Review of International Tribunal Decisions for the week of February 27, 2012

The week the International Criminal Tribunal for the Ex-Yugoslavia (ICTY) issued a decision on the reconsideration of prior decisions and the standard for granting certification for appeal. The International Criminal Tribunal for Rwanda (ICTR) issued a decision on orders for cooperation. The International Criminal Court (ICC) issued important decisions on suspensive effect of decisions on appeal and issued another arrest warrant in connection with the situation in Darfur. The Extraordinary Chambers in the Courts of Cambodia (ECCC) issued decisions on civil party status and the Special Tribunal for Lebanon (STL) issued a request for clarification on the applicable law.

International Criminal Law

ICTY

Prosecutor v. Haradinaj, Balaj & Brahimaj[1]

Decision on Prosecution Motion for Reconsideration of Majority Decision Denying Admission of Document Rule 65 ter Number 3003 or in the Alternative Certification of the Majority Decision with Partly Dissenting Opinion of Judge Delvoie

Background

On 28 September 2011, the Chamber, by majority, denied a Prosecution motion to admit a diary alleged belonging to one of the accused finding, inter alia, that it was not satisfied as to the authenticity of the document or the source of the information contained therein.[2] The Prosecution the filed a combined motion to reconsider and certification for appeal.[3] The Chamber denied the motion.

Reasoning

The Chamber, by majority, held that the Prosecution had failed to raise any new issues indicating a clear flaw in the reasoning of the impugned decision and that the arguments raised by the Prosecution were directed addressed in the impugned decision.[4] The Chamber therefore denied any reconsideration. The Prosecution asked for certification to ensure that the standard for the admissibility of evidence remains consistent throughout the retrial.[5] The Chamber however disagreed finding that the impugned decision did not raise an issue of consistency.[6] The Chamber noted that the standard for granting certification is not whether a party disagrees with the reasoning of a decision, nor even if a particular decision is correctly reasoned.[7]

ICTR

Prosecutor v. Ngirabatware[8]

Decision on Defence Motion Requesting a Cooperation Order Directed at the Federal Republic of Nigeria

Background

The Accused filed a motion to compel cooperation from Nigeria in order to explore the possibility of calling a Nigerian national as a witness in the place of witness DWAN-112.[9] On 26 January, the Trial Chamber issued an order requesting the Togolese Republic to authorize the travel of witness DWAN-112 to Arusha to testify and that witness’ testimony is expected during the current trial session.[10] The Chamber therefore denied the motion.

Reasoning

The purpose of the request for a cooperation order to Nigeria was to explore possible replacements in the case that witness DWAN-112 would not testify.[11] Seeing as though the witness will testify, the Chamber found there is no need for a cooperation order in this instance.[12]

ICC

Prosecutor v. Ruto, Kosgey & Sang[13]

Decision on the Requests of Mr Ruto and Mr Sang for Suspensive Effect

&

Prosecutor v. Muthaura, Kenyatta & Ali[14]

Decision on the Requests of Mr Kenyatta and Mr Muthaura for Suspensive Effect

Background

On 23 January 2012 Pre-Trial Chamber II issued decisions confirming the charges in both the above-mentioned cases finding that the cases were admissible and that the Court had jurisdiction.[15] The Accused appealed the confirmation decision and requested that the proceedings be suspended until the Appeals Chamber has decided on the jurisdictional and admissibility issues.[16] The Appeals Chamber rejected the requests.[17]

Reasoning

The Appeals Chamber recalled that in the past the conditions for granting suspensive effect are “(i) would create an irreversible situation that could not be corrected, even if the Appeals Chamber eventually were to find in favour of the appellant (ii) would lead to consequences that would be very difficult to correct and may be irreversible or (iii) “could potentially defeat the purpose of the appeal.”[18] (internal quotations and ellipses omitted) The Chamber then found that there would be no “irreversible situation” if suspensive effect were not granted.[19]

Prosecutor v. Abdel Raheem Muhammad Hussein[20]

Public Redacted version of “Decision on the Prosecutor’s Application Under Article 58 Relating to Abddel Raheem Muhammad Hussein”

Pre-Trial Chamber II issued an arrest warrant for Abdel Raheem Muhammad Hussein in connection to events for which the Chamber had already issued arrest warrants against Omar Hassan Ahmad Al Bashir, Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman.[21]

ECCC

Case 003[22]

Order on the Reconsideration of the Admissibility of the Civil Party Application of Robert Hamill

Background

The International Reserve Co-Investigating Judge entertained a motion (apparently without engaging the National Co-Investigating Judge) to reconsider the civil party application of Robert Hamill whose brother was killed by the Khmer Rouge. He granted the motion and ordered that Mr. Hamill be given access to the case file.

Reasoning

The interesting part of this decision is not that reasoning for granting the motion, but the Judge’s reasoning for assuming the authority to do so. He cites an “opinion” of two judges of the Pre-Trial Chamber, which has a membership of five, as the legal basis for issuing an “order whose admissibility cannot be called into question”.[23] He also claims that he has the full legal power to conduct investigations, something that is doubted by the national component of the Court. The other interesting aspect of this decision will be whether or not Mr. Hamill is actually able to access the case file. Unfortunately, as of this writing, the answer is unclear.

Case 003[24]

Considerations of the Pre-Trial Chamber Regarding the Appeal Against Order on the Admissibility of Civil Party Applicant [Redacted]

&

Case 004[25]

Considerations of the Pre-Trial Chamber Regarding the Appeal Against Order on the Admissibility of Civil Party Applicant [Redacted]

In both of these cases the Pre-Trial Chamber failed to come to the required majority regarding the appeal of the civil party applications in the above-mentioned cases. In both cases, the national judges set forth that they agreed with the denial of civil party status on because there were not yet any accused in either case. The international judges disagreed, and would have held that appeals be granted. The internal rules set out that in such circumstances (failure to achieve the required majority) the impugned decision stands.

STL

Prosecutor v. Ayyash et. al.[26]

Order on Preliminary Questions Concerning the Crime of Criminal Association Addressed to the Appeals Chamber Pursuant to Rule 68(G) and 71(A)(ii) of the Rules of Procedure and Evidence

On 8 February 2012 the Prosecution filed a request to amend the indictment that raises issues of applicable law that have not already been addressed by the Appeals Chamber.[27] The Pre-Trial Judge felt it was necessary to forward certain legal questions to the Appeals Chamber “in order to ensure compliance of the proceedings with the interests of justice.”[28] The Pre-Trial Judge sought the Appeals Chamber’s view on the elements of the crime of criminal association under the Lebanese criminal code in light of the duty to apply the law in a manner consonant with international principles and rules binding on Lebanon.[29] The Pre-Trial Judge was particularly interested in the difference between the crimes of conspiracy and criminal association and whether they can be cumulatively charged.[30]


[1] IT-04-84bis-T, 27 February 2012.

[2] Ibid. at ¶¶1, 14-15.

[3] Ibid. at ¶ 2.

[4] Ibid. at ¶¶ 14-15.

[5] Ibid. at ¶ 19.

[6] Ibid.

[7] Ibid.

[8] ICTR-99-54-T, 13 February 2012. This decision was publically available until recently (issues with the website).

[9] Ibid. at ¶¶ 1, 7, 11.

[10] Ibid. at ¶¶ 3-5.

[11] Ibid. at ¶ 12.

[12] Ibid.

[13] ICC-01/09-01/11 OA 3 OA 4, 29 February 2012.

[14] ICC-01/09-02/11 OA 4, 29 February 2012.

[15] Ruto, Kosgey & Sang at ¶ 2. All citations will be to the Ruto case as the two decisions are substantively identical.

[16] Ibid. at ¶¶ 3-4.

[17] Ibid. at ¶ 13.

[18] Ibid. at ¶ 9.

[19] Ibid at ¶ 10.

[20] ICC-02/05-01/12, 1 March 2012.

[21] Ibid. at ¶¶ 2-3, 52.

[22] Case File No. 003/07-09-2009-ECCC-OCIJ, 24 February 2012.

[23] Ibid. at ¶ 2.

[24] Case File No. 003/07-09-2009-ECCC/OCIJ (PTC 01), 28 February 2012.

[25] Case File No. 004/07-09-2009-ECCC/OCIJ (PTC 01), 28 February 2012.

[26] STL-11-01/PT, 2 March 2012.

[27] Ibid. at ¶ 6.

[28] Ibid. at ¶ 9.

[29] Ibid. at ¶¶ 13- 14.

[30] Ibid. at ¶¶ 15-16.

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