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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One response to “Review of International Tribunal Decisions for the week of February 6, 2012

  1. Pingback: Review of International Tribunal Decisions for the week of March 5, 2012 | The {New} International Law

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