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.
Prosecutor v. Karadžić
Decision on Request for Authorisation to Disclose Colonel Rutten’s Notes in Related Cases
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”. The Chamber granted the request.
The Chamber granted the request as the notes are relevant to the indictments in Mladić, Tolimir and Popović.
Prosecutor v. Lubanga
Order on the defence request for an extension of time
The Chamber had previously set the deadline for filing submissions on sentencing for 28 May 2012. 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. The Chamber partially granted the motion.
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”.
Prosecutor v. Mbarushimana
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”
Pre-Trial Chamber I of the ICC declined to confirm the charges against Mr. Mbarushimana on 16 December 2011. 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. He also argued that the Pre-Trial Chamber misinterpreted Article 25(3)(d). The Appeals Chamber denied the appeal.
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. The Chamber therefore rejected in its entirety.
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.” 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. The Rules of Procedure and Evidence also provide for such authority on the part of the Chamber. 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.
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. 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.
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.
Situation in the Democratic Republic of the Congo
Decision on the Prosecutor’s Application under Article 58
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. The Chamber denied the motion.
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). 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.” The Chamber therefore found the application to lack the required specificity and denied the request for an arrest warrant.
Prosecutor v. Gaddafi & Al-Senussi
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
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. The Chamber granted the postponement request.
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. 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. Therefore the Chamber found that Part IX, including article 95, applies to the present request.
The Chamber then had to resolve whether the request for arrest and surrender fell within the ambit of article 95. 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.
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. 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.
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.
 IT-95-5/18-T, 29 May 2012.
 Ibid. at p. 1.
 Ibid. at p. 2.
 ICC-01/04-01/06, 28 May 2012.
 Ibid. at ¶ 1.
 Ibid. at ¶ 2.
 Ibid. at ¶¶ 7-8.
 ICC-01/04-01/10 OA 4, 30 May 2012.
 Ibid. at ¶ 3.
 Ibid. at ¶ 16.
 Ibid. at ¶ 50.
 Ibid. at ¶ 13.
 Ibid. at ¶ 14.
 Ibid. at ¶ 39.
 Ibid. at ¶ 40.
 Ibid. at ¶ 41.
 Ibid. at ¶¶ 43-44.
 Ibid. at ¶¶ 51-54.
 Ibid at ¶¶ 65-66, 68.
 Separate Opinion of Judge Silvia Fernandez de Gurmendi.
 ICC-01/04, 31 May 2012.
 Ibid. at ¶ 2.
 Ibid. at ¶ 4.
 Ibid. at ¶ 6.
 Ibid. at ¶¶ 7-8.
 ICC-01/11-01/11, 1 June 2012.
 Ibid. at ¶¶ 6-7, 11.
 Ibid. at ¶ 24.
 Ibid. at ¶¶ 27-28.
 Ibid. at ¶ 30.
 Ibid at ¶¶ 31-32.
 Ibid. at ¶ 36.
 Ibid. at ¶ 37.
 Ibid. at ¶¶ 38-40.
 Memo dated 24 May 2012.