Monthly Archives: June 2012

Review of International Tribunal Decisions for the week of June 24, 2012

This weeks review has decisions and judgments from the International Criminal Tribunal for the Former Yugoslavia (ICTY), the Extraordinary Chambers in the Courts of Cambodia (ECCC), the International Criminal Court (ICC), The European Court of Human Rights (ECtHR) and the African Court of Human and People’s Rights (ACtHPR). This week saw a lot of activity at the ICTY in the Mladć case and Case 002 at the ECCC.

International Criminal Law

ICTY

Prosecutor v. Mladć[1]

Decision on Submissions Relative to the Proposed “EDS” Method of Disclosure

Background

The Prosecution proposed to use the Tribunal’s Electronic Disclosure System (EDS) to provide the Accused with the documents that contained exculpatory materials by placing those materials in searchable electronic indices in the electronic system.[2] The Accused objected to this disclosure system and also requested the Prosecution disclose any “meta-data”.[3] The Accused further requested that the trial be postponed until such time as all the meta-data is disclosed.[4]

Reasoning

The Chamber noted that the Prosecution is has “a positive and continuous obligation to disclose potentially exculpatory materials under Rule 68 and that simply placing a document in the EDS system does not make the Accused aware of its existence.[5] The Chamber also noted that neither Rule 68 or case law requires that the Prosecution disclose meta-data and so the Prosecution cannot be said to out of compliance with its disclosure obligations.[6] Notwithstanding this lack of affirmative duty, the Chamber decided to consider whether the Prosecution needed to disclose such data “in the interests of justice.” Since the Prosecution was already in the process of disclosing the requested material, the Chamber declined to issue an order to do so.[7] The Chamber in the end emphasized that its decision was not meant to encourage the Prosecution to terminate its efforts to comply with the Accused’s requests.[8]

Prosecutor v. Mladć[9]

Decision on the Defence Motions for Certification to Appeal the Decisions on the Prosecution Motion for Judicial Notice and Adjudicated Facts

Background

The Accused filed several motions, in response to a series of decisions, seeking certification to appeal the Chamber’s judicial notice of 1,974 facts proposed by the Prosecution (although some were slightly reformulated from the manner in which they were proposed).[10] The Accused also argued that even though his motion challenging the first judicial notice decision was filed late, that this was excusable because that decision was only a part of the whole decision of the Chamber on the issue and so the motion should be considered to be timely filed.[11] The Chamber granted the motions.

Reasoning

The Chamber considered the first motion to be validly filed because all the motions were intertwined and the certification of some of them might lead to putting the subject matter of the first one before the Appeals Chamber regardless of whether it was certified or not.[12] The Chamber recalled that judicially noticed facts could have a major effect on the way the parties prepare and present their cases and that the sheer number of them in this case means that any resolution of the issue by the Appeals Chamber will significantly affect the fair and expeditious conduct of the proceedings as is required under the rules for certification to appeal.[13] Given the early stages of the proceedings, certification would advance the proceedings by clarifying the issues from the beginning and so the test for certification was met.[14]

In the Matter of Vojislav Šešelj[15]

Public Redacted Version of Judgement Issued on 28 June 2012[16]

Mr. Šešelj was charged with contempt of the tribunal for not removing certain materials form his website that contained confidential information about protected witnesses. He pled not guilty. During the proceedings the Registry did not certify Mr. Šešelj’s case manager from the main proceedings against him to participate. Subsequently, Mr. Šešelj decided not to testify in this case and argued that the whole proceedings had been unfair due to the lack of resources provided to him by the Registry. The Chamber found Mr. Šešelj guilty of failing to follow the orders of the tribunal, and considering his history of contempt and prior convictions for such, sentenced him to two years. Judge Trechsel partially dissented as to length of the sentence saying it should have been considerably less.

ECCC

Case 002

Scheduling of Reassessment and Hearing on IENG Thirith Fitness to Stand Trial

The Trial Chamber issued an order to reassess Mrs. Ieng’s fitness to stand trial after a prior determination that she was not competent due to cognitive degeneration (most likely Alzheimer’s). This is following a prior decision by the Chamber ordering her release, that was subsequently overruled on appeal with instructions to try and rehabilitate her ability to participate. This order follows the implementation of that attempt to rehabilitate Mrs. Ieng. The other accused are not to attend the hearing except for her husband, who may attend if he so chooses.

Case 002[17]

Decision on NUON Chea Defence Counsel Misconduct

The Chamber noted a continued pattern of misconduct by the international members of the defense team, included violation of court orders and unauthorized disclosure to the press, and therefore decided to set out the legal basis and consequences for a prior oral warning.[18] The Chamber therefore decided to refer the misconduct to the respective bar association of defense counsel.

ICC

Prosecutor v. Gbagbo[19]

Decision on OPCV requests for access to confidential documents in the record of the case

Background

The Office of Public Counsel for Victims filed a request for the Common Legal Representative to be allowed access to confidential material and to information related to the Accused’s challenge of jurisdiction.[20]

Reasoning

The Single Judge ordered the disclosure of the confidential document containing the charges as the Prosecution did not object and there did not appear to be any threat to victims or witnesses from this disclosure.[21] In regards to the confidential material in the challenge to jurisdiction, the Single Judge noted that the information currently available to the victims is sufficient for them to participate in that part of the proceeding.[22]

International Human Rights Law

ECtHR

Ressiot and Others v. France[23]

Chamber Judgment

Background

The case concerned investigations carried out at the premises of L’Equipe and Le Point newspapers and at the homes of journalists accused of breaching the confidentiality of a judicial investigation. The authorities wanted to identify the source of the leaks in an investigation into possible doping in cycle racing. Searches were carried out at the newspaper offices and the journalists’ homes: equipment was seized and lists of telephone calls were placed under seal. The five journalists were released for lack of evidence.

Reasoning

The Court found that the Government had not shown that a fair balance had been struck between the various interests involved. It reiterated that “the considerations to be taken into account by the Convention institutions for their review under paragraph 2 of Article 10 tip the balance of competing interests in favor of the interest of democratic society in securing a free press”. The measures taken were not reasonably proportionate to the legitimate aim pursued, having regard to the interest of a democratic society in ensuring and maintaining the freedom of the press.

ACtHPR

Femi Falana v. The African Union[24]

Judgment

Background

The case involves a complaint by a Nigerian attorney who has been trying to get Nigeria to file a declaration accepting the jurisdiction of the ACtHPR.[25] He filed the present application against the African Union claiming that the requirement that Nigeria file the additional application is inconsistent with the African Charter and violates his right to have access to the court.[26]

Reasoning

The Court, before reaching the merits, had to decide whether or not it had jurisdiction.[27] The governing law states that individuals may have access to the court when the State in question submits a declaration to that effect.[28] The fact that the AU is not a State does not automatically mean that no declaration is necessary to found jurisdiction.[29] The Court also decided that it was not the AU that adopted the Charter, but the heads of States of the various parties.[30] Just because the documents were adopted under the auspices of the AU does not mean that the AU is a party or that it adopted the documents and therefore it is not a party and cannot be sued under its provisions.[31] Additionally, as an international organization, the AU is not a corporate representation of the many member States but its own separate legal entity.[32]

In coming to this decision, the Court reiterated its position that it is the product of the Protocol and therefore bound by its terms.[33]


[1] IT-09-92-T, 26 June 2012.

[2] Ibid. at ¶ 1.

[3] Ibid. at ¶¶ 2-3.

[4] Ibid. at ¶ 5.

[5] Ibid. at ¶ 7.

[6] Ibid. at ¶ 10.

[7] Ibid. at ¶ 12.

[8] Ibid. at ¶ 13.

[9] IT-09-92-T, 27 June 2012.

[10] Ibid. at ¶¶ 2-3.

[11] Ibid. at ¶ 4.

[12] Ibid. at ¶ 14.

[13] Ibid. at ¶ 16.

[14] Ibid. at ¶ 17.

[15] IT-03-67-R77.4, 28 June 2012.

[16] The following informaiton is taken from the judgment summary.

[17] Case No. 002/19-09-2007/ECCC/TC, 29 June 2012.

[18] Ibid. at ¶ 1.

[19] ICC-02/11-01/11, 27 June 2012.

[20] Ibid. at ¶¶ 5, 8.

[21] Ibid. at ¶ 15.

[22] Ibid. at ¶ 22.

[23] Application no.15054/07, 28 June 2012. All text is taken from the press release.

[24] Application No. 01/2011.

[25] Ibid. at ¶ 2.

[26] Ibid. at ¶ 3.

[27] Ibid. at ¶ 56.

[28] Ibid. at ¶¶ 59-61.

[29] Ibid. at ¶ 63.

[30] Ibid. at ¶ 66.

[31] Ibid. at ¶ 67.

[32] Ibid. at ¶¶ 68, 70-72.

[33] Ibid. at ¶ 73.

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New Publicactions by Members of T{N}IL

A new issue of the New England Journal of International and Comparative Law is out (volument eighteen). This issue has an article by our own Joseph Davids on the evolution of crimes against humanity into something more akin to human rights crimes.

Also by Joseph is a contribution in the recently released vol. 28 of Kip & Sluiter’s Annotated Leading Cases of the International Criminal Tribunals dealing with the issue of the contempt jurisdiction of the International Criminal Tribunal for the Former Yugoslavia. More informaiton on this volume can be found here.

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Review of International Tribunal Decisions for the week of June 18, 2012

This week’s review has cases from the International Criminal Tribunal for the Former Yugoslavia (ICTY), the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia (ECCC), the International Criminal Court (ICC) and the European Court of Human Rights (ECtHR). The issues range from stand-by counsel, contempt to free elections.

International Criminal Law

ICTY

Prosecutor v. Karadžić[1]

Decision on Continuation of Standby Counsel Assignment

In April 2010 the Trial Chamber assigned stand-by counsel to the Accused so that should issues arise with the Accused’s self-representation, counsel could step in immediately to continue the trial.[2] With the closure of the Prosecution’s case, the Chamber asked the parties and counsel to weigh in on whether stand-by counsel should continue.[3] The Prosecution and counsel said yes, the Accused said no.[4] The Chamber found that the end of the Prosecution’s case did not eliminate any of the reasons for appointing stand-by counsel and so ordered that counsel’s appointment continue.[5]

SCSL

In re Eric Koi[6]

Judgment

Former RUF member Eric Koi Senessie was convicted late Thursday on eight of nine contempt of court charges alleging that he had attempted to induce five prosecution witnesses who testified in the Taylor trial to recant their testimony. Four of the counts alleged he had offered a bribe to a witness, and five of the counts alleged that he had attempted to influence a witness.

ECCC

Case 002[7]

Trial Chamber response to Co-Prosecutor’s Request for Leave to Provide Assurances with respect to Non-Prosecution for Witnesses (E200)

The Trial Chamber approved a request by the Co-Prosecutors to provide a form, through the Witness and Expert Support Unit, to assure witnesses that will testify that they will be not be prosecuted before the ECCC based on their testimony for crimes that would otherwise fall within the jurisdiction of the ECCC. However, the Chamber declined to authorize a similar assurance regarding prosecution before other courts in Cambodia as to do so would be inappropriate “inappropriate given the ECCC’s role and legal framework”.

ICC

Prosecutor v. Muthaura & Kenyatta[8]

Decision on the defence’s request for interim measures in relation to the prosecution’s contacts with potential defence witnesses

Background

On 12 June 2012, the defense for Mr. Muthaura submitted that the Proseuction was using an intermediary to contact a defense witness and requested that the Chamber issue protective measures to prevent such contact.[9] The motion was joined by the Kenyatta defense.[10] The defense also asked for interim measures pending an adption of a protocol to govern contacts with witnesses. The Chamber rejected the defense motion.

Reasoning

To decide on interim measures, the Chamber noted that it had to decide whether or not allowing the Prosecution from contacting witnesses “will create an irreversible situation that could not be corrected, or otherwise cause irreparable prejudice to the defence and/or to the person who may be contacted by the prosecution.”[11] The Muthaura defense alleged that the contacts had placed defense witnesses in danger, however the Chamber did not find the submissions credible in that respect.[12] The motion was therefore denied.

International Human Rights Law

ECtHR

Kurier Zeitungsverlag und Druckerei GmbH (no. 2) v. Austria

and Krone Verlag GmbH v. Austria[13]

Chamber Judgment

Background

In January and February 2004, both newspapers published a number of articles about the dispute between a couple over custody of one of their sons. The courts had dismissed the request of the father, who was living with the child at the time, for custody to be transferred to him, and he had refused to comply with that decision. On 26 January 2004, after various attempts at enforcement had been unsuccessful because the father had gone into hiding with the child, court officers went to his house and tried to seize the child, who cried and resisted. Those scenes were the subject of wide media coverage, notably by Kronen Zeitung and Kurier. The articles published by the two newspapers revealed the child’s identity, gave details of his family life and were accompanied by photographs showing him in a state of pain and despair. The child and mother brought a case against the applicants claiming damages from the revelation of private details. The national courts agreed and awarded damages. The ECtHR found no violation of the European Convention in the granting of damages.

Reasoning

It was common ground between the parties in both cases that the judgments ordering the two publishing companies to pay compensation had interfered with their right to freedom of expression. The Court considered, and that was acknowledged by the parties, that the interference was prescribed by law. Furthermore, it was not disputed that it had served a legitimate aim, namely “the protection of the reputation or rights of others” for the purpose of Article 10. As regards the question whether the interference had been “necessary in a democratic society”, the Court first noted that the child who had been the subject of the articles in question was not a public figure, nor had he entered the public scene by becoming the victim of a custody dispute between his parents which had attracted considerable public attention. The articles had dealt with a matter of public concern, giving rise to a public debate, namely the appropriate enforcement of custody decisions and whether and to what extent force might or should be used in this context. However, given that neither the child nor his parents were public figures or had previously entered the public sphere, the Court did not find that it had been essential for understanding the case to disclose his identity, reveal most intimate details of his life or to publish a picture from which he could be recognized. In sum, the Court found that the Austrian courts had acted within their margin of appreciation in assessing the need to protect the child’s privacy and awarding compensation. There had accordingly been no violation of Article 10.

Communist Party of Russia and Others v. Russia[14]

Chamber Judgment

Background

The case concerned the complaints by Russian political opposition parties and politicians that the 2003 parliamentary elections had not been free as a result of unequal media coverage of the electoral campaign by the five major TV companies.

Reasoning

The Court found that laws and procedures existing at the relevant time guaranteed the opposition minimum access to TV as well as well as provided for the neutrality of the State-controlled media. While equality in TV coverage had not in reality been achieved during the 2003 elections, that had not been sufficient to find that the elections were not “free” within the meaning of the Convention.

E.S. v. Sweden[15]

Chamber Judgment

Background

The case concerned a complaint that the Swedish legal system, which does not prohibit filming without someone’s consent, had not provided the applicant any protection against her stepfather’s violation of her personal integrity by attempting to secretly film her naked when she was 14 years old. The court found no violation.

Reasoning

The Court found that, at least in theory, the applicant’s stepfather could have been convicted under the Penal Code either for child molestation or for attempted child pornography. In addition, Sweden had adopted a proposal criminalising certain aspects of illicit filming. Therefore, the Swedish system was not deficient to an extent of being incompatible with the Convention requirements.


[1] IT-95-5/18-T, 21 June 2012.

[2] Ibid. at p. 2.

[3] Ibid.

[4] Ibid.

[5] Ibid. at p. 2.

[6] All information is taken from the press release.

[7] Trial Chamber Memorandum, 19 June 2012.

[8] ICC-01/09-02/11, 20 June 2012.

[9] Ibid. at ¶ 2.

[10] Ibid. at ¶ 4.

[11] Ibid. at ¶ 7.

[12] Ibid. at ¶¶ 8, 10.

[13] Application nos. 1593/06 and . 27306/07 respectively. All information is taken from the press release.

[14] Application no. 29400/05. All information is taken from the press release.

[15] Application no. 5786/08. All information is taken from the press release.

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India v. Italy Part Four: Functional Immunity

The Enrica Lexie

Over the past few months I have written several blogs discussing the Enrica Lexie controversy between India and Italy relating to the shooting of two Indian fishermen by two Italian military guards. The first post discussed the principles of jurisdiction and whether or not it would be proper for India to prosecute the Italian marines for murder. The second post discussed the possible international fora where the dispute between India and Italy could be decided. The third post raised the issue of possible functional immunity for the Italian marines from Indian jurisdiction. This post will further discuss the notion of functional immunity in the absence of a Status of Forces of similar agreement.[1]

The idea of functional immunity is that it protects State agents from the jurisdiction of other States “for official acts done while in office.”[2] Functional immunity for members of the military has roots in the diplomatic discourse of the nineteenth century. An early documented instance of a claim of functional immunity came in the case of a criminal charge against one MacLeod in 1841.[3] Mr. MacLeod, a member of the British armed forces, allegedly attacked a ship moored in New York State while under orders from his government to do so. Much later, he was arrested while visiting the United States on unrelated business and put on trial in New York for a murder resulting from the destruction of the ship. The British government objected claiming that the attack was an official act and therefore any responsibility born by Mr. MacLeod should be transferred to the United Kingdom resulting in his release from custody and trial. The British and American governments essentially agreed,

[t]hat an individual, forming part of a public force, and acting under the authority of his government, is not to be held answerable as a private trespasser or malefactor, is a principle of public law sanctioned by the usages of all civilized nations, and which the Government of the United States has no inclination to dispute.[4]

Nevertheless, Mr. MacLeod was tried in New York State on the allegations of murder.[5] While the executive branch of the United States Federal Government seems to have conceded that MacLeod should have benefited from functional immunity, this was not a universal sentiment in the federal government at the time. In response to this controversy US Senator Calhoun stated on the Senate floor,

[n]ow, there can be no doubt that the analogous rule, when applied to individuals, is, (that both principal and agents, or, if you will, instruments, are responsible in criminal cases; directly the reverse of the rule on which the demand for the release of McLeod is made.   […] Suppose, then, that the British, or any other government, in contemplation of war, should send out emissaries to blow up the fortifications erected, at such vast expense, for the defense of our great commercial marts,  […] would the production of the most authentic papers, signed by all the authorities of the British Government, make it a public transaction, and exempt the villains from all responsibility to our laws and tribunals? Or would that Government dare make a demand for their immediate release? Or, if made, would ours dare yield to it, and release them?[6]

Senator Jonhn C. Calhoun

This statement by Senator Calhoun should make it clear that, in conjunction with the actual trial of Mr. MacLeod, the principle of functional immunity for military orders was not so firmly established in 1841. However, it is true that statements of the federal executive, as responsible for foreign relations, bear more weight on the issue than those of one senator and the authorities of New York State. Even if this case were not somewhat equivocal about functional immunity for official acts by members of the military, subsequent practice seems to indicate such immunity no longer exists.

A more recent controversy involving the assertion of functional immunity for State agents was the Rainbow Warrior Affair in the 1980’s. This incident involved French agents who were sent to New Zealand to destroy a Greenpeace vessel, the Rainbow Warrior, being used to protest French undersea nuclear tests. After destroying the ship, the agents were arrested and charged with the murder of a journalist who died on board. The dispute over the incident between France and New Zealand was submitted to the UN Secretary-General for arbitration. One of the issues that arose in the case dealt with France’s claim that her agents should be released from custody as they benefited from functional immunity.[7] New Zealand objected to this and argued,

military personnel acting under official orders are [not] exempt from personal responsibility for criminal acts. “Superior orders” is not a defence (sic) in New Zealand law, nor is it a defence (sic) in the legal systems of most countries. It is certainly not a defence (sic) in international law, as was clearly established in the judgements (sic) of the Nuremberg Tribunal and the post-Nuremberg war crimes trials.[8]

Unfortunately, the issue of functional immunity was not settled or directly addressed by the arbitration decision. The important point here is that the existence of the immunity, theoretically recognized (if not ignored) in MacLeod, was denied by one of the parties to the dispute in categorical terms. The past “usages of all civilized nations” to afford immunity to official acts of this type appears to have eroded in the intervening 140 years. Not the least of all due to developments after World War II.

There is at least one important distinction between the MacLeod case and the Rainbow Warrior Affair: the accused in MacLeod was a uniformed military officer at the time his alleged crime was committed while the French agents were covert operatives. One could argue that openly carrying out military orders is different in type than covert action. While this is an interesting point, modern practice does not seem to support such a distinction. One current example is the up coming criminal case against Israeli military officers in Turkey.

The MV Mavi Marmara

The case relates to the Mavi Marmara Incident which occurred in 2010 when a flotilla of ships departed from Turkey en route to the Gaza Strip in an attempt to break the ongoing Israeli blockade. The flotilla was intercepted by Israeli military forces. When the flotilla refused to turn around, Israeli forces boarded some of the ships, in particular the Mavi Marmara, leading to the deaths of nine activists. The use of force during that interception was later found to be “excessive and unreasonable” by a UN panel of experts.[9] Turkey recently brought charges against four senior Israeli military commanders for their parts in the killing of the activists. These commanders were implementing official military orders in carrying out the raid on the Gaza bound flotilla. Turkey obviously does not feel that these commanders are entitled to MacLeod style functional immunity for their alleged crimes.[10] This case is just beginning and to my knowledge no judicial decisions have yet been issued. The very fact that Turkey is willing to bring the charges is indicative of the status of functional immunity for uniformed military personnel who commit crimes in the course of carrying out their duties.

These cases from the last 180 years demonstrate that the basis for asserting a general rule of international law establishing functional immunity for uniformed military personnel is shaky at best. One of the earliest cases, while asserting the rule, did not provide an example of its implementation. By the 1980’s, and after the developments of the Second World War, it could be openly asserted that functional immunity for official acts that amount to crimes did not exist. Current practice, right up to last month, appears to be following the course laid out by modern practice and not the anachronistic rule agreed to by the British and American governments in the 1840’s.

Modern rejection of a general norm providing functional immunity for military personnel carrying out their official duties will have serious consequences in the dispute between India and Italy. It essentially means that Italy’s claim to exclusive jurisdiction over the marine guards is incorrect. India has jurisdiction to try the guards because the committed crimes within India’s jurisdiction as understood by international law.[11]This is a desirable rule. As noted long ago by Senator Calhoun, to do otherwise would produce absurd results.


[1] Status of forces agreements or SOFA’s generally provide that the armed forces of one country, while finding themselves within the jurisdiction of another, will only be subject to the jurisdiction of their home State. There is of course no requirement that SOFA’s provide for exclusive jurisdiction.

[2] Malcolm N. Shaw, International Law (6th ed) p. 738 (2008).

[3] Moore, A digest of international law as embodied in diplomatic discussions, treaties and other international agreements, vol. 2, at § 217 (1906).

[4] Ibid. Statement of US Secretary of State Webster.

[5] He was acquitted for want of evidence.

[6] Sen. Calhoun in response to the MacLeod case, US Senate 1841 documented in Moore.

[7] Memorandum of the Government of the French Republic to the Secretary-General of the United Nations regarding the Rainbow Warrior Affair (1986).

[8] Memorandum of the Government of New Zealand to the Secretary-General of the United Nations regarding the Rainbow Warrior Affair (1986).

[9] Turkey charges senior Israeli commanders in Mavi Marmara case, PanARMENIAN.Net (29 May 2012)

[10] It is worth noting that there may be other arguments to void Turkish jurisdiction in this case such as the location of the raid. This is something that might be worth exploring at a later date.

[11] This was the subject of my first post on the Enrica Lexie incident.

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Review of International Tribunal Decisions for the week of June 11, 2012

The week’s review has decisions from the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Court (ICC) and the European Court of Human Rights (ECtHR). The decisions deal with issues ranging from discovery orders to restitution for improper conviction.

International Criminal Law

ICTY

Prosecutor v. Stanišić & Simatović[1]

Decision on Prosecution Motion to Compel Disclosure of Notes and Photographs from Examination of Mladić Notebooks

Background

A defense expert examined the Mladić notebooks at which time he took images and made notes about their contents for the purposes of drafting his expert report.[2] The Prosecution filed a motion to have those notes disclosed as they should have been part of the report, to make sure all relevant information is before the Chamber and so that the Prosecution will have a complete record vis-à-vis the notebooks.[3] The Chamber denied the motion.

Reasoning

The Chamber found that as a general matter, the notes were not subject to disclosure, as they did not form part of the expert report, but were merely materials created to allow the preparation of said report.[4] The Chamber found that the notes were not necessary for the evaluation of the expert report as there was adequate cross-examination on the subject at trial.[5] The argument that the notes would be useful to create a complete record or be useful in other trials was found to be irrelevant for this trial and so outside the scope of disclosure.[6]

ICC

Prosecutor v. Lubanga[7]

Order on the defence request to present evidence during the sentencing hearing

Background

The Accused requested permission to call two witnesses during the sentencing hearing and to introduce documents as to their identity as well as a letter from the Accused detailing his detention in the DRC before being transferred to the Court.[8] The Prosecution did not oppose the witnesses but contested the relevancy of the letter from the Accused.[9] The Victims contested the hearing of witnesses and requested the ability to cross-examine them if they testify.[10] The Chamber granted the Accused’s requests.

Reasoning

The Chamber found the proposed testimony of the witnesses to be prima facie relevant and their supporting documents to be so as well and so granted permission for their admission.[11] The Chamber held that the letter from the Accused was also potentially relevant to the amount of credit, if any, the Accused is entitled to for prior detention.[12] The Chamber did not directly address the Victims’ requests.

Prosecutor v. Gbagbo[13]

Decision on the “Requête de la Défense en report de l’audience de confirmation des charges prévue le 18 juin 2012”

Background

The Accused filed a motion to delay the confirmation of charges hearing based on his alleged medical condition and an inadequate amount of time to prepare.[14] The Single Judge partially granted the motion.

Reasoning

The Single Judge found, based on the evidence (redacted from the decision) that the Accused’s medical condition was not such as to prevent him from participating in the confirmation of charges hearing.[15] However, the Judge also found that for “a variety of reasons, including a need to receive supplementary information from the Defence, the Registry was not in a position to grant the additional means until more than a month after the filing of such request and only seven working days before the scheduled start of the confirmation hearing. This appears to have left barely any time for the Defence to apply effectively these additional means for its preparation for the confirmation hearing scheduled to start on 18 June 2012. Accordingly, the Single Judge considers that in order to safeguard the rights of the Defence, it is necessary to postpone the confirmation hearing to a date which will take into account the delay in allocating the funds to the Defence.”[16]

International Human Rights Law

ECtHR

Poghosyan and Baghdasaryan v. Armenia[17]

Chamber Judgment

Background

The case concerned the dismissal of the applicant’s compensation claim after his conviction for murder and rape had been quashed and he had spent 5 years and 6 months in prison.

Reasoning

This was the first judgment in which the Court examined a complaint under Article 3 of Protocol No. 7 on the merits and concluded that there had been a violation. The Court found in particular that compensation was due even where the domestic law or practice did not provide for such compensation, and that the purpose of Article 3 of Protocol No. 7 was not merely to recover any pecuniary loss caused by wrongful conviction but also to provide a person convicted as a result of a miscarriage of justice with compensation for any non-pecuniary damage such as distress, anxiety, inconvenience and loss of enjoyment of life.


[1] IT-03-69-T, 12 June 2012.

[2] Ibid. at ¶ 1.

[3] Ibid. at ¶ 2.

[4] Ibid. at ¶ 9.

[5] Ibid. at ¶ 11.

[6] Ibid. at ¶ 12.

[7] ICC-‘1/04-01/06, 11 June 2012.

[8] Ibid. at ¶¶ 6, 10-14.

[9] Ibid. at ¶¶ 15-16.

[10] Ibid. at ¶¶ 17-18.

[11] Ibid. at ¶¶ 19-22.

[12] Ibid. at ¶ 23.

[13] ICC-02/11-02/11, 12 June 2012.

[14] Ibid. at ¶¶ 4, 9-10, 15.

[15] Ibid. at ¶ 36.

[16] Ibid. at ¶ 40.

[17] Application no. 22999/06, 12 June 2012. All information is taken from the press release.

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Review of International Tribunal Decisions for the week of May 28, 2012

This week’s review has decision from the International Criminal Tribunal for the Former Yugoslavia (ICTY), Extraordinary Chambers in the Courts of Cambodia (ECCC) and the International Criminal Court (ICC) dealing with judicial notice, reclassification of transcripts, amicus curiae and judicial disqualification.

International Criminal Law

ICTY

Prosecutor v. Mladić[1]

Decision on Proprio Motu Taking of Judicial Notice of Two Adjudicated Facts

Background

The Chamber informed the parties that it was considering taking judicial notice of two facts from the Krstić case and requested the parties’ views receiving the prosecution’s views on time and the defense submission out of time.[2] The Chamber took judicial notice of the facts.

Reasoning

The Chamber noted that the defense filed its submission late and did not ask for an extension of time or justify its late filing leading the Chamber to disregard the filing in its entirety.[3] On the merits of the issue, the Chamber decided that the facts in question sufficiently satisfied the legal standard and took judicial notice of them with slight modification.[4]

ICC

Prosecutor v. Bemba[5]

Second Order on the reclassification of transcripts

The Trial Chamber issued an order setting out the procedures for the parties and victims to request redactions and changes and instructed the Registry to make finalized versions of the transcripts available as soon as possible.

Prosecutor v. Gaddafi & Al-Senussi[6]

Decision on the “Request related to the filing of observations by the Amicus Curiae

Background

The Chamber previously granted leave to two amicus to file briefs under Rule 103 on three issues related to the status of the judiciary and legal frame work in Libya in relation to that State’s pending admissibility challenge before the Court.[7] The Office of Public Counsel for Victims filed a motion requesting leave to reply to the amicus’ submission.[8] The Chamber granted the request.

Reasoning

The Chamber found that given the discretionary nature of Rule 103 amicus filings, the Chamber also has discretion to grant participants leave to reply to such filings.[9] Then having “reviewed the Request, and considering the issues for which leave to submit amicus curiae observations has been granted to Lawyers for Justice in Libya and the Redress Trust, the Chamber is of the view that it is appropriate in the present circumstances to accord the OPCV the opportunity to submit a response to the amicus curiae observations.[10]

ECCC

Case 002[11]

Decision on IENG Sary’s Application for Disqualification of Judge Cartwright

Background

The Ieng Sary defence filed a motion for the disqualification of Judge Cartwright or alternatively to order the judge and the prosecutor to copy a defence team member on all communications and to disclose all ECCC related communications to this point.[12] After the Trial Chamber denied a similar request by the Nuon Chea defence, an email from the judge to the prosecutor was mistakenly sent to a wide number of people, the email read,

O f course I was only trying to see the lighter side.

As you know Andrew, I am seriously considering my own position. I shall not make a hasty ydecision [sic]

Silvia

The judge’s staff replied to inquiries saying that the email was part of a brief discussion related to management issues and that it referred to the prior denial of the motion for the judge’s recusal.[13] The Chamber denied the motion.

Reasoning

The Chamber found that, based on previous case law, the existence of managerial meetings did not in and of itself create an appearance of impropriety and that the meetings have in any case been discontinued.[14] The Chamber also rejected any argument that the defence and prosecution are being treated differently by the judge.[15] Therefore no basis existed to disqualify Judge Cartwright. The Chamber then found that the internal rules did not provide for the alternative relief sought and therefore the Chamber had no authority to order the requested relief.[16]


[1] IT-99-92-T, 5 June 2012.

[2] Ibid. at ¶¶ 1-2.

[3] Ibid. at ¶ 5.

[4] Ibid. at ¶ 6.

[5] ICC-01/05-01/08, 4 June 2012.

[6] ICC-01/11-01/11, 4 June 2012.

[7] Ibid. at ¶¶ 1-3.

[8] Ibid. at ¶ 4.

[9] Ibid at ¶ 5.

[10] Ibid. at ¶ 6.

[11] Case File No. 002/19-09-2007/ECCC/TC, 4 June 2012.

[12] Ibid. at ¶ 1.

[13] Ibid. at ¶ 4.

[14] Ibid. at ¶ 17.

[15] Ibid. at ¶ 18.

[16] Ibid. at ¶ 20.

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Review of International Tribunal Decisions for the week of May 28, 2012

This week’s review has cases from the International Criminal Tribunal for the Former Yugoslavia (ICTY), the Extraordinary Chambers in the Courts of Cambodia (ECCC), and the International Criminal Court (ICC. It has been a bad week for the Prosecution at the ICC as the Court denied an arrest warrant and granted the suspension of the order to Libya to surrender Saif Al-Islam.

International Criminal Law

ICTY

Prosecutor v. Karadžić[1]

Decision on Request for Authorisation to Disclose Colonel Rutten’s Notes in Related Cases

Background

The Prosecution filed a motion for authorization to disclose a witness’ notes that were ordered to not be distributed “any further than strictly required by the case”.[2] The Chamber granted the request.

Reasoning

The Chamber granted the request as the notes are relevant to the indictments in Mladić, Tolimir and Popović.[3]

ICC

Prosecutor v. Lubanga[4]

Order on the defence request for an extension of time

Background

The Chamber had previously set the deadline for filing submissions on sentencing for 28 May 2012.[5] The Accused filed a motion for an eleven-day extension on 25 May 2012 because, inter alia, a delay in the allocation of resources by the Registry delayed investigatory measures.[6] The Chamber partially granted the motion.

Reasoning

The Chamber considered that an extension in time was appropriate given the delay in the allocation of resources, however, that a seven-day extension would be “sufficient to complete any necessary additional work”.[7]

Prosecutor v. Mbarushimana[8]

Judgment on appeal of the Prosecutor against the decision of Pre-Trial Chamber I of 16 December 2011 entitled “Decision on the confirmation of charges”

Background

Pre-Trial Chamber I of the ICC declined to confirm the charges against Mr. Mbarushimana on 16 December 2011.[9] The Prosecutor appealed questioning whether (1) it was correct for the Pre-Trial Chamber to resolving issues with the evidence against the Prosecution and (2) whether the Pre-Trial Chamber properly engaged in evaluation of witness and evidentiary credibility based on written statements thereby depriving the Court of the opportunity to hear their testimony at trial.[10] He also argued that the Pre-Trial Chamber misinterpreted Article 25(3)(d).[11] The Appeals Chamber denied the appeal.

Reasoning

First, as a preliminary matter, the Appeals Chamber noted that the victims’ counsel filed an oversized brief and did not, even in the oversized brief, request permission to exceed the word limit.[12] The Chamber therefore rejected in its entirety.[13]

The Appeals Chamber held that Article 61 of the Rome Statute provides for an “evidentiary hearing” on the confirmation of charges that requires the Pre-Trial Chamber to evaluate “whether the evidence is sufficient to establish substantial grounds to believe the person committed each of the crimes charged.”[14] The Pre-Trial Chamber must be able to evaluate the evidence in order to give flesh to the accused’s right to challenge the evidence.[15] The Rules of Procedure and Evidence also provide for such authority on the part of the Chamber.[16] This ability to weigh the evidence is supported by comparing the procedures at the ICC to the ad hoc tribunals in that before the ICC the proceedings are not ex parte and the accused can respond to the Prosecution’s case.[17]

On the interpretation of Article 25(3)(d), the Prosecution argued that the Pre-Trial chamber required too much of a contribution to be held responsible for individual crimes.[18] The Appeals Chamber did not reach the merits of the appeals as the Pre-Trial Chamber had failed to find that the underlying crimes had been committed according to an organization plan or policy and so the issue of individual responsibility was moot as even if the issue were resolved in the Prosecution’s favour the charges would still not be confirmed.[19]

Judge Gurmendi attached an opinion where she analysed the basis of the Pre-Trial Chamber’s contribution requirement and found that it was not based on the statute, and would have found there to be a lesser contribution requirement.[20]

Situation in the Democratic Republic of the Congo[21]

Decision on the Prosecutor’s Application under Article 58

Background

On 15 May 2012, the Prosecutor filed a motion requesting the Pre-Trial Chamber find that there are reasonable grounds to believe that Sylvestre Mudacumura is criminally responsible for crimes committed by the FDLR in North and South Kivu Provinces of the DRC as either a direct perpetrator under Article 25(3)(a) or alternatively under Articles 25(3)(d) or 28(a) of the Rome Statute.[22] The Chamber denied the motion.

Reasoning

The Chamber noted that the request for an arrest warrant must contain “specific reference to the crimes within the jurisdiction of the Court and a concise statement of the facts which are alleged to constitute those crimes” (internal citations omitted).[23] The Chamber noted further “although […] the Application lists all of the crimes alleged to have been committed by Mr. Mudacumura, no proper counts or any other kind of accompanying description of the specific facts underlying those crimes, as required by article 58(2) of the Statute, are provided in that paragraph. Although several criminal acts allegedly committed in various places in the Kivu provinces of the DRC are described in different paragraphs of the Application, the Prosecutor has not precisely identified the spatial parameters of each of those alleged crimes.”[24] The Chamber therefore found the application to lack the required specificity and denied the request for an arrest warrant.[25]

Prosecutor v. Gaddafi & Al-Senussi[26]

Decision on the postponement of the execution of the request for surrender of Saif Al-Islam Gaddafi pursuant to article 95 of the Rome Statute

Background

After a previous denial of a suspension request over the surrender of Mr. Gaddafi due to the lack of a pending admissibility challenge, Libya filled its challenge to admissibility and filed a second request to postpone the surrender or Mr. Gaddafi.[27] The Chamber granted the postponement request.

Reasoning

The Chamber identified two issues that needed to be decided in the request: (1) whether article 95 of the Rome Statute governing delay of surrender applies in cases of United Nations Security Council referrals and (2) whether a request for arrest and surrender falls within the scope of article 95.[28] The Chamber noted that it has repeatedly held that the Security Council referral includes that application of Part IX of the Statute and the application of the applicable law of the ICC to resolve disputes related to any cases that arise.[29] Therefore the Chamber found that Part IX, including article 95, applies to the present request.[30]

The Chamber then had to resolve whether the request for arrest and surrender fell within the ambit of article 95.[31] The Chamber found that,

the Court must fulfil (sic) its mandate in accordance with its legal framework and that the complementarity principle is a central aspect thereof and a key feature of the institution. The suspension of the investigation and the corresponding postponement of the cooperation requests is one major consequence of this principle. It would be untenable for the Court to insist on compliance with a request for arrest and surrender, even at the risk of hampering the national proceedings, while its own investigation is suspended.[32]

The Chamber therefore found that article 95 is applicable to the present request and that it is for the Chamber to decide the issue as it was the Chamber that issued the warrant for arrest and request for surrender.[33] The Chamber found that Libya had filed an admissibility challenge and therefore the temporary suspension of the surrender order is appropriate until that challenge is ruled upon.[34]

ECCC

Case 002[35]

Memo: Directions regarding documents sought for impeachment purposes

The defence signalled their intention to use documents that were not currently before the Chamber or in evidence during the cross-examination of witnesses to impeach their credibility. The Trial Chamber issued a memo in response effectively stating that no documents could be used during the hearings that were not in the case file or otherwise before the Chamber effectively limiting the ability of the defence to impeach prosecution witnesses.


[1] IT-95-5/18-T, 29 May 2012.

[2] Ibid. at p. 1.

[3] Ibid. at p. 2.

[4] ICC-01/04-01/06, 28 May 2012.

[5] Ibid. at ¶ 1.

[6] Ibid. at ¶ 2.

[7] Ibid. at ¶¶ 7-8.

[8] ICC-01/04-01/10 OA 4, 30 May 2012.

[9] Ibid. at ¶ 3.

[10] Ibid. at ¶ 16.

[11] Ibid. at ¶ 50.

[12] Ibid. at ¶ 13.

[13] Ibid. at ¶ 14.

[14] Ibid. at ¶ 39.

[15] Ibid. at ¶ 40.

[16] Ibid. at ¶ 41.

[17] Ibid. at ¶¶ 43-44.

[18] Ibid. at ¶¶ 51-54.

[19] Ibid at ¶¶ 65-66, 68.

[20] Separate Opinion of Judge Silvia Fernandez de Gurmendi.

[21] ICC-01/04, 31 May 2012.

[22] Ibid. at ¶ 2.

[23] Ibid. at ¶ 4.

[24] Ibid. at ¶ 6.

[25] Ibid. at ¶¶ 7-8.

[26] ICC-01/11-01/11, 1 June 2012.

[27] Ibid. at ¶¶ 6-7, 11.

[28] Ibid. at ¶ 24.

[29] Ibid. at ¶¶ 27-28.

[30] Ibid. at ¶ 30.

[31] Ibid at ¶¶ 31-32.

[32] Ibid. at ¶ 36.

[33] Ibid. at ¶ 37.

[34] Ibid. at ¶¶ 38-40.

[35] Memo dated 24 May 2012.

 

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