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

ICTY

Prosecutor v. Šešelj[1]

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

Background

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.

Reasoning

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

Background

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.

Reasoning

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]

SCSL

Prosecutor v. Taylor[13]

Judgment

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.

ECCC

Case 002[14]

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

Background

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.

Reasoning

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]

ICC

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

Background

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.

Reasoning

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”

Background

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.

Reasoning

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”

Background

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.

Reasoning

“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

Background

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.

Reasoning

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

Background

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.

Reasoning

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

Background

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]

Reasoning

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]

STL

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

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

Background

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.

Reasoning

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

ECtHR

Mathloom v. Greece[62]

Chamber Judgment

Background

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.

Reasoning

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

Background

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.

Reasoning

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.

1 Comment

Filed under Weekly Review

One response to “Review of International Tribunal Decisions for the week of April 23, 2012

  1. Pingback: Review of International Tribunal Decisions for the week of July 9, 2012 | The {New} International Law

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