that the requests fell outside the scope of the Rule 103. As the requests did not comply with the reasoning of the rule, they were denied.[1]

Ms. Hosseinioun filed an appeal of the Pre-Trial Chamber’s decision denying her motion with the Appeals Chamber on 7 February 2012, five days after her motion was denied.[2] She also filed a motion seeking leave to appeal the decision denying her Rule 103 motion with the Pre-Trial Chamber.[3] This blog post concerns only the direct appeal to the Appeals Chamber.

Ms. Hosseinioun’s direct appeal was filed pursuant to Article 82(1)(a) and argues that she is a “party” to the proceeding and that the decision denying her application to submit amicus observations was one “with respect to jurisdiction or admissibility.”[4] Her argument that she should be considered a “party” is based on the fact that if she is not, there will be no right of appeal from the denial of her Rule 103 application.[5] Her argument that the application regards “admissibility” is based on her assertion that she wanted to make submissions about the admissibility of the case against Mr. Gaddafi before the Pre-Trial Chamber considers the issue.[6] Her observations are necessary in her opinion because otherwise the decision on admissibility will be taken without any input from the Accused.[7] She then goes on to make substantive arguments on the legal invalidity of the Pre-Trial Chamber’s decision.[8]

Whatever the merits of Ms. Hosseinioun’s appeal, it should be declared as inadmissible under the Statute and Rules and therefore summarily dismissed.

Article 82 of the Rome Statute of the ICC provides that “Either party” may appeal a “decision with respect to jurisdiction or admissibility.”[9] Articles 12-13 and 17 govern jurisdiction and admissibility respectively. Articles 12 and 13 provide that the ICC will have jurisdiction (and can exercise that jurisdiction) where either the territorial or national State is a party to the Statute, a non-State party accepts the jurisdiction of the Court or the United Nations Security Council refers a situation to the Court which leads to a case.[10] Article 17 ties the concept of admissibility to the doctrine of “complimentarity” excluding ICC action where a State is already proceeding in a given case/situation or has conducted and terminated proceedings.[11] Neither Article of the Statute mentions amicus or Rule 103 on which Ms. Hosseinioun’s application was based.

Evan assuming for the moment that Ms. Hosseinioun should be considered a “party” for the purpose of appealing a decision denying a Rule 103 application, the Pre-Trial Chamber’s denial of her motion was not a decision on admissibility.[12] The reference in Article 82 to “admissibility” refers to decisions based on the criteria set out in Article 17, the only portion of the Statute to directly address admissibility standards. The Pre-Trial Chamber’s denial of Ms. Hosseinioun’s application was based the Chamber’s opinion that the information she desired to submit would not be “desirable for the proper determination of the case”. Granted, Ms. Hosseinioun wishes to make submissions related to the admissibility of the case against Mr. Gaddafi. However, the denial of permission to make submissions on the issue of admissibility and a decision on admissibility are two separate issues.

There is also no substantive right of the Accused to have his or her views considered before the Court makes a decision on admissibility. Article 19(5) provides that a concerned State “shall make a challenge at the earliest opportunity”. Subsection (4) provides that an admissibility challenge may be made “only once by any person or State”. The implication here is that more than one proceeding can be held on the admissibility of a case. For example, an accused may challenge the admissibility of the case even after the State has challenged the admissibility of the situation. The purpose of allowing more than one proceeding is to protect the right of the accused to challenge admissibility while at the same time protecting the legitimate interests of judicial economy and the finality of proceedings. These purposes would be frustrated if an accused were permitted to participate in an admissibility challenge raised by a State and then to raise his or her own separate admissibility challenge.

This case however is particular. Ms. Hosseinioun’s submission suggests a desire (at least on her part) to encourage the Court to find the case admissible. In her appeal she sets out that the current Libyan authorities are torturing those who are in their custody, the trials of those accused of working with the former regime are unfair and that the government’s ability to assert control over the country is questionable at best.[13] This situation would appear to show that the “defense” would support a finding of admissibility, a situation not contemplated by Article 19. The motivation or desires of an accused do not modify the legal regime. The Statute does not create a legally protected interest in having an international trial. Nowhere in the Statute is there a provision allowing an accused to request transfer of his case to the ICC from national authorities. The Statute provides ways for the ICC to discontinue or adjourn proceedings in order to allow States to proceed. It does not provide a way for the ICC to assert a form of judicial supremacy and take cases away from States, with one exception to which we will now turn.

Article 17(2) provides that where national proceedings are not designed to “bring the person concerned to justice” or are “designed to shield[] the person concerned from criminal responsibility” the Court can declare that a case is admissible notwithstanding the existence of national proceedings. The Court could interpret these passages to mean that a trial designed to convict an accused, and not one designed to provide a fair trial, is invalid for the purposes of an admissibility challenge and therefore declare a case admissible. However, even in this case, this is no right of the accused to choose international proceedings. It would just be an option for the ICC to take over a prosecution in the interests of justice. Even assuming this to be a valid interpretation of the Statute, allowing Ms. Hosseinioun to raise this argument on the Accused’s behalf would present a serious problem.

Ms. Hosseinioun does not represent the Accused. Therefore any argument she makes will not be attributable to him during future proceedings. In this way, assuming she is in close contact with Mr. Gaddafi, she can argue that the case is admissible at this juncture and then Mr. Gaddafi will be able to argue later on that the case is not admissible or that the ICC lacks jurisdiction. Such a procedure would allow the defense to have its cake and eat it too by providing supplemental representation through amicus. These considerations are however far afield from the original issue to be decided by the Appeals Chamber.

The last factor that needs to be considered in interpreting the Statute is that amicus are not granted procedural rights, as are the defense, the prosecution and participating victims. There are various provisions of Statute and Rules that provide the defense with the rights and obligations before the Court.[14] The Prosecution is subject to similar provisions.[15] Victims also benefit from the grant of rights and obligations in the proceedings.[16] Amicus are the subject of only one Rule and are absent from the text of the Rome Statute.[17] The logical conclusion is that amicus are not “parties” to the proceedings in any sense and so fall outside the grant of direct appeals governed by Article 82(1)(a). Even if the denial of Ms. Hosseinioun’s application were a decision on admissibility, the appeal would lack a legal basis as she is not a party to the proceedings.

The appeal therefore falls outside the scope of Article 82(1)(a) allowing an appeal without leave of the Pre-Trial Chamber. The Appeals Chamber should consequently summarily dismiss the appeal without reaching the merits.


[1] Prosecutor v. Gaddafi & Al-Senussi, ICC-01/11-01/11, Decision on the Applications of Mishana Hosseinioun and Aisha Gaddafi to submit Amicus Curiae observations to the Chamber, 2 February 2012.

[2] Prosecutor v. Gaddafi & Al-Senussi, ICC-01/11-01/11, Appeal Against Decision on Application Under Rule 103, 7 February 2012. (hereinafter Appeal)

[3] Prosecutor v. Gaddafi & Al-Senussi, ICC-01/11-01/11, Application For Leave to Appeal Against Decision on Application Under Rule 103, 7 February 2012.

[4] Appeal at ¶¶ 2-4.

[5] Ibid. at ¶ 5.

[6] Ibid. at ¶ 9.

[7] Ibid.

[8] Ibid. at ¶¶ 14-22.

[9] Article 82(1)(a).

[10] Articles 12-13.

[11] Article 17.

[12] The appeal does not go to jurisdiction therefore there is no need to discuss that branch of Article 82 here.

[13] Appeal at ¶ 12.

[14] See i.e., Article 19(2) of the Statute; Rule 121.

[15] See i.e., Article 19(10) of the Statute; Rule 62

[16] See i.e., Article 68 of the Statute; Rules 89-93.

[17] Rule 103.

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Review of International Tribunal Decisions for the week of February 6, 2012

This is the first weekly review of international tribunal decisions here on the {New} International Law. Each week, we will summarize decisions from the various international tribunals. Most of the decisions will come from the international criminal tribunals, primarily the International Criminal Tribunal for the ex-Yugoslavia (ICTY), Special Tribunal for Lebanon (STL), the International Criminal Court (ICC) and the Extraordinary Chambers in the Courts of Cambodia (ECCC). We will also have decisions from the International Human Rights courts such as the European Court of Human Rights (ECtHR), the Inter-American Court of Human Rights (ICtHR) and African Court of Human and Peoples’ Rights (ACtHR). This week we have cases from the ICTY on State participation in appellate proceedings, the ICC on amicus curiae and victim participation and from the ECtHR on the freedom of expression.

International Criminal Law

ICTY

Prosecutor v. Gotovina & Markač[1]

Decision on Motion to Intervene and Statement of Interest by the Republic of Croatia

Background

Croatia applied to make amicus submissions in this case before the start of trial and was denied by the Trial Chamber.[2] The Accused were eventually convicted because of their participation in a joint criminal enterprise that included the former president of Croatia and other former government officials.[3] The Accused have appealed their convictions and Croatia again seeks permission to make amicus submissions.[4] Croatia essentially argues that the conviction of the Accused on a joint criminal enterprise theory essentially found Croatia responsible for international crimes.[5] The Chamber denied Croatia-s motion.

Reasoning

The Appeals Chamber started by emphasizing that the “findings of criminal responsibility made in a case before the Tribunal are binding only for the individual accused in that specific case.”[6] The conviction was not a finding of responsibility on the part of Croatia.[7] Furthermore, the Chamber noted that Croatia’s request was not based on any “relevant provision of the Statute or judicial precedent of the Tribunal”.[8] In this regard, the Chamber considered that Croatia’s assertion that the trials before the Tribunal are a “forum for exposition and consideration of state interests” would result in an impermissible expansion of the Tribunal’s jurisdiction and competence.[9] Because there was no legal basis, the request to intervene was denied.[10] Croatia’s request in the alternative to file an amicus brief was denied for the same substantive reason, national interests are beyond the scope of the criminal trial.[11]

Prosecutor v. Orić[12]

Order Lifting Confidentiality of the “Decision on Prosectuion’s Motion to Seal Defence Appeal Brief” Issued on 10 May 2007

&

Prosecutor v. Milošević[13]

Order Lifting Confidentiality of the “Decision on Urgent Prosecution Motion Concerning Public Filings of Dragomir Milošević” Issued on 22 April 2009

Background

In both the above named cases the Accused filed documents with the Tribunal that contained information that should have been kept confidential.[14] In both cases the Accused were ordered to redact their filings.[15] On 27 September 2011, the Prosecution filed both motions with the Chamber to have the decisions ordering redaction made public because, inter alia, they “provided general guidance as to the redactions that should be made to documents discussing confidential material and that as this issue arises in virtually every case, the Decision should be made public” (internal citations omitted)[16] The Chamber granted the motions.

Reasoning

The Chamber considered only two factors in order the publication of the decisions in question. (1) The fact that the information that was ordered to be redacted from the Accused’s filings are no longer publically available and (2) “that all decisions filed before the Tribunal shall be public unless there are exceptional reasons for keeping them confidential.”[17] The Chamber found no such reasons to exist and so granted the motion.[18]

ICC

Prosecutor v. Gaddafi & Al-Senussi[19]

Decision on the Applications of Mishana Hosseinioun and Aisha Gaddafi to submit Amicus Curiae observations to the Chamber

Background

Mishana Hosseinioun and Aisha Gaddafi separately filed leave for permission to submit amicus curiae observations to the chamber. Ms. Hosseinioun requested permission to contact the accused Saif Al-Islam Gaddafi to assist him in the appointment of legal counsel while his sister requested permission to make “specific” observations to assist the Chamber in “determining whether the Libyan authorities truly desire to provide” the accused with “effective legal representation or to afford him a fair trial.” The Chamber denied both motions.

Reasoning

The Chamber started by considering that Rule 103 allows amicus curiae observations that are “both desirable and appropriate for the proper determination of the case.” The Chamber then considered that the requests effectively sought “the Chamber’s permission to contact Saif Gaddafi and give him access to what they deem to be appropriate legal advice” and so their requests fell outside the scope of the rule. As the requests did not comply with the reasoning of the rule, they were denied.

Prosecutor v. Katanga & Chui[20]

Déclaration de la clôture de la présentation des moyens de preuve

With the successful completion of the judicial trip to the Democratic Republic of the Congo and the rejection of the motions by the parties and participants to admit additional evidence the Chamber decided to declare the evidentiary phase of the trial over pursuant to Rule 141 of the Regulations.[21]

Prosecutor v. Gbagbo[22]

Decision on issues related to the victims’ application process

Background

The Single Judge convened a meeting with the Victims Participation and Reparations Section and other involved Registry personnel to discuss the manner of victim participation in the pre-Trial phase of the proceedings.[23] The Single Judge then ordered the beginnings of a “collective” system of victim representation.

Reasoning

The Single Judge considered that “the recent experience of the Chamber in the situation at hand, as well as the existing backlog” in dealing with victims’ applications makes it “imperative to put in place a system that is adequate to deal with numerous applicants.”[24] The Single Judge wanted the system put in place for this case to “encourage a collective approach to victims’ applications […] without prejudice to continuing long-term consideration of a collective system that could eventually be applied by the Court as a whole.”[25] The Single Judge therefore embraced the Registry suggestion to create “an initial mapping report, which would identify the main communities of victims affected by the crimes likely to be the subject of the Court proceedings” and to communicate with civil society in those locations.[26] The exercise will identify groups of victims, identify individuals who can act as representatives for the victims and encourage individual victims to make joint applications pursuant to Rule 89(3).[27]

Human Rights Law

ECtHR

Cara-Damiani v. Italy[28]

Chamber Judgment

Background

Applicant, who suffers from mild paralysis of the lower body, has been in prison since 1992. In 2003, he was transferred to a different facility where he was supposed to be put in a ward that could cope with his condition, but he was put in an “ordinary” unit. His transfer into the new unit meant that he could not access the toilets or use any physiotherapy facilities. His request for a sentence deferral was rejected in 2005. While the prison opened a new ward that could have addressed his condition, due to overcrowding he was not moved there. After this point he was in and out of detention in a hospital facility due to the conditions in the prison. Based on these facts the Court found a violation of Article 3 prohibiting inhuman or degrading treatment.

Reasoning

The Court reasoned that Article 3 requires States to provide persons deprived of liberty with appropriate medical treatment. The Chamber noted that the applicant’s condition required medical treatment and that the prison could not provide the needed assistance. The Court then held that the long term detention of a prisoner in a condition where they cannot move about independently. The national court overseeing the movement of the applicant from the prison to the hospital even noted that moving the applicant back to the prison opened Italy up to a finding of a violation of Article 3.

Vejdeland & Others v. Sweden[29]

Chamber Judgment

Background

The Applicants distributed leaflets at an upper secondary school by leaving them inside student lockers. These leaflets described homosexuality as a “deviant sexual proclivity” that had “a morally destructive effect on the substance of society” and was the cause of HIV/AIDS. They were later convicted of “agitation against a national or ethnic group” and sentenced to a variety of penalties ranging from suspended sentences and fines to probation. The Applicants claimed that their conviction was a violation of their rights to freedom and expression as their goal was only to start a debate. The European Court disagreed.

Reasoning

The Court noted that restrictions on the freedom of expression are permissible under certain circumstances such as, inter alia, “the protection of the reputation and rights of others.” The Court held that while the Applicants’ goal was permissible, the language that they chose was unnecessarily offensive. Furthermore, the leaflets were imposed on the students against their will, as they were not given a choice as to whether or not to accept them. Given the light nature of the sentences (which carried much higher maximum sentences), the Court ruled that there was no violation of the Applicants’ freedom of expression.


[1] IT-06-90-A, 8 February 2012.

[2] Ibid. at ¶ 1.

[3] Ibid.

[4] Ibid.

[5] Ibid. at ¶ 9.

[6] Ibid. at ¶ 12.

[7] Ibid.

[8] Ibid. at ¶ 14.

[9] Ibid. at ¶ 15.

[10] Ibid. at ¶¶ 16-17.

[11] Ibid. at ¶¶ 18-21.

[12] IT-03-68-A, 10 February 2012. (hereinafter Orić)

[13] IT-98-29/I-A, 10 February 2012. (hereinafter Dragomir)

[14] Orić at p. 2; Dragomir at p. 2.

[15] Ibid.

[16] Ibid.

[17] Ibid. at pp. 2-3,

[18] Ibid. at p. 3.

[19] ICC-01/11-01/11, 2 February 2012.

[20] ICC-01/04-01/07, 7 February 2012.

[21] Ibid. at ¶¶ 1-3.

[22] ICC-02/11-01/11, 6 February 2012.

[23] Ibid. at ¶ 1.

[24] Ibid. at ¶ 6.

[25] Ibid. at ¶ 7.

[26] Ibid. at ¶ 9.

[27] Ibid. at ¶ 10.

[28] Application no. 2447/05. This summary is taken from the press release.

[29] Application n. 1813/07. This summary is taken from the press release.

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