Review of International Tribunal Decisions for the week of May 7, 2012

This week’s review has decisions and judgments from the International Criminal Tribunal for the Former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), Special Tribunal for Lebanon (STL), International Criminal Court (ICC) and The European Court of Human Rights (ECtHR). The ICTY issued a decision on administrative review (a rather terse rebuke of the Registrar), the ICTR issued an appeal judgment in the case against Mr. Ntabakuz, the STL issued a ruling on word limits and the ICC issued a decision on the temporary disqualification of the Prosecutor in the case against Saif Al-Islam Gaddafi. The ECtHR issued a decision against Russia stemming from the unnecessary use of force in preventing a soldier from deserting.

International Criminal Law

ICTY

Prosecutor v. Karadžić[1]

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

Background

The Accused filed a request to have two individuals appointed to his defense team as investigators which were denied by the Registry in single sentences because of their “role during the time relevant to the indictment against you”.[2] The Accused appealed to the Presidency on the grounds that the decision was too vague to satisfy due process.[3] The President of the Tribunal agreed.

Reasoning

The President found that the “failure to explain risks appearing arbitrary, [violated] Karadžić’s right to procedural fairness.”[4] While the Registrar provided further detail in his response to the appeal, “post hoc rationalization is insufficient to demonstrate the propriety of the initial decision. […] As [the President] noted, the two sentences devoted to explaining the Impugned Decision are so general that it is not possible to identify specifically any underlying rationales. […] Administrative decisions are pronouncements of Delphic oracles, and should be comprehensible on their face.”[5] The President also expressed concern about the Registrar attempting to determine the role of particular members of the defense team, especially those with “ancillary” positions such as investigators.[6]

ICTR

Ntabakuze v. Prosecutor[7]

Judgment

Background

The Accused was found guilty by the Trial Chamber as a “superior of genocide, crimes against humanity, and serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II for the killings of Tutsi civilians” and sentenced to life imprisonment.[8] On Appeal, he challenged several of the Trial Chamber’s findings and in some cases the Appeals Chamber sustained his appeal and reduced his sentence.

Reasoning

The Accused appealed his conviction arising out of a particular incident claiming that the Trial Chamber erred in determining that his subordinates committed the crimes.[9] The Appeals Chamber found, by majority, that the evidence supported two separate conclusions: that the physical perpetrators were subordinates of the Accused and that they belonged to a different unit.[10] The Appeals Chamber therefore granted the appeal on this point. In his 15th ground of appeal, the Accused complained that the Trial Chamber had convicted him both for “murder” and “extermination” as crimes against humanity because such a conviction is “cumulative”, the Appeals Chamber agreed.[11] As a consequence of granting these grounds of appeal, the Accused’s sentence was reduced to a term of 35 years.

STL

Prosecutor v. Ayyash, Badreddine, Oneissi & Sabra[12]

Decision on Extension of Word Limits for the Filing of Preliminary Motions Challenging Jurisdiction

Background

The several defense teams filed preliminary motions challenging the jurisdiction of the Tribunal, some of which were over the page and word limits proscribed in the Practice Direction on Filing of Documents and containing motions for an extension thereof, leading to their rejection and return by the Registry with instructions to file motions in compliance with the Direction or, alternatively, separate motions for an extension of the page and word limits.[13] The Defense filed said motions and complained about the need to file extension requests separately as inconsistent with the practice at other tribunals.[14] The requests for extension on the jurisdictional challenges were granted.

Reasoning

The Trial Chamber rejected the argument that practice at the ad hoc Tribunals allows for simultaneous filing of an oversize motion and the request for an extension of the word limit as, while it has been allowed, it is a disfavored practice at those institutions.[15] The Chamber went on to say that presenting to oversize motion and the extension request together presents the “Judge or Chamber with a fait accompli” and that filing the request before the deadline “achieves fairness to the opposing parties by allowing them to respond to the application in advance.”[16] The Chamber however, considered that the importance of the motion challenging jurisdiction is important and that more detailed briefs would be of assistance.[17] The Chamber therefore granted, for the most part, the word, page and time limit extensions requested by the Defense.[18]

ICC

Prosecutor v. Gaddafi & Al-Senussi[19]

Decision on the request to temporarily suspend the Prosecutor from conducting any prosecutorial activities related to the case pending the determination of the request for disqualification

The appointed defense counsel requested that the Prosecutor be prevented from conducting any investigations and that he be removed from the case for misconduct. The Appeals Chamber summarily dismissed the request for an injunction pending its decision on the substance of the disqualification motion, in which its reasons for denying the injunction will be explained. The Appeals Chamber said that this decision is “without prejudice to the Appeals Chamber’s consideration of the request to disqualify the Prosecutor from participating in the case.” But I bet it is not a good sign.

International Human Rights Law

ECtHR

Putintseva v. Russia[20]

Chamber Judgment

Background

While performing his mandatory military service, Valeriy Putintsev, left the military unit without permission in February 2002. Arrested three days later, he was placed in a disciplinary cell in punishment for absence without leave. During his detention, Mr Putintsev hit a junior sergeant on the head when the sergeant attempted to search him. Following the incident, a medical examination of both men was ordered. While escorting Mr Putintsev from the military hospital back to the detention unit on 15 February 2002, the junior sergeant, in an attempt to prevent him from escaping, fired at Mr Putintsev and wounded him in the buttock. On 27 February 2002, Mr Putintsev died from the gunshot wound. The Court found a violation of the right to life resulting from the killing, but not the insufficiency of the investigation.

Reasoning

The Court was satisfied that the Russian authorities conducted an independent, expeditious and thorough investigation into the incident. However, it found that the legal framework on the use of force to prevent the escape of a soldier had been deficient and that the authorities had failed to minimize recourse to lethal force.


[1] IT-95-5/18-T, 7 May 2012.

[2] Ibid. at ¶ 2.

[3] Ibid.

[4] Ibid. at ¶ 9

[5] Ibid. at ¶ 10.

[6] Ibid. at ¶ 12.

[7] ICTR-98-41A-A, 8 May 2012. All information is taken from the press release.

[8] Ibid. at ¶ 3.

[9] Ibid. at ¶ 14.

[10] Ibid. at ¶ 15.

[11] Ibid. at ¶¶ 23 – 24.

[12] STL-11-01/PT/TC, 8 May 2012.

[13] Ibid. at ¶¶ 2-3.

[14] Ibid. at ¶¶ 4 – 6, 8.

[15] Ibid. at ¶ 11.

[16] Ibid. at ¶ 12.

[17] Ibid. at ¶ 13.

[18] Ibid. at ¶¶ 14 – 17.

[19] ICC-01/11-01/11 OA 3, 11 May 2012.

[20] Application No. 33498/04. All information is taken from the press release.

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