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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