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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