Monthly Archives: August 2012

Review of International Tribunal Decisions for the week of August 20, 2012

This week’s review has decisions from the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the Special Tribunal for Lebanon (STL). We have just a few decisions as summer brings with it a general lull in the work of the international tribunals. However, while the decisions themselves may not be the most interesting, their subject matter is. At the ICTY, Mr. Karadžić repeatedly tried to get the Tribunal to order the United States of America to produce information and individuals for testimony. At the STL, the defense challenged the existence and jurisdiction of the Tribunal and obtained the right to appeal the Trial Chamber’s decisions on those matters. Last week was a slow, but not uninteresting.

International Criminal Law

ICTY

Prosecutor v. Karadžić[1]

Decision On the Accused’s Second Motion for Subpoena to Interview President Bill Clinton[2]

&

Decision on the Accused’s Fifth Motion for Binding Order (United States of America)[3]

This pair of decision involved requests by the Accused to interview and obtain information from the United States (both testimony and documents). They were both denied on the grounds that he had failed to identify information that was relevant to his defense.

Prosecutor v. Šešelj[4]

Decision on Amicus Curiae Prosecutor’s Motion for a Declaration that Vojislav Šešelj has Waived His Right to Appeal

The Appeals Chamber ruled that Mr. Šešelj had waived his right to appeal because he did not file his appeal brief’s in accordance with prior instructions, and that he hade been warned that failure to do so would result in his waiving his right to appeal.

STL

Prosecutor v. Ayyash, Badreddine, Oneissi & Sabra[5]

Decision Certifying for Appeal the “Decision on the Defence Challenge to the Jurisdiction and Legality of the Tribunal”[6]

&

Decision certifying for Appeal the “Decision on Reconsideration of the Trial In Absentia Decision”[7]

In both these decisions the Trial Chamber decided that the issues at hand (the legality of the Tribunal and whether to allow the trial in absentia to go forward) were issues that would be best decided by the Appeals Chamber at this stage. Interestingly, the scope of the appeal in the reconsideration decision was not set by the Trial Chamber.[8] Instead, the Chamber held that it was certifying the decision, what issues were admissible on appeal therein was to be decided by the Appeals Chamber.[9]


[1] IT-95-5/18-T.

[2] 21 August 2012.

[3] 22 August 2012.

[4] IT-03-67-R77.3-A, 23 August 2012.

[5] Both Decisions are from STL-11-01/PT/TC, 23 August 2012.

[6] Decision #1.

[7] Decision #2.

[8] Ibid. at ¶ 6.

[9] Ibid.

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Genocide and the US Presidential Election

Yesterday Prof. Schabas posted a very pointed comment on references to Iran and genocide during the American political contest for president. It is excellent reading for anyone interested in the legal meaning of genocide and how it should be applied. The post can be found here.

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Review of International Tribunal Decisions for the Week of August 3, 2012

The United Nations ad hoc international tribunals are currently on recess, but that does not mean that international justice has come to a halt. This week the International Criminal Court (ICC) issued an important decision on the procedures for determining reparation for victims and the Extraordinary Chambers in the Courts of Cambodia (ECCC) has also been active with decisions on evidence and the examination of witnesses. The Special Tribunal for Lebanon (STL) issued a decision on access to confidential material.

International Criminal Law

ECCC

Case 002[1]

Memo: Response to Rule 87(4) Request to Place a New Document on the Case File (E217)

The defense team for Nuon Chea requested to place a new document (an article written by the witness and published on the internet) in the case file so that it could be used during the questioning of the witness.[2] The Chamber decided that the article could not be used during the examination of the witness as article is repetitious of previous filings by the defense and that the conclusions in the article about the unfairness of the proceedings before the ECCC have no evidential value.[3]

Case 001[4]

Decision on Guidelines for Reclassification of Documents on Case File

The Supreme Court Chamber, being the last chamber seized of Case 001, issued a decision on the reclassification of documents used during the first case before the ECC.[5] The Chamber noted that the “wide dissemination of material concerning the proceedings” is in accordance with the mission of the court.[6] As such, with the end of the judicial proceedings there is no longer any need to keep documents related to the investigation confidential.[7] The Chamber therefore announced a series of guidelines for what kind of documents should remain confidential including personal information for victims, in camera proceedings, requests for protective measures, documents subject to protective measures and other documents whose confidentiality is still warranted.[8]

STL

Prosecutor v. Ayyash, Badreddine, Oneissi & Sabra[9]

Decision on Duty Legal Representative’s Request for Access to Confidential Submissions and Extension of Time

Background

The Duty Legal Representative requested access to confidential information with an eye toward appealing the Registrar’s designation of a lead legal representative.[10] In a prior decision, the Court formed one group of victims and appointed a single legal representative.[11] The Pre-Trial Judge granted the request.

Reasoning

The Pre-Trial Judge noted that the decision on the single legal representative was based in part on confidential submissions of the victim protection unit.[12] For this reason, the duty legal representative will need access to the confidential material in order to adequately prepare the motion.[13]

ICC

Prosecutor v. Lubanga[14]

Decision Establishing the Principles and Procedures to be Applied to Reparations

The Trial Chamber issued a decision outlining what it believes the role of the judiciary should be in determining and applying principles of reparation in the proceedings before the ICC given the recent conviction of Mr. Lubanga for crimes related to the recruitment and use of child soldiers. In particular, the fact that the proceedings on reparations are focused on the victims and not the prosecution and the accused.[15]

The Chamber noted that the Rome Statute creates a new system that is more extensive that that previously used in international criminal law by carving out a role for victims and allowing for remedies for the harms they have suffered.[16] Reparations in this context

“must – to the extent achievable – relieve the suffering caused by these offences; afford justice to the victims by alleviating the consequences of the wrongful acts; deter future violations; and contribute to the effective reintegration of former child soldiers. Reparations can assist in promoting reconciliation between the convicted person, the victims of the crimes and the affected communities (without making Mr Lubanga’s participation in this process mandatory).”[17]

In this context the Chamber “accepted” the existence of a right to reparations as being “well-established” in international law.[18] With this in mind, the Chamber held that reparations should not be limited to those victims that participated in the trail.[19] One goal of the reparations system is to reconcile the convicted person with the victims and the affected community.[20]

The Chamber noted that regional and cultural variations should be taken into consideration when determining whether an individual had a close personal relationship with a direct victim; for example culture with determine if a claimant and a direct victim had a close personal relationship.[21] Indirect victims also include those who attempted to stop the crimes or intervened on behalf of the victims.[22] This includes legal entities.[23] This does not mean that all victims are equal as such, even though there should be no discrimination based on gender, language etc..[24] Priority is to be given to victims of sexual or gender based violence and those that need immediate medical care as well as traumatized children.[25]

Communities and families are to be able to participate in the reparations proceedings and they should receive support for that participation.[26] This includes a gender based approach and gender inclusive programs.[27] Focus in particular being given to women and girls who were the victims of sexual violence to permit them to fully participate in the proceedings.[28]

The goal of reparations for child soldiers should,

guarantee the development of the victims’ personalities, talents and abilities to the fullest possible extent and, more broadly, they should ensure the development of respect for human rights and fundamental freedoms. For each child, the measures should aim at developing respect for their parents, cultural identity and language. Former child soldiers should be helped to live responsibly in a free society, recognising the need for a spirit of understanding, peace and tolerance, showing respect for equality between the sexes and valuing friendship between all peoples and groups.”[29]

The Court will therefore work to provide information on available programs for the victims.[30] Given the large number of victims, but the small number who have applied for reparations, the Chamber should ensure that there is a collective approach to ensure reparation for victims who are as of yet unidentified.[31]

The Chamber also listed and defined the meaning of all the forms of reparation contained in the Rome Statute.[32]  It was noted that the conviction and sentence of the accused is a form of reparation as it will have an effect on the victims.[33] The same is true of the publication of the judgment.[34] However, other than this and standard forms of payment, the Court is empowered to institute other forms of reparation such as,

“establishing or assisting campaigns that are designed to improve the position of victims; by issuing certificates that acknowledge the harm particular individuals experienced; setting up outreach and promotional programmes that inform victims as to the outcome of the trial; and educational campaigns that aim at reducing the stigmatisation and marginalisation of the victims of the present crimes.”[35]

In part, these programs are to prevent future conflicts and raise awareness of the problem of using child soldiers.[36] This can include a voluntary apology by Mr. Lubanga, which cannot form the part of any court ordered reparations.[37]

As to causation, the Chamber concluded that the harm need not be directly caused by the crimes, only that the crime be the proximate cause of the harm suffered.[38] This means there must be a “but/for” relationship between the harm and the crime.[39] These claims of harm need only be proven on a “balance of probabilities” standard as this is no longer a criminal trial as such.[40] In keeping with this characterization of the proceedings, the Chamber held that the present judges did not need to remain seized of the case and oversee the reparations proceedings but instead a new specially constituted chamber would take over the case.[41] In essence, the determination of reparations was turned over to the Trust Fund for Victims to be overseen by the Chamber as may be necessary.[42]

After all of this, the Chamber was quite clear that it did not believe that its elucidation of the principles applicable to reparations proceedings would affect the rights of victims to reparations in other cases “whether before the ICC or national, regional or other international bodies.”[43]

Prosecution v. Gaddafi & Al-Senussi[44]

Decision on the “Libyan Government Request for Status Conference and Extension of Time to file a Reply to the Responses to its Article 19 Admissibility Challenge”

Background

Libya filed an admissibility challenge and after the filing of the responses requested a status conference “as a matter of urgency”.[45] The purposes of the status conference would provide an opportunity for “(i) the parties can receive a “report as to the progress of the ICC investigation into the conduct of OPCD counsel”, (ii) a discussion can be held regarding “the propriety of the continuing appointment of the OPCD as counsel for Mr Gaddafi given the apparent breakdown in their relationship with the Libyan Government and his right to have defence (sic) counsel that can make an effective contribution to proceedings”, (iii) an update as to the progress of the appointment of the Libyan Ministry of Justice team may be given, and (iv) a new timetable for proceedings may be set.”[46] The Chamber rejected the request for a status conference.

Reasoning

The Chamber rejected the request for a conference to deal with the issue of the OPCD as defense counsel because there were no proceedings to disqualify them before the Court.[47] Likewise a conference for discussing the time table for going forward is unnecessary as the issue can be resolved Justas easily through written motions.[48] The Court decided to suspend the time limit for Libya’s reply to the responses to its motion due to complications arising from the absence of a Minister of Justice and the election of a new government.[49] The Chamber also requested information on the appointment of a new Attorney-General and Prosecutor-General as well as information on domestic proceedings against Mr. Gaddafi and the conditions of his detention.[50]


[1] Memo Placed on the website, 6 August 2012.

[2] Para. 1 of the memo.

[3] Ibid. at paras. 3-4.

[4] Case File 001/18-07-2007-ECCC/SC, 26 July 2012. Placed on the website on 8 August 2012.

[5] Ibid. at para. 1.

[6] Ibid. at para. 5.

[7] Ibid. at para. 6.

[8] Ibid. at para. 7.

[9] STL-11-01/PT/PTJ, 8 August 2012.

[10] Ibid. at para. 1.

[11] Ibid. at para. 3.

[12] Ibid. at para. 8.

[13] Ibid. at para. 9.

[14] ICC-01/04-01/06, 7 August 2012.

[15] Ibid. at para. 267.

[16] Ibid. at paras. 177-178.

[17] Ibid. at para. 179.

[18] Ibid. at para. 185, 217.

[19] Ibid. at para. 187, 194.

[20] Ibid. at para. 193.

[21] Ibid. at para. 195.

[22] Ibid. at paras. 194, 196.

[23] Ibid. at para. 197.

[24] Ibid. at paras. 187-188.

[25] Ibid. at para. 200.

[26] Ibid. at para. 203.

[27] Ibid. at paras. 202, 205, 210-211, 218, 243.

[28] Ibid. at paras. 208-209.

[29] Ibid. at para 215.

[30] Ibid. at para. 214.

[31] Ibid. at para. 219.

[32] Ibid. at paras. 223-241.

[33] Ibid. at para. 237.

[34] Ibid. at para. 238.

[35] Ibid. at para. 239.

[36] Ibid. at para. 240.

[37] Ibid. at para. 241, 269.

[38] Ibid. at para. 249.

[39] Ibid. at para. 250.

[40] Ibid. at paras. 251, 253.

[41] Ibid. at para. 261.

[42] Ibid. at paras. 281-289.

[43] Ibid. at para. 181.

[44] ICC-01/11-01/11, 9 August 2012.

[45] Ibid. at para. 5.

[46] Ibid. at para. 6.

[47] Ibid. at para. 15.

[48] Ibid. at para. 16.

[49] Ibid. at para. 18.

[50] Ibid. at para. 20.

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Would Intervention in Syria Violate International Law?

In July the Public International Law & Policy Group (PILPG) issued a memorandum setting forth the legal basis for international military intervention in Syria. The memorandum analyzed the conflict using the doctrine known as the Responsibility to Protect (R2P).[1] The very short memorandum (only 23 pages)[2] concludes that R2P is a norm of customary international law that allows military intervention by individual States when the United Nations (UN) Security Council does not act to end ongoing atrocity crimes.[3] The memorandum justifies its interpretation of R2P by looking to the first Gulf War in 1991 and the NATO intervention in Kosovo of 1998.[4] It also relies on the International Commission on Intervention and State Sovereignty (ICISS) Report from 2001, which developed the idea of R2P as such, and the acceptance of this principle by the UN.[5] That acceptance was argued based on the 2005 World Summit Outcome Document (Outcome Document), which made reference to the doctrine, and the use of similar language by the Security Counsel in authorizing the 2011 intervention in Libya.[6] The greatest flaw with this memorandum is that it presupposes what it desires to prove, the validity of R2P’s permissive stance on military intervention outside of the framework of the UN Security Council.[7] This assumption renders the memorandum of little practical use and deprives its conclusion of any legal value.

The memorandum is correct to point out that the R2P doctrine was developed in response to mass atrocities in the 1990’s. It was most notably based on the Kosovo intervention of 1998 carried out by the North Atlantic Treaty Organization (NATO) in response to allegations of such atrocities. Kosovo, however, was not an example of R2P as it predated the development of the doctrine. The same is true for the First Gulf War in 1991 which was in any case authorized by the UN Security Council in response to a cross border international conflict.[8] Furthermore, as the memorandum acknowledges, there is a diversity of opinion on the legality of the NATO intervention outside the auspices of the UN Security Council.[9] R2P was in part developed to move past this form of “humanitarian intervention” into a system governed by legal principles to legitimize actions that while legally dubious were considered to be morally justifiable. The conclusions of the memorandum might have been correct if R2P had become a principle of customary international law in its original form including the sanctioning of military intervention without UN Security Council approval. The doctrine, before obtaining this level of legitimacy, evolved.

R2P was developed by ICISS under the auspices of the Canadian government; it was not an international (in the sense of inter-State) meeting resulting in an international agreement setting out a principle of international law. The report was an attempt to move the law forward by developing a number of principles, one of which would allow military intervention to put a stop to ongoing mass atrocity crimes when the UN Security Council failed to act. The principle of R2P did not make the jump to realm of real law (soft as it may be) until the 2005 Outcome Document where the UN General Assembly endorsed R2P’s main idea of sovereignty as responsibility. The prong providing for military intervention, however, was significantly modified. Intervention was limited to those situations where the UN Security Council authorizes military action. The Security Council invoked this meaning of R2P when it authorized military intervention in Libya, not the broader version pronounced in the ICISS Report. This can be seen from the lack of any language to the effect of adopting the broader meaning of the doctrine and the fact that the Security Council in fact authorized the intervention.[10]

The memorandum’s reliance on the broader understanding of R2P in the ICISS Report and the acceptance of that principle at the international level is incorrect. Intervention outside of the UN framework did not survive the transposition of R2P from the ICISS Report to the level of actual international law. The States of the world did not accept that aspect of the doctrine thereby leaving it on the way-side when R2P was accepted as an “emerging norm” of international law. All the dicussion about the existence (or not) of a prima facie case of atrocity crimes in Syria in the memorandum is irrelevant for the purposes of any application of R2P as the doctrine currently stands. Outside of Security Council authorization for military intervention, there is no right of one State to intervene militarily in another.[11]

Hiding in the background of the memorandum’s analysis is a feeling that the UN Security Council has failed in its mission to protect international peace and security which should then open up the possibility of other solutions to international problems. R2P was supposed to be a new legal basis for acting when the UN sits on its hands. Unfortunately, R2P and the old idea of “humanitarian intervention” which it was supposed to replace suffer from the same deficiencies. Neither makes clear how the preconditions for action are to be established or by whom. They both come down to situations where the party that wants to intervene will declare that the preconditions are met while those against action will argue that they have not. Without a neutral arbiter, the criteria for intervention themselves are of little use.  In theory, that arbiter should have been the UN Security Council, but the inaction of that body is exactly the problem.[12]

The memorandum attempts to justify unauthorized military intervention in Syria by relying on an outdated version of R2P. The doctrine could have potentially allowed such an intervention as it was originally developed in the ICISS Report, but that prong of the doctrine was not adopted by the international community in the Outcome Document of 2005, nor was it adopted by the Security Council when it authorized intervention in Libya in 2011. The harsh truth is that R2P as it currently stands does not permit individual States (or groups thereof) to intervene militarily in other States to put an end to ongoing mass atrocity crimes. The memorandum reaches the opposite conclusion based on a false premise of the validity of R2P in its original form. If intervention outside of Security Council authorization is to be legal, it will have to find its justification somewhere else.


[2] Not including the executive summary and table of contents.

[3] ibid. at pp. 7-15.

[4] ibid. at pp. 11-12.

[5] ibid. at pp. 13-14.

[6] ibid. at pp. 14-15.

[7] This can be seen in the statement near the end of the executive summary that “As R2P currently stands, an intervention that satisfied all of these requirements and criteria would be legal.”

[8] The First Gulf War was started after Iraq invaded Kuwait and refused to withdraw.

[9] ibid. at p. 1.

[10] This example in many ways fails for the same reason as the Gulf War example. Both were in the end authorized by the Security Council and so do not evidence any norm allowing action outside of Security Council action.

[11] This is of course assuming the doctrine is even valid as a matter of law. This is in the UN Charter, Article 2(4).

[12] The International Court of Justice would be a possible forum except that the proceedings before that court can take years, far too long in an emergency situation.

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Review of International Tribunal Decisions for the week of July 30, 2012

This week’s review has cases from the Special Tribunal for Lebanon (STL), International Criminal Court (ICC), Extraordinary Chambers in the Court of Cambodia (ECCC) and The European Court of Human Rights (ECtHR). The subjects range from the legality of the Lebanese tribunal, the competency of an accused to stand trial and the use of evidence during the questioning of witnesses.

International Criminal Law

STL

Prosecutor v. Ayyash, Badreddine, Oneissi & Sabra[1]

Decision on the Defence Challenges to the Jurisdiction of the Tribunal

Background

Defense counsel filed a motion claiming that the STL was set up illegally, violated Lebanese sovereignty, has selective jurisdiction and does not guarantee the accused a right to a fair trial. The Trial Chamber dismissed all these arguments.

Reasoning

The Trial Chamber found that the defence motions are not challenges to jurisdiction but rather challenges to legality, or the validity, of the Tribunal. The challenges therefore do not fall within the definition of a preliminary motion. The Trial Chamber found that the United Nations Security Council established the STL when it passed Resolution 1757 in May 2007. Lebanon, as a member state of the United Nations has complied with its obligations under the Resolution. Because of this, the Trial Chamber found that it was not necessary to examine any issues in the Defence motions alleging violation of Lebanese domestic law.

The Trial Chamber found that had it no power to review the actions of the Security Council in establishing the Tribunal and that “No other judicial body possesses such a power of potential judicial review of the Security Council”. Further, the Trial Chamber found that, because the United Nations may establish a court, a Tribunal established by the United Nations or Security council, such as the Special Tribunal for Lebanon, has been validly “established by law”.

The Trial Chamber found that the limited jurisdiction of the Tribunal did not infringe any of the Accused’s fundamental rights to a fair trial. “Criminal investigation and prosecution is unavoidably selective in any system” the Trial Chamber held. And such “selectivity” is a normal part of international criminal jurisdictions such as the STL’s “and an inevitable consequence of establishing an international criminal court or tribunal,” the Trial Chamber found.

The Trial Chamber found that the Tribunal’s procedures under its Statute and Rules and it obligation to strictly apply the principles of international human rights law guarantee the Accused, “all relevant and necessary rights to a fair trial”. The establishment of the Tribunal does not violate the rights of the Accused to a fair trial.

ICC

Prosecutor v. Gbagbo[2]

Decision on issues related to the proceedings under rule 135 of the Rules of Procedure and Evidence and postponing the date of the confirmation of charges hearing

Background

The Chamber ordered that the accused undergo medical testing to determine if he was in sufficient health to stand trial.[3] The parties then filed motions on the level of confidentiality for the medical reports.[4] The Single Judge ordered that the medical reports be given a certain level of confidentiality appropriate for each document and postponed the start of the confirmation of charges hearing.

Reasoning

The Single Judge decided that the parties should file observations with the Court before a final decision is made on the accused’s fitness to stand trail.[5] In order to make such observations, the Prosecution must have access to the medical reports but the redactions requested by the defense were excessive.[6] The Single Judge therefore ordered the defense to provide redacted versions of the reports following instructions given in the annex to the present decision.[7] The postponement of the confirmation hearing was ordered due to the fact that a determination on the accused’s fitness to stand trial is still pending.[8]

ECCC

Case 002[9]

Memo on Response to outstanding request in E216

The Prosecution requested that the Chamber put the entirety of an unpublished thesis written by a witness in the case file and that the thesis be available for use in questioning the witness. The Chamber denied this request as documents need to be available in all three of the working languages of the court and the thesis is only available in French. One reason for this denial was the tardiness of the request given the timeframe for translation and the closeness of the witness’ testimony.

International Human Rights Law

ECtHR

Drakšas v. Lithuania[10]

Chamber Judgment

Background

The case concerned a Lithuanian politician (one of the founding members of the Liberal Democrats political party, led by former President Rolandas Paksas) and the tapping of his telephone authorized by the authorities. He complained that the recorded conversations had been leaked to the media and later revealed on national television during the constitutional proceedings on President Paksas’ impeachment case.

Reasoning

As regards the disclosure of the applicant’s conversation of 16 March 2003, the Court found that, while the public had had a right to information about civil servants, the State Security Department should have kept the recording confidential. However, the disclosure of the applicant’s conversations (with his business partners and President Paksas) in the framework of Constitutional Court proceedings had been in accordance with the law and part of the judicial process.


[1] STL-11-01/PT/TC, 27 July 2012. The decision was published on 30 July 2012. All the text in summary was taken from the press release of the tribunal. A more in-depth discussion of this decision will be forthcoming.

[2] ICC-02/11-01/11, 2 August 2012.

[3] Ibid. at ¶ 2.

[4] Ibid. at ¶¶ 6-7.

[5] Ibid. at ¶ 16.

[6] Ibid. at ¶ 17.

[7] Ibid. at ¶¶ 21.

[8] Ibid. at ¶ 22.

[9] This is a memo from the president of the Trial Chamber issued on 31 July 2012.

[10] Application No. 36662/04. All text is taken from the press release.

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