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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