Monthly Archives: April 2012

Review of International Tribunal Decisions for the week of April 23, 2012

This week has decisions from the International Criminal Tribunal for the Former Yugoslavia (ICTY) on appellate practice and the confidentiality of documents. The Extraordinary Chambers in the Courts of Cambodia (ECCC) issued a decision on the propriety of ex parte communications between the Court and the Prosecution. The International Criminal Court (ICC) issued several decisions dealing with issues ranging from legal aid to amicus curiae.  The Special Tribunal for Lebanon (STL) issued a decision on participation in a judicial conference and the European Court of Human Rights (ECtHR) issued several chamber judgments. Most importantly, the Special Court for Sierra Leone (SCSL) issued a partial version of the judgment in the case against Charles Taylor, the former president of Liberia.

International Criminal Law


Prosecutor v. Šešelj[1]

Decision on Amicus Curiae Prosecutor’s Motion to Strike the Appellant’s Brief and Urgent Motion for Stay of Deadline


The Accused was convicted of contempt of the tribunal and filed an appeal brief of 33, 606 words, or 24,606 words over the word limit.[2] The Amicus Prosecutor filed a motion to strike the brief in its entirety.[3] The Chamber granted the motion.


The Chamber noted that the Accused should have filed a request to submit an oversized appeal brief before filing the brief instead of as part of the brief.[4] In any case, the motives given for the accused did not explain why he need additional space or were irrelevant to the appeal.[5] The Chamber accordingly granted the Amicus Prosecutor’s request and granted the Accused the opportunity to file an appeal brief within the assigned word limit.[6]

Prosecutor v. Karadžić[7]

Decision on the Accused’s Motion to Unseal ICMP Exhibits


The Trial Chamber previously heard testimony from the director of the International Commission on Missing Persons (ICMP) about matching the genetic material of those killed in Bosnia during the war with survivors and received numerous documents relating the DNA matching under seal.[8] The Accused filed a motion asking that the Chamber unseal the documents.[9] The Prosecution responded, inter alia, that the information should be kept confidential under Rule 75 allowing protective measures for victims and witnesses.[10] The Chamber granted the motion in part.


The Chamber rejected the submission that the exhibits could be kept confidential under Rule 75 as the individuals who donated their genetic material to the ICMP are not witnesses before the tribunal simply because information they provided made its way into the evidence of the Tribunal.[11] The Chamber, however, recognized the inherently private nature of DNA information and ordered that any such information be redacted under Rule 54.[12]


Prosecutor v. Taylor[13]


Charles Ghankay Taylor, the former President of Liberia, was convicted today on all counts of an 11-count indictment which alleged that he was responsible for crimes committed by rebel forces during Sierra Leone’s decade-long civil war. The Special Court’s Trial Chamber II found unanimously that Mr. Taylor aided and abetted RUF and AFRC rebels in the commission of war crimes and crimes against humanity in Sierra Leone.

Mr. Taylor was convicted on Count 1 for acts of terrorism (a war crime), on Count 2 for murder (a crime against humanity), on Count 3 for murder (a war crime), on Count 4 for rape (a crime against humanity), on Count 5 for sexual slavery (a crime against humanity), on Count 6 for outrages upon personal dignity (a war crime), on Count 7 for cruel treatment (a war crime), on Count 8 for inhumane acts, including mutilations and amputations, (a crime against humanity), on Count 9 for the recruitment, enlistment and use of child soldiers, on Count 10 for enslavement (a crime against humanity), and on Count 11 for pillage (a war crime).

The Prosecution had not alleged that Mr. Taylor had committed these crimes in person, but that he participated from Liberia in the commission of crimes by AFRC and RUF rebels and, under Articles 6.1 and 6.3 of the Special Court Statute, was individually responsible for them. The Chamber found that he had aided and abetted the rebels by providing them with arms and ammunition, military personnel, operational support and moral support, making him individually responsible for their crimes.


Case 002[14]

Decision on IENG Sary’s Appeal Against the Trial Chamber’s Decision on its Senior Legal Officer’s Ex Parte Communications


The Trial Chamber filed a memorandum denying the Accused’s request that the Trial Chamber Senior Legal Officer copy all the parties on communications related to trial management issues and the Accused appealed.[15] The Supreme Court Chamber ruled the appeal was inadmissible.


An immediate appeal to the Supreme Court Chamber under these circumstances must allege an act that would be a violation of Internal Rule 35, an act interfering with the administration of justice, something that the defence did not do in this case.[16] The Chamber reiterated that there is no general right to an interlocutory appeal.[17] Therefore, the Chamber held that the request failed to satisfy the requirements for admissibility.[18]


Prosecutor v. Katanga & Chui[19]

Decision on the Urgent Requests by the Legal Representatives of Victims for Review of Registrar’s Decision of 3 April 2012 regarding Legal Aid


The Legal Representative for the principal group of victims wanted funding for a trip to the Democratic Republic of the Congo (DRC) for himself and his legal assistant so that they could update their clients and get more detailed information from some of their clients.[20] The Registrar rejected the request for funds as the legal assistant based in the DRC could carry out those functions.[21] The Legal Representative asked the Chamber to find that the planned trip falls within the legal aid that the Registrar is to cover, that the Registrar should cover the expenses of his legal assistant to travel with him to the DRC and, in the alternative, if the Legal representative were to pay his own way to have the Registry pay for logistical support and security.[22] The Chamber rejected the Legal Representative’s requests.


The Chamber started by setting out that review of requests for legal aid is not the same as an administrative decision such as reviewed by the President and so a more flexible standard is appropriate.[23] The Chamber set out that it,

must assess (a) whether the Registrar has abused her discretion; (b) whether the Registrar’s decision is affected by a material error of law or fact; and (c) whether the Registrar’s decision is manifestly unreasonable. The Chamber will only intervene if counsel can show that the Registrar’s decision falls foul of one or more of these criteria.[24]

No one suggested that the Registrar abused her discretion and so that issue was not addressed by the Chamber.[25] The Chamber likewise found that there was no error of law or of fact.[26] The last issue was based entirely on whether it was unreasonable of the Registry to have the view that the legal assistant in the DRC could adequately carry out the necessary functions without a trip from counsel in The Hague.[27] The Chamber felt that this was not unreasonable and therefore upheld the Registry’s decision.[28] As to the request for aid for the legal assistant from The Hague because the Registry had yet to rule on such a request.[29]

Prosecutor v. Ruto, Kosgey & Sang[30]

Decision on the “Application of the Victims’ Representative pursuant to Article 83 of the Regulations”


The Legal Representative for the victims was informed that her mandate would end with the confirmation of the charges and that any victim participation after that point would be up to the Trial Chamber.[31] The Victims filed a request with the Appeals Chamber to order that the mandate of the Legal Representative be extended until the representation scheme for the trial is put in place.[32] The Appeals Chamber rejected the request.


The Chamber set out that before reaching the merits of the request, that it first had to be determined if the Legal Representative still represented the victims because of the termination of the Pre-Trial proceedings and the end of the mandate.[33] The Chamber held that because counsel as a general matter under the code of conduct represents his or her client until he withdraws or the case ends, the Legal Representative still represents the victims in the current proceedings and so the end of the mandate does not equate to a termination of representation.[34] The consequence of the mandate ending was that the Registry would only pay for pre-approved acts in connection with the case, something the Chamber found to be reasonable considering the stage and posture of the case.[35]

Prosecutor v. Gaddafi & Al-Senussi[36]

Decision on the “Application on behalf of Mishana Hosseinioun for Leave to Submit Observations to the Pre-Trial Chamber”


Ms. Hosseinioun filed a motion requesting permission to file observations pursuant to Rule 103 asking the Chamber to order that she be allowed to visit Mr. Gaddafi in custody in Libya so that she might help him obtain counsel.[37] The chamber denied the motion.


“The Chamber observes that Ms Hosseinioun effectively requests that the Chamber authorise and facilitate contact between her and Mr Gaddafi, in order to give him access to what she deems to be appropriate legal advice. She does not seek to provide the Chamber with observations which may be “desirable for the proper determination of the case”, as required by Rule 103 of the Rules. The reasoning advanced by Ms Hosseinioun to justify her request is thus misplaced and contrary to the intended purpose of the amicus curiae role in the proceedings before this Court. Accordingly, the Application must be rejected.”[38]

Prosecutor v. Katanga & Chui[39]

Décision relative à la requête de la Défense de Germain Katanga tendant à l’admission d’extraits du jugement prononcé dans l’affaire Lubanga


The Accused filed a motion for the Chamber to admit certain paragraphs from the recent judgment in Lubanga regarding intermediaries P-143 and P-316 and the Prosecutor and Victims opposed the motion.[40] The Chamber rejected the motion.


The Chamber noted that there is no explicit legal basis for the request.[41] The issue is not one of the principle that evidence be oral and be able to be cross examined, but if it is appropriate to admit new evidence at this stage of the proceedings after the close of the parties’ cases.[42] The Chamber decided that the conclusions of the Trial Chamber in Lubanga are not of such value as to justify re-opening the case to admit new evidence at this juncture.[43]

Prosecutor v. Gaddafi & Al-Senussi[44]

Decision on “Government of Libya’s Appeal Against the ‘Decision Regarding the Second Request by the Government of Libya for Postponement of the Surrender of Saif Al-Islam Gaddafi’” of 10 April 2012


On 22 March 2012, the government of Libya filed a “notification” that it intends to challenge the admissibility of the case against Saif Al-Islam and requesting for the second time that the Pre-Trial Chamber postpone the request for the surrender of the accused to the ICC.[45] The Pre-Trial Chamber rejected this second postponement request and Libya filed this appeal.[46] The Appeals Chamber rejected the appeal.


The appeal was filed pursuant to article 82(1)(a) of the Rome Statute which provides that either party may appeal, inter alia, a decision on jurisdiction or admissibility.[47] The decision of the Pre-Trial Chamber on the surrender of the accused was not a decision on the admissibility of the case.[48] Therefore, the appeal is inadmissible and should be dismissed.[49]

Prosecutor v. Gaddafi & Al-Senussi[50]

Decision on OPCD Requests


Since the arrest of Mr. Gaddafi and the subsequent litigation on his being transferred to the court, the Chamber was of the view that three issues still remained to be decided: (1) the ability of the OPCD (representing Mr. Gaddafi) to have privileged communications with him; (2) the need to give Mr. Gaddafi the ability to select counsel of his choosing and; (3) and issues related to his eventual transfer to the Court.[51]


The Chamber started by noting that Article 57(3)(b) of the Statute gives the Chamber authority to seek legal representation after they “have been arrested or [have] appeared pursuant to a summons under article 58”.[52] Libya argued that Mr. Gaddafi was not arrested pursuant to an order from the Court and therefore Article 57 does not apply, however, the Chamber disregarded this saying the ability of the Court to order compliance with the Accused’s right to a defence before the Court cannot be conditioned on a State’s compliance with an arrest warrant from the court.[53] The Chamber therefore ordered that the OPCD be given the opportunity to engage in privileged communications with Mr. Gaddafi.[54] The Chamber also requested that the Libyan authorities inform the OPCD, in a timely manner, of the location of the accused so that the OPCD can maintain contact with him.[55] Finally, the Court denied an OPCD request for an ex parte conference on the transfer of the Accused to the Court.[56]


Prosecutor v. Ayyash, Badreddine, Oneissi & Sabra[57]

Order by the Judge Rapporteur on Requests for Participation in Judicial Conference


The Judge Rapporteur ordered that a judicial conference be held in his chambers and that the Prosecution and Defence attend.[58] The Defence Office request that it also be able to attend as did the Victims’ Participation Unit.[59] The Judge granted the Defence request but denied the victims request.


The Judge considered that the Accused requested that the Defence Office be allowed to attend any confidential sessions so that the office would be better able to assist the Accused in their defense.[60] He granted that request. The Victims’ Participation Unit requested to participate so as to safeguard the interests of the victims, however, they did not identify how participation at this juncture (or lack thereof) would affect the victims’ interests and so he denied the request.[61]

International Human Rights Law


Mathloom v. Greece[62]

Chamber Judgment


The case concerned an Iraqi national who was kept in detention for over two years and three months with a view to his deportation, although an order had been made for his conditional release. The court found a violation of the Convention.


The Court found, in particular, that the Greek legislation governing the detention of persons whose expulsion had been ordered by the courts did not lay down a maximum period and therefore did not satisfy the foreseeability requirement under Article 5 § 1.

Yordanova and others v. Bulgaria[63]

Chamber Judgment


The case concerned the Bulgarian authorities’ plan to evict Roma from a settlement situated on municipal land in an area of Sofia called Batalova Vodenitsa. The chamber found a violation of the right to respect for private and family life.


The Court found that the removal order had been based on a law, and reviewed under a decision-making procedure, neither of which required the authorities to balance the different interests involved.

[1] IT-03-67-R77.3-A, 23 April 2012.

[2] Ibid. at ¶¶ 5, 10.

[3] Ibid. at ¶ 6.

[4] Ibid. at ¶ 11.

[5] Ibid. at ¶¶ 13-14.

[6] Ibid.

[7] IT-95-5/18-T, 25 April 2012.

[8] Ibid. at ¶ 1.

[9] Ibid. at ¶ 2.

[10] Ibid. at ¶ 3.

[11] Ibid. at ¶ 8.

[12] Ibid. at ¶ 9.

[13] SCSL-03-1-T, 26 April 2012. All information on this case is taken from the Press Release.

[14] Case File No. 002/19-09-2007-ECCC-TC/SC(14), 25 April 2012.

[15] Ibid. at ¶¶ 1-2.

[16] Ibid. at ¶ 13.

[17] Ibid. at ¶ 15.

[18] Ibid. at ¶16.

[19] ICC-01/04-01/07, 23 April 2012.

[20] Ibid. at ¶ 1.

[21] Ibid. at ¶ 2.

[22] Ibid. at ¶ 4.

[23] Ibid. at ¶ 9.

[24] Ibid.

[25] Ibid. at ¶ 11.

[26] Ibid. at ¶¶ 12-18.

[27] Ibid. at ¶ 19.

[28] Ibid. at ¶¶ 20-21.

[29] Ibid. at ¶ 23.

[30] ICC-01/09-01/11 OA 3 OA 4, 23 April 2012.

[31] Ibid. at ¶¶ 1-8.

[32] Ibid. at ¶ 9.

[33] Ibid. at ¶ 18.

[34] Ibid. at ¶ 21.

[35] Ibid. at ¶ 23. A substantially similar, but procedurally different, decision was issued in the case of Prosecutor v. Muthaura, Kenyatta & Ali on the same day.

[36] ICC-01/11-01/11, 24 April 2012.

[37] Ibid. at ¶ 3.

[38] Ibid. at ¶ 5.

[39] ICC-01/04-01/07, 26 April 2012.

[40] Ibid. at ¶ 1.

[41] Ibid. at ¶ 12.

[42] Ibid. at ¶ 14.

[43] Ibid. at ¶ 18.

[44] ICC-01/11-01/11, 25 April 2012.

[45] Ibid. at ¶ 5.

[46] Ibid. at ¶¶ 6, 8.

[47] Ibid. at ¶ 12.

[48] Ibid. at ¶ 15.

[49] Ibid. at ¶ 16.

[50] ICC-01/11-01/11, 27 April 2012.

[51] Ibid. at ¶ 9.

[52] Ibid. at ¶ 10.

[53] Ibid. at ¶ 11.

[54] Ibid. at ¶ 12.

[55] Ibid. at ¶¶ 14-15.

[56] Ibid. at « 15.

[57] STL-11-01/PT/AC/R176bis, 24 April 2012.

[58] Ibid. at ¶ 1.

[59] Ibid.

[60] Ibid. at ¶ 2.

[61] Ibid. at ¶ 4.

[62] Application No. 48883/07, 24 April 2012. All information on this case is taken from the Press Release.

[63] Application No. 25446/06, 24 April 2012. All information on this case is taken from the Press Release.

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A “Dissent” at the SCSL in the Taylor Case?

The International Law Bureau is reporting that the reserve judge in the Taylor case was silenced while trying to express a “dissent” in the guilt of the former Liberian president. This has not been reported in the media, yet it is possibly the most significant facet of the judgment. Regardless of whether it is proper for a reserve judge to issue a “dissent”, the manner in which this judge appears to have been silenced casts a shadow over the validity of the findings of guilt, especially considering that the full written judgment has not been issued. We cannot review the legal reasoning or the factual evaluations of the Trial Chamber.

It is possible that there is no reason to be concerned and that the judgment, when it is finally issued, will be precise and well reasoned. This is not a good sign, however.

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Spain’s Repsol v Argentine YPF

In the past days we have witnessed an increasing international dispute between Spain’s oil giant Repsol and Argentina. The dispute was triggered by the Argentinean expropriation of Repsol’s Argentine subsidiary, which came on the heels of the nationalist expressions of irredentism for the Falklands/Malvinas islands. This past Monday 16th April, the announcement of expropriation of Repsol by Yacimientos Petroliferos Fiscales [1] (YPF) caused a notable shock that has been followed by political and economic distress in Spain. By contrast, the draft law presented to the Congress for expropriation was applauded in Argentina. In Spain, the decision has to a large extent been received as an act of nationalist aggression, as were the similar cases of expropriation in Venezuela and Bolivia some years ago. Furthermore, the announcement was made soon after the King of Spain had an accident on a controversial hunting trip in Botswana, producing widespread bitterness in a country in serious social, economic and political crisis.

Since 1999, the Spanish oil company Repsol has possessed exploitation rights for the majority of Argentina’s oil resources. Former Argentinean President Nestor Kirchner, deceased husband of the Argentinean President Cristina Fernández Kirchner, granted these rights approximately amounting to 15 billion US dollars provided by the company presided by Antoni Brufau. The takeover of Repsol in Argentina and the control of the oil reserves was carried out in several stages and involved different partnerships and shareholders. The Eskenazi family stands out among these partners for having been brought into the bid in 2008 by the former Argentinean President. Nevertheless, Argentina retained the golden share.

In recent years, increasing dependency of Argentinean development on energy resources has come into contradiction with the need to assure oil resources of the European Union and the declining of Spain. Now the Argentinean oil resources appear to be another icon of the synergies of the former developed regions with the newly developing States.

From an international legal stand, the resolution of the dispute should be guided by the Bilateral Investment Treaty (BIT) concluded between Argentina and Spain, and governed by international law.[2] This BIT declares the procedure to follow in case of dispute in Article 9, specifically negotiation by diplomatic means over a period of six months. If no agreement is reached by these means, the BIT calls for the constitution of an arbitral tribunal.

If the national authorities agree that their treaty clause is in correspondence with the provisions set forth by Article 9 of the BIT, it could well be possible that this case will fall under the conciliation or arbitration auspices provided by the World Bank International Centre for Settlement of Investment Disputes (ICSID).[3]

It follows that this will be a case potentially decided by international arbitration, with all agreed national rules, where the arbitral tribunal will judge the matter in accordance to all applicable international law, the ICSID convention, as well as the BIT.[4]

The arbitral tribunal most certainly will determine the factual background to the controversy, and specifically the privatization process, as can be appreciated in the exercise of arbitral authority in the jurisprudence of other such tribunals. The issues of contract compliance and non-compliance will also be scrutinized as well as the termination of the Concession Agreement. As concerns the parties, most certainly Spain will base its arguments on seguridad juridica (the Spanish legal concept of legal security) and thus alleged violations of Argentine obligations under the BIT. Spain will also likely rely on arguments of the pacta sunt servanda, such as they are requiring fair and equitable treatment, non-discrimination, and full protection and security.

In any event, this dispute should not foster further conflict, something that as for now does not appear to appeal to the authorities of either Government. Spain and Argentina cooperate in numerous ways on the international stage. It should be recalled that both States have an obligation to find a peaceful settling of their disputes, as requires the UN Charter and international law. It is more than evident that a claim for a breach of international legality cannot be an argument for fostering further disputes on the side of Spain that Friday announced commercial restrictions with Argentina. On the other hand, Argentina has an international obligation to serve its legal commitments, and if these commitments are deemed to require a readjustment of national action, this must be guided by principles of lawfulness.[5]

[1] Fiscal petroleum fields YPF was the governmental institution in charge of the Argentinean State oil resources. However, it should be noted that Fiscal in Spanish speaking States necessarily refers to a capacity of a State in fiscal matters, which appears to create contradictions in the use of this name since privatization in 1993.

[2] Acuerdo Para la Promoción y la Protección Reciproca de Inversiones Entre La Republica Argentina y el Reino de España.  Suscripto en Buenos Aires, el 3 de octubre de 1991 y aprobado por Ley 24118, sancionada el 5 de agosto de 1992 y promulgada el 3 de septiembre de 1992.

[3] See International Convention for the Settlement of Investment Disputes:

[4] Article 42 (1) of the International Convention for the Settlement of Investment Disputes: The Tribunal shall decide a dispute in accordance with such rules of law as may be agreed by the parties. In the absence of such agreement, the Tribunal shall apply the law of the Contracting State party to the dispute (including its rules on the conflict of laws) and such rules of international law as may be applicable.

[5] Charter of the United Nations (1945 as amended) at Evans, Malcolm: International Law Documents, Oxford University Press 8ed. (2007) 9 et seq; Cogliandro, Giovanni: International Investment Arbitration: Substantive Principles, International and Comparative Law Quarterly (2007) 735-6; D. Jones: The Iran-United States Claims Tribunal: Private Rights and State Responsibility, Virginia Journal of International Law (1983) 259 et seq; Evans, Malcolm. International Law Documents 8 (2007); Gonzalez de Cossio, Francisco: The International Centre for Settlement of Disputes, ‘The Mexican Experience’, Journal of International Arbitration (2002) 227 et seq; Merrills, John: The Means of Dispute Settlement, in: Evans, Malcolm (ed.), International Law, 2nd ed., Oxford (2006) 533 et seq; Waibel, Michael: Two Worlds of Necessity in ICSID Arbitration: CMS and LG&E, Leiden Journal of International Law (2007) 637 et seq; Azurix Corp. v. Argentina Republic, ICSID Case No. ARB/01/12, Award, July 14th of 2006; Azurix Corp. v. Argentina Republic, ICSID Case No. ARB/01/12, Decision on Annulment, September 1st of 2009; Convention on the Settlement of Investment Disputes Between States and Nationals of Other States of March 18th of 1965; Resolution 2625 of the United Nations General Assembly on the Declaration of Principles of International Law Concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, 24 October 1970; Resolution of the General Assembly on the Manila Declaration on the Peaceful Settlement of International Disputes, 15 November 1982; Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958.

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Review of International Tribunal Decisions for the week of April 16, 2012

This week was the week of Karadžić at the International Criminal Tribunal for the Former Yugoslavia (ICTY) as all of our decisions from that court come from that case. They range from issues of confidentiality to the right of the Registry to respond to requests for administrative review. The International Criminal Tribunal for Rwanda (ICTR) is back this week with a decision on deferral. The Extraordinary Chambers in the Courts of Cambodia (ECCC) dealt with the disqualification of judges and the International Criminal Court (ICC) the appointment of counsel and the employment of interpreters. The European Court of Human Rights (ECtHR) issued numerous decisions ranging from the right to life in conflict situations to the right to life in events that happened before the European Convention came into effect.

International Criminal Law



Prosecutor v. Karadžić[1]

Decision on Motion for Access to Confidential Filing and Decisions in Enforcement Proceedings


The Accused requested access to confidential an inter partes filings in several cases that have already completed.[2] The Prosecution objected to the request arguing that the Accused failed to sufficiently identify the sought material and its purpose.[3] The President denied the motion.


The President noted that enforcement proceedings, unlike the substantive trial, only “address matters related to the enforcement of that convicted person’s sentence” there is no indicated, on its face without more, as to how that information would assist the Accused in his substantive case.[4] Without such a connection, it is inappropriate to grant the motion.[5]

Prosecutor v. Karadžić[6]

Decision on Accused’s Motion for Reconsideration of Chamber’s Decision on Motion to Exclude Intercepted Communications


The Trial Chamber issued a decision on 30 September 2010 denying the Accused’s motion to exclude wiretap evidence that was allegedly obtain in violation of his right to privacy in the 1990’s.[7] The Accused now moves for a reconsideration of this decision on the grounds that the evidence was obtained in violation of the Constitution of Bosnia and Herzegovina and would amount to rewarding the bad behavior of the authorities if the wiretaps could be used in the present proceedings.[8] The Chamber denied the motion.


The Chamber noted that motion “only reiterates the challenge [the Accused] has already raised regarding the alleged illegality of intercepts pursuant to Bosnian law” and that just because evidence was obtained in violation of State law does not mean that it should be excluded from an international criminal trial.[9]

Prosecutor v. Karadžić[10]

Order on Request for Review of Registrar Decision and for Summary Reversal

The Accused filed a request for review of a Registrar decision denying his request to employ two individuals as defense investigators wherein he requested that the Registrar not be allowed to make submission to the President on the matter.[11] The President denied the request to the extent that it was to prevent the Registrar from responding to the request for review and set deadlines for the Registrar to file any submissions and for the Accused to reply thereto.[12]

Prosecutor v. Uwinkindi[13]

“Appeal Chamber Dismisses Uwikindi’s Motion for Stay of Transfer to Rwanda”

The ICTR decided to refer Mr. Uwikindi’s case to Rwanda on 5 April 2012 making him the first person to have a case transferred from the Tribunal to Rwanda. He filed a motion to delay his transfer until his request for reconsideration of the transfer decision is decided.

The Appeals Chamber denied his request finding that it had “already concluded that the Referral Chamber acted within its discretion in distinguishing Mr. Uwinkindi’s case from other cases in Rwanda.” The Chamber also considered “the Defence had failed to show that either the allegations related to the trial of Ms. Ingabire contained in the motion or additional, more detailed submissions with regard thereto would demonstrate a clear error of reasoning in the Appeals Chamber’s decision of 16 December 2011 or require its reconsideration in the interests of justice.”



Case 002

Decsion on IENG Sary’s Appeal Against the Trial Chamber’s Decision on Motions for Disqualification of Judge Silvia Cartwright


The Accused filed a motion relating to meetings between Judge Cartwright and the Prosecution with the Trial Chamber in which the judge is serving.[14] The Trial Chamber decided to treat the motion as one for disqualification of a judge and denied the motion.[15] The Accused appealed and the Supreme Court Chamber rejected the appeal on the merits.


Even though the Trial Chamber treated the original motion as one under Rule 34 on disqualification, instead of one under Rule 35 dealing with interference with the administration of justice, the Supreme Court Chamber decided to treat the appeal as one from a decision on Rule 35 thereby rendering the appeal admissible.[16] The Supreme Court Chamber further held that Rule 35 setting out offenses against the administration of justice applies to the judges of the ECCC.[17] For actions to fall within the ambit of Rule 35 they must be intended to interfere with the administration of justice.[18] The Accused did not alleged that the actions were intended to interfere with the administration of justice, only that they could give an impression of bias.[19] The Chamber held that the meetings themselves do not ipso facto mean there was an attempt to interfere with the administration of justice.[20] Having said this, the Supreme Court Chamber noted that such meetings were not a very good idea and could give rise to the impression of bias.[21]



Prosecutor v. Gaddafi & Al-Senussi[22]

Decision Appointing Counsel from the OPCD as Counsel for Saif Al-Islam Gaddafi


On 3 March 2012, the Office of Public Counsel for the Defense (OPCD) met with Mr. Gaddafi in Libya, at which time he asked the OPCD to either select counsel or help him select counsel and signed a declaration to allow the OPCD to represent his interests until the appointment of counsel.[23]


The Chamber appointed the OPCD to represent the interests of Mr. Gaddafi based on the declaration he signed and the fact that current conditions make it difficult for the OPCD to communicate with Mr. Gaddafi in order to obtain his approval of any counsel that may be selected.[24] The Chamber therefore appointed the OPCD to represent Mr. Gaddafi pursuant to regulation 76(2) in the interests of justice.[25] The Chamber dismissed it for failure to satisfy the requirements of the Rules for disqualification.[26] The Accused argued that the appeal of this dismissal is admissible under rule 104 as an appeal from a rule 35 decision dealing with interference with the administration of justice.[27] The Accused also argued that the meetings between Judge Cartwright and the Prosecution have no legal basis and therefore were impermissible.[28] The Supreme Court Chamber held the appeal was inadmissible.

Prosecutor v. Nourain & Jamus[29]

Order on the Recruitment of Zaghawa Language Assistants by the Prosecution

The Accused objected to the Prosecution hiring of particular Zaghawa speakers as assistants because those same individuals had acted as interpreters during privileged telephone calls between the Accused and their counsel and so were privy to confidential information.[30] The Registry responded that the dearth of Zaghawa language assistants would threaten the Registry’s ability to provide interpretation at trial.[31] The Prosecution submitted that it would not hire the individuals in question.[32] Since the Prosecution decided not to hire the interpreters, the Chamber dismissed the motion as moot.[33]

International Human Rights Law



Estamirova v. Russia[34]

Chamber Judgment


The applicant, Sovman Estamirova, is a Russian national who was born in 1959. At the time of the events she lived in Argun; she currently lives in Noybera. Both towns are in the Chechen Republic. Her case concerned the killing of her husband, Asradiy Estamirov, born in 1957, on 5 January 2001 during an intense exchange of fire between a military convoy and unidentified people, while he happened to be standing at a street corner in Argun. The investigation into his death, still in progress, has so far failed to identify those responsible. The Court held that there was no violation of Article 2 right to life, however there were violations regarding the applications right to an adequate investigation and just satisfaction.


Ms Estemirova’s husband had been shot as a result of an exchange of fire between a military convoy and unidentified people. There had been no direct witnesses to the incident. Nor was there material evidence to prove whether the bullet which had caused her husband’s death had been fired from a weapon belonging to the military or to the unidentified group. The Court could not therefore conclude “beyond reasonable doubt” that Asradiy Estamirov had been shot by the Russian military. There had therefore been no violation of Article 2 as concerned the killing of Asradiy Estamirov.

The Court found, however, that there had been a violation of Article 2 concerning the authorities’ failure to conduct an effective investigation into the circumstances in which Asradiy Estamirov had died. Notably, numerous essential steps had not been taken such as questioning the head of the military convoy, the senior drivers and other servicemen. There had also been a delay of more than eight years in carrying out a ballistic expert examination to identify the firearms used during the incident. Moreover, the investigation had been suspended and resumed on a number of occasions with lengthy periods of inactivity and, although Ms Estemirova had been told of those procedural steps, she had not been informed of any significant developments.

Based on the ineffective criminal investigation, the Court found a violation of the right to an effective remedy.

Grudić v. Serbia[35]

Chamber Judgment


The case concerned complaints by two Serbians of Bosniak origin about prolonged non-payment of their disability pensions.


The retirement fund based its decisions to suspend the proceedings in which the applicants claimed the resumption of their pension payment on the basis of the Opinions of the Ministry for Social Affairs and the Ministry for Labour, Employment and Social Policy of March 2003 and June 2004 respectively, which apparently had never been published in the official gazette. At the same time, the Constitutional Court had held that such opinions did not amount to legislation but were merely meant to facilitate its implementation. Furthermore, the Supreme Court had specifically noted in its Opinion of 15 November 2005 that the recognised right to a pension could only be restricted on the basis of Article 110 of the Pensions and Disability Insurance Act. Consequently, the Court concluded that the authorities’ interference with Mr and Mrs Grudić’s possessions had not been in accordance with the relevant domestic law.

Janowiec and Others v. Russia[36]

Chamber Judgment


The applicants are 15 Polish nationals who are relatives of 12 victims of the Katyń massacre. The 12 victims were police and army officers, an army doctor and a primary school headmaster. Following the Red Army’s invasion of the Republic of Poland in September 1939, they were taken to Soviet camps or prisons and were then killed by the Soviet secret police without trial, along with more than 21,000 others, in April and May 1940. They were buried in mass graves in the Katyń forest near Smolensk, and also in the Pyatikhatki and Mednoye villages. The Court determined that it could not reach the merits of the case regarding the obligation to investigate the loss of life, but reached the merits and found violations of the prohibition against inhumane treatment.


Russia ratified the Convention 58 years after the killing of the applicants’ relatives. That period was not only many times longer than the periods which had triggered the State’s obligation to investigate in all earlier cases decided by the Court, but it was excessively long also in absolute terms. Therefore, it was not possible to establish a genuine connection between the deaths and the entry into force of the Convention in Russia.

The Court then examined whether the circumstances of the case could justify a connection between the deaths and the ratification on the basis of the need to ensure the effective protection of the Convention guarantees and values. It found that the mass murder of the Polish prisoners by the Soviet secret police had been a war crime, as the obligation to treat prisoners of war humanely and the prohibition to kill them had clearly been part of international customary law, which the Soviet authorities had had a duty to respect. However, even taking into account that war crimes were not subject to a statute of limitations, no evidence raising new or wider issues had been discovered after the ratification, hence Russia’s obligation to investigate could not be revived. There was therefore no connection on which to base responsibility under the Convention.

This was not true when it came to the treatment of the victims’ relatives. As regards the first group of 10 applicants, the Court found that they had suffered a double trauma: losing their relatives in the war and not being allowed to learn the truth about their death for more than 50 years because of the distortion of historical facts by the Soviet and Polish communist authorities. In the post-ratification period, they had not been given access to the investigation’s materials, nor had they otherwise been involved in the proceedings or officially informed of the outcome of the investigation. What was more, they had been explicitly prohibited from seeing the 2004 decision to discontinue the investigation on account of their foreign nationality. The Court was struck by the apparent reluctance of the Russian authorities to recognise the reality of the Katyń massacre. The approach chosen by the Russian military courts to maintain, to the applicants’ face and contrary to the established historic facts, that their relatives had somehow vanished in the Soviet camps, demonstrated a callous disregard for the applicants’ concerns and deliberate obfuscation of the circumstances of the Katyń massacre. The Russian prosecutors also rejected any attempts to “rehabilitate” those who were executed by clearing their records. The State also had a duty to locate the victims, which it did not do. There was therefore a violation of the duty to humanly treat the family of the victims.

[1] IT-95-5/18-T, 17 April 2012.

[2] Ibid. at p. 1.

[3] Ibid.

[4] Ibid. at p. 2.

[5] Ibid. at p. 3.

[6] IT-95-5/18-T, 18 April 2012.

[7] Ibid. at ¶ 1.

[8] Ibid. at ¶ 2.

[9] Ibid. at ¶¶ 5-6.

[10] IT-95-5/18-T, 20 April 2012.

[11] Ibid. at p. 2.

[12] Ibid.

[13] Unfortunately the decision is not available on the website of the ICTR. All information in this summary is taken from the press release.

[14] Ibid. at ¶ 1.

[15] Ibid. at ¶ 3.

[16] Ibid. at ¶¶ 11-17.

[17] Ibid. at ¶¶ 18-19.

[18] Ibid. at ¶¶ 20-21.

[19] Ibid. at ¶ 22.

[20] Ibid. at ¶ 23.

[21] Ibid. at ¶ 24.

[22] ICC-01/11-01/11, 17 April 2012.

[23] Ibid. at ¶ 3.

[24] Ibid. at ¶ 5.

[25] Ibid. at ¶ 6.

[26] Ibid.

[27] Ibid. at ¶ 4.

[28] Ibid. at ¶ 6.

[29] ICC-02/05-03/09, 18 April 2012.

[30] Ibid. at ¶ 1.

[31] Ibid. at ¶ 3.

[32] Ibid. at ¶ 4.

[33] Ibid. at ¶ 5.

[34] Application No. 27365/07, 17 April 2012. All facts and information are taken from the press release.

[35] Application No. 31925/08, 17 April 2012. All facts and information are taken from the press release.

[36] Application Nos. 55508/07 and 29520/09, 16 April 2012. All facts and information are taken from the press release.

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OHCHR calls for the integration of Human Rights and Sustainable Development in Rio+20

In June heads of State, delegates of govermental and international institutions, along with CEOs, and civil society leaders will come together at Rio de Janeiro with the purpose of defining new policies and measures to promote prosperity, reduce poverty and advance social equity and environmental protection.

On 18 April 2012 the High Commissioner for Human Rights stressed that countries must integrate human rights into the upcoming sustainable development conference taking place in the Brazilian city, as well as in its outcome. Top UN official believe that not doing so will undercut efforts to advance socio-economic development and protect the environment.

UN High Commissioner for Human Rights, Navanethem Pillay declared that “strategies based on the narrow pursuit of economic growth without due regard for equity and related environmental, social and human rights considerations, will both fail in their economic objectives, and risk damaging the planet and the fundamental rights of people”.

In the view of the Office for Human Rights, the draft outcome document of the UN Conference on Sustainable Development (Rio+20) fails to take sufficient account of human rights imperative. It affirms that “In recent years, people have taken to the streets in every region of the world, passionately demanding their fundamental human rights – in many instances at great personal risk”.

The High Commissioner noted that “for Rio+20 to be successful, its outcome must ensure that explicit human rights safeguards are in place” and called national authorities to ensure that explicit attention is paid to protecting fundamental human rights such as the access to food, water and sanitation, health, housing and education, and participation in public affairs. Ms. Pillay added that “a strong outcome at Rio, seamlessly integrating the environmental, social, economic, and human rights elements of sustainable development, will do much to help us advance our collective mission to create a world free from fear and from want”.

The High Commissioner recalled numerous examples of projects aimed at sustainable development seriously threating the rights of already vulnerable communities, leading to landlessness, homelessness and economic dispossession. Many of them have also resulted in the exclusion of women from decision-making, the diversion of scarce food-growing lands for the production of biofuels and threats to the lands and livelihoods of indigenous peoples. “Simply put, participatory, accountable, non-discriminatory and empowering development is more effective, more just and ultimately more sustainable,” said the High Commissioner.

Source United Nations News Centre:

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Il contrasto alla pirateria marittima: le sfide attuali – A Lecture on Piracy by Prof. Ronzitti

On Monday, 16 April 2012, I had the pleasure of attending a lecture by Professor Natalino Ronzitti at the Libera Università Internazionale degli Studi Sociali Guido Carli in Rome where he discussed the arrest, prosecution and punishment of pirates. Prof. Ronzitti has taught at universities around the world from Italy, the United Kingdom, the United States and Egypt. He has also served as and advisor to government ministries and published on the issues of piracy, national sovereignty, armed conflict and international law generally. The lecture hit a high point of interest when Prof. Ronzitti discussed the events on the Enrica Lexie, something that has been discussed often on this blog. He argued that Italy should have exclusive jurisdiction over the Italian guards accused of killing the Indian fishermen.

Prof. Ronzitti started by setting out what is meant by “piracy” in international law. By definition, piracy is a crime that is committed on the high seas, meaning not within the territorial sea of any State. That is to say that “piracy” for the purpose of this discussion is the crime iure gentium (international crime), as opposed to any set of acts called “piracy” by the laws of a particular State. Within this context, Prof. Ronzitti set out two necessary criteria for an act to be considered “piracy”: (1) that the events involve at least two ships and; (2) that the would-be piratical acts were committed for private ends. This last criterion, for example, excludes acts that are committed for political ends.

Next the professor turned to the methods available to prosecute and punish piracy. The primary method he identified was the arrest and trial of the alleged pirates by national authorities (a solution acknowledged to be often inconsistent due to varying national laws and practices). He emphasized that only national military ships (and those other clearly identified ships dedicated to the purpose by national authorities) are authorized to stop pirates. Private individuals or vessels are not permitted to go pirate hunting. The right to seize pirates on the high seas includes the limited right to stop vessels that fly under the flag of a State different form the one of the military vessel conducting the stop. In the case of pirates off the Somali coast, the United Nations Security Council has authorized States to conduct piracy suppression actions in Somali national waters and under certain circumstances to pursue the pirates aground in Somalia.[1]

This brought the discussion to the legal methods available to private ships to protect themselves from pirates. Prof. Ronzitti referred to the work of the International Maritime Organization (their website can be found here). In particular he referenced the fact that it is permissible to have armed security on commercial ships to repel pirate attacks. However, these armed personnel are limited to a defensive role and are not permitted to pursue the pirates. He pointed out that France uses its own military to provide security, while Spain employs private guards and Italy (at least legislatively) permits both.

At this point the lecture turned to address the growing dispute between India and Italy over the Enrica Lexie. This is the incident involving the Italian guards on the oil tanker that allegedly fired on, and killed, Indian fishermen whom they mistook for pirates. These two Italian guards are currently in Indian custody awaiting trial. The controversy centers on whether or not India can rightly assert jurisdiction over the case under governing principles of Public International Law. (A more detailed description of the events and the controversy can be found here.)

Prof. Ronzitti started by noting that the events took place on the high seas (admittedly within India’s exclusive economic zone, however, that is still the high seas) and that the facts of the incident are in dispute. However, he wished to point out that the current incident would have been avoided had the Italian vessel not diverted to Kochi. The reason stated for the Lexie going to Kochi was to identify the pirates who had attacked the ship earlier in the day. This of course was a pretext that permitted the Indian authorities to seize the vessel and arrest the two Italian military guards. Had the vessel not diverted to Kochi, there would have been no arrest.

On the issue of jurisdiction over events on the high seas, Prof. Ronzitti discussed three articles of the United Nations Convention on the Law of the Sea (UNCLOS). He first mentioned Article 97 as a cited basis for denying Indian jurisdiction over the events in question. This article provides,

1. In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national. […] 3. No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State.

Prof. Ronzitti quickly pointed out that while the provisions of this article refer to “any other incident of navigation”, the real meaning of this phrase is to encompass other collisions that may not be between two ships (such as a vessel colliding with an offshore oil rig). Another article referred to was Article 94, however it too is of little assistance to the Italian case.[2] Prof. Ronzitti then turned to Article 92 which reads in pertinent part,

Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry.

The professor argued that this article would be a better basis to assert exclusive Italian jurisdiction over the events on the Enrica Lexie. However, he also admitted that it could be argued that the shooting events took place both on the Italian vessel and on the Indian ship thereby establishing jurisdiction under Article 92 for both States. A more complete description of the applicatoin of this “objective” teritorial principle to this case can be found here.

Prof. Ronzitti’s strongest argument for exclusive Italian jurisdiction over the guards accused of killing the Indian fishermen was based on the idea of functional immunity. He emphasized that the Italian guards are members of the Italian military  (he noted also that the legislative framework for private Italian guards has not yet been workably put in place). In particular, he pointed out that both national Italian law and United Nations resolutions support the use of armed guards to repel pirates. As agents of national and international policy, he argued, the actions of the Italian military guards should be attributed to Italy, not the guards individually. This would exclude their criminal trial in India. Prof. Ronzitti noted that this kind of function immunity has a basis in customary international law going back to the early 1800’s.[3]

The lecture was graciously organized by Professor Marina Mancini of the Dipartimento di Giurisprudenza at LUISS.

[1] Prof. Ronzitti made reference to UN Security Council Resolution 1851 of 2008.

[2] It reads in pertinent part “7. Each State shall cause an inquiry to be held by or before a suitably qualified person or persons into every marine casualty or incident of navigation on the high seas involving a ship flying its flag and causing loss of life or serious injury to nationals of another State or serious damage to ships or installations of another State or to the marine environment. The flag State and the other State shall cooperate in the conduct of any inquiry held by that other State into any such marine casualty or incident of navigation.”

[3] He specifically referred to the McLeod Case which can be found in, Moore: A digest of international law as embodied in diplomatic discussions, treaties and other international agreements, vol. 2, Washington, Government printing office, 1906 at § 217.


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Review of International Tribunal Decisions for the week of April 9, 2012

This week saw decisions from the International Criminal Tribunal for the Former Yugoslavia (ICTY) on reconsideration and protective measures for documents. The European Court of Human Rights (ECtHR) issued decisions on ill treatment, extradition and child custody.

International Criminal Law


Prosecutor v. Stanišić & Župljanin[1]

Decision Denying the Prosecution’s Motion for Reconsideration or Certification of “Decision Denying Prosecution’s Fifth Motion Seeking Leave to Present Evidence in Rebuttal” of 28 March 2012

The Prosecution filed a confidential motion for reconsideration of the Chamber’s decision denying their motion to file evidence in rebuttal.[2] The Chamber denied it because the Prosecution failed to demonstrate a clear error in logic or new facts that would require a different decision.[3] The Chamber also denied leave to appeal, as the Prosecution did not demonstrate that an appeal would advance the proceedings.[4]

Prosecutor v. Stanišić & Simatović[5]

Decision on the Republic of Serbia’s Request for Protective Measures for Four Documents


Serbia filed a request with the chamber for protective measures, namely the redaction of the names of State officials, the source of the information contained in documents and to whom the documents were originally addressed claiming that disclosure would negatively effect national security and put those involved in jeopardy.[6] The Prosecution objected to any redaction of the original recipients.[7] The Chamber granted the request in part.


The Chamber held that there was no basis to redact the names of the authors of the documents as Serbia had failed to demonstrate how their disclosure would affect its national security.[8] The Chamber equally found that Serbia failed to demonstrate how revealing the names of recipients would affect national security.[9] By contrast, the Chamber recognized that the disclosure of information sources would affect national security interests and so ordered that the sources be redacted.[10]

International Human Rights Law


Ali Güneş v. Turkey[11]

Chamber Judgment


The case concerned a complaint by a high-school teacher who took part in a demonstration against the 2004 NATO summit in Istanbul that the police had ill-treated him, including by spraying tear gas on him. The Court found a violation of Article 3 of the European Convention prohibiting inhuman or degrading treatment.


The Court found in particular that: 1) the authorities had been unable to justify the use of tear gas against Mr Güneş after he had already been apprehended by the police; and, 2) no effective investigation had been carried out into his related complaints.

Babar Ahmad and Others v. the United Kingdom[12]

Chamber Judgment


The applicants are wanted in the United States (in various different jurisdictions) for various terrorism related offences including murder. The US Government requested each applicant’s extradition from the United Kingdom. As a result, all six applicants were arrested in the UK and placed in detention pending extradition. They then contested their extradition in separate proceedings in the English courts, without success, their requests for leave to appeal to the House of Lords and the Supreme Court ultimately being rejected between 2007 and 2009. The court found that there was no violation of Article 3 of the European Convention because of the long sentences that the applicants face in the United States and that the conditions in the “supermax” facility were not such as to constitute inhuman and degrading treatment.


Having fully considered all the evidence from both parties, including specifically prepared statements by officials at the “supermax” facility as well as letters provided by the US Department of Justice, the Court held that conditions at facility would not amount to ill-treatment. This conclusion was in part reached because the inmates, while confined to their cells for the majority of the time, have access services and activities such as television, radio, newspapers, books etc which are not available in many European prisons.

When it came to the length of the sentences, having regard to the seriousness of the offences in question, the Court did not consider that these sentences were grossly disproportionate or amounted to inhuman or degrading treatment. There would therefore be no violation of Article 3 in the case of any of these five applicants if they were extradited, convicted and given life sentences.

K.A.B. v. Spain[13]

Chamber Judgment


The case concerned the adoption – despite the father’s opposition – of a child who was declared abandoned after his mother’s deportation. The Court found a violation of Article 8 guaranteeing respect for the applicant’s private and family life.


The Court found, in particular, that the authorities’ inaction, the deportation of the mother without prior verification, the failure to assist the applicant with his formalities, in spite of his precarious situation, and the excusive attribution of responsibility to the applicant for the child’s abandonment, had decisively contributed to preventing any possibility of reunion between father and son, in breach of the applicant’s right to respect for his private life.

[1] IT-08-91-T, 11 April 2012.

[2] Ibid. at p. 1.

[3] Ibid.

[4] Ibid.

[5] IT-03-69-T, 12 April 2012.

[6] Ibid. at ¶ 2.

[7] Ibid. at ¶ 3.

[8] Ibid. at ¶ 12.

[9] Ibid. at ¶ 14.

[10] Ibid. at ¶ 13.

[11] Application no. 9829/07, 10 April 2012. All facts are taken from the press release.

[12] Application nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09, 10 April 2012. All facts are taken from the press release.

[13] Application no. 59819/08, 10 April 2012. All facts are taken from the press release.

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