Review of International Tribunal Decisions for the week of March 19, 2012

This week has decision from the International Criminal Tribunal for the Ex-Yugoslavia (ICTY), the Special Tribunal for Lebanon (STL) and the Extraordinary Chambers in the Courts of Cambodia (ECCC). The ICTY deal with the issues of attorney/client privilege, subpoenas for sitting heads of State and expert testimony and reports. The STL stayed the proceedings in order to define the crime of criminal association and the ECCC issued several documents dealing with the right to appeal, judicial recusal and interference with investigations.

International Criminal Law

ICTY

Prosecutor v. Karadžić[1]

Decision on Motion for Subpoena to Interview President Karolos Papoulias

Background

The Accused filed a motion for a subpoena to compel the sitting president of Greece to give an interview to the defence about meeting with the Accused in the mid-nineteen-nineties when the president was foreign minister of Greece.[2] The motion and the responses from Greece raised issues of head of state immunity from subpoenas from the Tribunal and the ability of a State to decline co-operation on the basis of national law.[3] The Accused supplied a detailed account of the evidence that he expected the president of Greece to supply.[4] The Chamber denied the motion.

Reasoning

The Chamber did not consider it appropriate to order a defence interview when the Accused is already “aware” of the evidence the witness is going to give, as the purpose of the interview is to allow the defence to prepare for trial.[5]

Prosecutor v. Šešelj[6]

Decision on Further Notifications to the President Submitted by the Legal Advisor to Vojislav Šešelj

Background

The Legal Advisor to the Accused wrote a letter to the President complaining that he and the case manager have not been compensated for their travel expenses by the Registry and were prevented from having a privileged meeting with the Accused.[7] The Registry responded that the Legal Advisor does not have standing to raise these issues.[8] The President denied relief.

Reasoning

The President noted that the Accused had not participated in this motion practice and that the Legal Advisor was not a party to the case.[9] A prior exception was made to give the Legal Advisor standing to file motions, but only because that issue regarded the Accused’s communication with the advisor, whereas this issue relates to the Legal Advisor.[10] Therefore the President found that there was no standing to bring the issue before him on administrative review.[11]

Prosecutor v. Tolimir[12]

Decision on Admission of Expert Report of Ratko Škrbić with Separate Opinion of Judge Mindua and Dissenting Opinion of Judge Nyambe

Background

The Accused called an “expert” witness to testify about, inter alia, population movements after the fall of Srebrenica in 1995 and moved to have his “expert” report claiming that the deaths in Srebrenica could be counted in the hundreds, not that thousands, admitted into evidence.[13] The Prosecution argued that the report should not be admitted, inter alia, because its suggestion that genocide did not take place was “an affront to the victims of these crimes [and] to the integrity of these proceedings.”[14] The Chamber denied the admission of the report by a majority and issued a concurring and dissenting opinion.

Reasoning

To start, the Chamber found, by majority, that the witness was not qualified to be an “expert” on population movements because, while he was qualified as a military expert, he had no relevant experience in the area.[15] The Majority then went on to analyze the “expert” report and conclude that it is biased, unprofessional and that it used a “methodology […] clearly in conflict with the expected standard of work required for an expert witness.”[16] The Chamber therefore, by majority, held that the report failed to satisfy the minimum standards for admissibility required by Rule 89(C).[17] The Chamber also found that the prejudice of admitting the report would significantly outweigh its probative value because “the witness challenged the evidence not only in the current proceedings but in all other trials on the number of victims in relation to the fall of Srebrenica. The First Report’s probative value is, in the Majority’s opinion, Judge Nyambe dissenting, manifestly unreasonable and outweighed by its prejudicial effect to the case.”[18]

Prosecutor v. Karadžić[19]

Decision on Request for Review of Decision on Privileged Telephone Calls

Background

The Accused submitted a request to the Registry of the Court to allow him to have privileged telephone calls with this legal advisor over the advisor’s cell phone.[20] The Registry rejected the request citing longstanding policy and security risks related to cell phones.[21] The President of the Tribunal overruled the Registry decision

Reasoning

The President fount that the Accused by not being able to have privileged conversations with this legal advisor over the latter’s cell phone meant that he was no able to fully enjoy his right to have privileged conversations.[22] The President considered that the security concerns advanced by the Registry failed to take into account similar risks related to landline telephones, the advance of mobile phone technology and it ubiquitousness in modern culture.[23] On this basis the President found the policy to be “unreasonable” and ordered that the Accused be able to have privileged mobile phone communications with his legal advisor.[24]

STL

Prosecutor v. Ayyash et. al.[25]

Order for Stay of the Scheduling Order of 7 March 2012 and Giving Further Directions

On 2 March 2012, the Pre-Trial Judge filed a request with the Appeals Chamber to define “criminal association” under Lebanese law because of a motion from the Prosecution to amend the indictment.[26] The Pre-Trial Judge subsequently denied the motion in its entirety on procedural grounds.[27] The President of the STL issued this decision staying the scheduling order of the Pre-Trial Judge on the grounds that even though the motion giving rise to the request for interpretation has been denied, the Appeal Chamber may still have jurisdiction to decide the issue referred to it by the Pre-Trial Judge.[28] The decision on whether to decide the issue is with the Appeals Chamber and so the President ordered a stay.[29]

ECCC

Case 002[30]

Decision on Ieng Sary’s Appeal Against Trial Chamber’s Decision on Ieng Sary’s Rule 89 Preliminary Objections (Ne bis in idem and Amnesty and Pardon)

The Accused filed a motion to appeal the Trial Chamber’s decision not to dismiss the case arguing that she had a right of appeal because had the Trial Chamber granted the request, the Prosecution would have had a right to appeal. The Supreme Court Chamber dismissed the motion as there is not right to an interlocutory appeal and the right to appeal only lies for a decision that terminates the proceedings.

Cases 003/004[31]

Note of the International Reserve Co-Investigating Judge to the Parties on the Egregious Dysfunctions Within the ECCC Impeding the Proper Conduct of Investigations in Cases 003 and 004

This note is too long to summarize here. It is a blistering denunciation of the workings of the ECCC that calls into question its very reason for existing. For everyone interested in how not to create an internationalized criminal court, this is the blueprint. The International Reserve Co-Investigating Judge lists numerous occasions of national staff preventing him from carrying out his mission and his inability to effectively circumvent these obstacles.

Interoffice Memorandum

Decision of the JAC regarding the request to appoint two international judges to hear the application for disqualification of the President of the Pre-Trial Chamber.

On 2 March 2012 the international judges of the Pre-Trial Chamber notified the Judicial Administration Committee of the ECCC that they were recusing themselves from the decision on the defence request for the disqualification of the President of the Pre-Trial Chamber filed by the International Reserve Co-Investigating Judge. In that notification, the Judges asked the JAC to appoint replacement judges to deliberate on the motion. The JAC declined to do so stating that the proper course of action was for the International Judges to request permission to recuse themselves from the Pre-Trial Chamber, and then the JAC could be seized of such a request issued by the President of the Pre-Trial Chamber. The decision was taken by a “super majority” with one international member dissenting on the grounds that the JAC as an administrative and not judicial body had no basis to review the validity of the recusals.


[1] IT-95-5/18-T, 20 March 2012.

[2] Ibid. at ¶¶ 1, 6.

[3] Ibid. at ¶ 4.

[4] Ibid. at ¶ 6.

[5] Ibid. at ¶¶ 11-12.

[6] IT-03-67-T, 21 March 2012.

[7] Ibid. at ¶¶ 6-7.

[8] Ibid. at ¶ 8.

[9] Ibid. at ¶ 11.

[10] Ibid.

[11] Ibid.

[12] IT-05-88/2-T, 22 March 2012.

[13] Ibid. ¶¶ 1, 18.

[14] Ibid. at ¶ 7.

[15] Ibid. at ¶ 22.

[16] Ibid. at ¶¶ 25-36

[17] Ibid. at ¶ 38.

[18] Ibid. at ¶ 39.

[19] IT-95-5/18-T, 23 March 2012.

[20] Ibid. at ¶¶ 2, 8.

[21] Ibid. at ¶¶ 3, 9.

[22] Ibid at ¶ 11.

[23] Ibid. at ¶ 12.

[24] Ibid. at ¶ 16.

[25] STL-11-01/PT/AC, 16 March 2012.

[26] Ibid. at ¶¶ 1-2.

[27] Ibid. at ¶ 6.

[28] Ibid. at ¶¶ 8-10.

[29] Ibid. at ¶ 11.

[30] Case File No. 002/19-09-2007-ECCC-TC/SC(11), 20 March 2012.

[31] Case File Nos. 003/07-09-2009-ECCC-OCIJ, 004/07-09-2009-ECCC-OCIJ, 21 March 2012.

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