Review of International Tribunal Decisions for the week of May 21, 2012

This week the International Criminal Tribunal for the Former Yugoslavia (ICTY), Special Tribunal for Lebanon (STL) and the International Criminal Court (ICC) make a showing with important decisions on jurisdiction, delay in the start of trial and victim participation.

International Criminal Law


Prosecutor v. Mladić[1]

Decision on Urgent Defence Motion of 14 May 2012 and Reasons for Decision on Two Defence Requests for Adjournment of the Start of Trial of 3 May 2012


The defense filed three requests for a postponement of the trial for alleged disclosure violations.[2] The Chamber denied the first two and granted the third.


The Chamber denied the first request because it could not be certain which documents (if any) were not disclosed.[3] The Chamber decided that the allegedly non-disclosed material relating to the second request were in the possession of the defense.[4] The Chamber considered the reasons advanced in the third request by the defense and dismissed them as insufficient to require a postponement of the trial.[5] However, the Prosecution put forward the view that the delay in disclosure related to the third request could affect the ability of the defense to prepare its case.[6] The Chamber granted a postponement of the trial until 25 June 2012.[7]


Prosecutor v. Ayyash, Badreddine, Oneissi & Sabra[8]

Decision on the Legal Representatives of Participating Victims’ Motion Regarding Defence Challenges to Jurisdiction


The Legal Representative appointed to some victims granted the right to participate requested an extension of time to file his response to the Defense challenge to the jurisdiction of the tribunal based in part on his lack of direct communication with his clients and his not having access to certain case material.[9] The Chamber denied the motion.


The Chamber noted that motion challenging jurisdiction of the court is based on “readily available public material and principally concern questions of public international law” so that the Representative’s access to case material is not relevant to responding to the motions and that he will have enough time to file a response that “need not be lengthy”.[10]


Prosecutor v. Bemba[11]

Decision on 1400 Application by Victims to Participate in the Proceedings


From November 2011 through January 2012 the Registry forwarded a total of 1400 applications of victims to participate in the proceedings in the Bemba case to which the parties responded.[12] The Chamber granted 1377 requests to participate, rejected 16 and deferred its decision as to one of the applications.


The Chamber set out that there was no reason to address the legal requirements for participation as the Chamber had done so in prior decisions and dismissed the defence requests for more information as having already been addressed in prior decisions.[13] The Chamber issued its decision with several annexes that are ex parte and for the Registry and designated counsel only containing the reasoning on each individual application.[14]

Prosecutor v. Ruto, Kosgey & Sang[15]

Decision on the appeals of Mr William Samoei Ruto and Mr Joshua Arap Sang against the decision of Pre-Trial Chamber II of 23 January 2012 entitled “Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute”


The Accused filed a challenge to the interpretation of “organizational policy” used by the Pre-Trial Chamber in confirming the charges against them pursuant to article 7(2)(a) of the Rome Statute allowing appeals to issues of jurisdiction.[16] The Appeals Chamber denied the motion.


The Appeals Chamber held,

in the context of this case, treating the interpretation and existence of ‘organizational policy’ as jurisdictional matters conflates the separate concepts of jurisdiction and the confirmation process; yet it is the latter that is designed to consider the matters raised on these appeals and filter unmeritorious cases from progressing to trial. To find that the grounds that Mr Ruto and Mr Sang raise in these appeals relate to jurisdiction would duplicate what was covered by the confirmation process. If the Appeals Chamber were to address the merits of Mr Ruto and Mr Sang’s grounds of appeal any further, it would, in fact, be assessing the correctness of the decision to confirm the charges against them, insofar as it related to the existence of an ‘organizational policy’. Yet neither Mr Ruto nor Mr Sang sought leave from the Pre-Trial Chamber to appeal the interpretation of ‘organizational policy’, nor was leave granted in relation to certain evidential challenges that they sought to raise, pursuant to article 82 (1) (d) of the Statute.[17]

A challenge against the jurisdiction of the ICC was therefore not before the Appeals Chamber.[18]

[1] IT-09-92-T, 24 May 2012.

[2] Ibid. at ¶¶ 1-8.

[3] Ibid. at ¶¶ 16, 18.

[4] Ibid. at ¶ 17.

[5] Ibid. at ¶¶ 20-23.

[6] Ibid. at ¶ 24.

[7] Ibid. at ¶ 26.

[8] STL-11/01/PT/TC, 25 May 2012.

[9] Ibid. at ¶¶ 1-2.

[10] Ibid. at ¶ 3.

[11] ICC-01/05-01/08, 21 May 2012.

[12] Ibid. at ¶¶ 1-8.

[13] Ibid. at ¶¶ 17-18.

[14] Ibid. at ¶ 19.

[15] ICC-01/09-01/11 OA3 OA4, 24 May 2012.

[16] Ibid. at ¶¶ 1, 3-5.

[17] Ibid. at ¶ 29.

[18] Ibid. at ¶¶ 33-34. An almost identical decision was also issued in the other Kenya case on the same day.


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