This week has decisions and judgments from the International Court of Justice (ICJ), International Criminal Tribunal for the Former Yugoslavia (ICTY), Extraordinary Chambers in the Courts of Cambodia (ECCC), International Criminal Court (ICC) and The European Court of Human Rights (ECtHR). The subjects range from the principle of extradite or prosecute, to protective measures, appointment of independent counsel, replacing of judges, disclosure and child care.
Questions Relating to the Obligation to Prosecute or Extradite
(Belgium v. Senegal)
Former President of Chad Hissène Habré, who has been in exile in Senegal after leaving power, is accused of torture and crimes against humanity by former victims of his 8-year rule. Belgium complained that Senegal was in violation of its legal duties under customary law and the UN torture convention for failing either to extradite or prosecute Mr. Habré, especially after their request that they do so. The Court partially agreed.
The Court, among the many issues it addressed, noted that Belgium alleged violations both of the UN torture convention and customary international law, the first regarding only allegations of torture and the other allegations of crimes against humanity as well as other crimes. These issues being distinct, their propriety before the Court had to be determined individually. The Court found that Belgium’s claim of violations of customary international law would have been premature at the time the application was filed and so were excluded from the present proceedings and so only the issue of the UN torture convention would be addressed.
The Court found that while the obligation to extradite or prosecute in the UN torture convention does not contain a timeframe for implementation, that obligation must be complied with in a reasonable time. The Court found Senegal in violation of its obligation to do so since after Belgium asked for his extradition, neither a prosecution nor extradition took place.
Prosecutor v. Dragomir Milošević
Decision on Motion Seeking Variation of Protective Measures Pursuant to Rule 75(G)
The Applicant is an attorney assigned to Mr. Milošević for the purposes of investigating the possibility of filing an applicant for review of his client’s conviction based on the potential existence of a “new fact”. The Registry informed the Chamber that while it did not appose the motion, that there should be no misunderstanding of the limited scope of counsel’s appointment and that he should not have access to the information as of right. The Prosecution did not oppose the motion. The Chamber granted the motion.
The Chamber considered that the Applicant had standing to file the motion as his activity and capacity are akin to that of counsel appointed to an accused. The Chamber held that the Applicant demonstrated a legitimate forensic purpose for his request and so should be granted access to confidential inter partes filings and evidence.
Prosecutor v. Popović et. al.
Decision on Prosecution Motion for the Appointment of Independent Counsel to Review Material Potentially Subject to Lawyer-Client Privilege
The Prosecution received material form the Serbian government, some of which appeared to have originated with the defense teams of the Popović et. al. case. The Prosecution filed a request to have an independent counsel appointed to review the material so as to protect any potential lawyer client privilege and to allow the Prosecution to respect its disclosure obligations. The Chamber granted the motion to the extent that it sent a request to the Presidency of the Tribunal to have a Judge appointed to review the material in camera and take appropriate actions in this matter.
Prosecutor v. Stanišić & Simatović
Decision Concerning the Testimony of Witness CW-1
The Chamber reconsidered its decision to call witness CW-1 due to his anticipated intention to invoke his right against self-incrimination and the significant difficulties in arranging for his testimony. As his testimony was not indispensible for the trial, the Chamber decided that calling him would result in unnecessary delay and therefore not be in the interests of justice.
Prosecutor v. Karadžić
Decision on Accused’s Application for Certification to Appeal Denial of Motion for Judgement of Acquittal Under Rule 98 Bis (Count 11)
The Accused file a motion to appeal the denial of his motion for a judgment of acquittal for taking UN peacekeepers hostage on raising the legal issue of whether their participation in the conflict would deprive them of the status of protected persons for the purposes of international humanitarian law. The Chamber agreed that the issue would affect the expeditiousness of the trial and the Appeals Chamber’s resolution would be in the interests of judicial economy.
Prosecutor v. Hadžić
Preliminary Order on Prosecution Motion for Judicial Notice of Adjudicated Facts and Documents
The Pre-Trial Judge ordered the Prosecution to re-file its motion for judicial notice because it did not comply with a previous guidance on the required format for such a motion.
Case No. 002
President’s Order on Replacement of Judge
The President of the Supreme Court Chamber appointed the Reserve Judge Florence N. Mumba to sit in the place of Judge Motoo Noguchi, who resigned, pending the appointment of a permanent judge to the Supreme Court Chamber bench in order to assure that cases are heard in a timely manner.
Prosecutor v. Gaddafi & Al-Senussi
Decision on the OPCD “Request Pursuant to Regulation 23bis of the Regulations”
The OPCD, which is currently representing Mr. Gaddafi, filed its response to Libya’s admissibility challenge wherein it included information that it requested be subject to delayed disclosure and some information that it requested never be disclosed to the public or the other parties to the challenge. The Chamber partially granted the request.
The Chamber found that “the extent of permanent redactions sought by the OPCD defeats the purpose of a response to an admissibility challenge. Indeed, it is the understanding of the Chamber that it may base its decision on the admissibility of the case exclusively on information which is accessible to the other parties to the admissibility proceedings. Accordingly, the OPCD may not rely on submissions and material which are not duly communicated to the other parties.” Accordingly the Chamber ordered the OPCD to re-file its response to the admissibility challenge in a form that can be disclosed to the other parties to the challenge and noted, “for the purposes of its decision on the admissibility of the case it will disregard the Response as filed, and will only take into account the response as re-submitted by the OPCD pursuant to the present decision.”
M.D. and Others v. Malta
The case concerned the inability of a mother and her children to challenge a care order and the subsequent automatic and permanent removal of the mother’s parental rights following her criminal conviction for neglect of her children, and the impossibility for her to challenge that measure before a tribunal. The Court found a violation of Article 6 § 1 (right to a fair trial – access to a court) and Article 8 (protection of family life) of the European Convention on Human Rights.
The Court found that the Article 6 rights of the mother and children were breached because they could not challenge the care order, even if the circumstances changed, and that the mother’s Article 8 rights were breached because she had been automatically and permanently deprived of parental rights after her conviction. It also held under Article 46 (binding force and implementation of judgments), without prejudice to any general measures required to prevent any similar violations in future, that the Maltese authorities had to provide for a procedure allowing the mother the possibility to request an independent and impartial tribunal to assess whether the removal of her parental rights had been justified. It further recommended that Malta take general measures to ensure an effective access to court for persons who have been affected by a care order.
Judgment of 20 July 2012 at ¶¶ 1, 13-14, 16-17.
 Ibid. at ¶ 1.
 Ibid. at ¶¶ 13-14, 53-54.
 Ibid. at ¶ 55.
 Ibid. at ¶ 114.
 Ibid. at ¶ 117.
 IT-98-29/1-A, 16 July 2012.
 Ibid. at ¶¶ 2-3.
 Ibid. at ¶¶ 5-7.
 Ibid. at ¶ 8.
 Ibid. at ¶¶ 11-13.
 Ibid. at ¶¶ 14-15.
 IT-05-88-A, 16 July 2012.
 Ibid. at ¶ 2.
 Ibid. at ¶ 4.
 Ibid. at ¶ 10.
 IT-03-69-T, 18 July 2012.
 IT-95-5/18-T, 18 July 2012.
 IT-04-75-PT, 19 July 2012.
 Case File 002/19-09-2007-ECCC-TC/SC(15), 2 July 2012 (posted 17 July 2012)
 ICC-01/11-01/11, 18 July 2012.
 Ibid. at ¶¶ 1-2, 4-5, 7-9.
 Ibid. at ¶ 10.
 Ibid. at ¶ 12.
 Application no.64791/10, 17 July 2012. All text is taken from the press release.