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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