The latest edition of the American Society of International Law, International Criminal Law Interest Group newsletter, Accountability, has been issued. It has articles on the Taylor judgment at the SCSL, one by myself, and addressing topics running from criminal justice in Africa to the denial of humanitarian assistance as a crime against humanity. It is a good way to get different perspectives on important ICL issues. It is expertly edited by Margaret Zimmerman whose hard work in putting the issues together is much appreciated.
Monthly Archives: September 2012
Review of International Tribunal Decisions for the week of September 17, 2012
This week’s review is short and to the point. We have two decisions, one each from the Extraordinary Chambers in the Courts of Cambodia (ECCC) and the European Court of Human Rights (ECtHR).
International Criminal Law
ECCC
Case No. 002[1]
Decision on Co-Prosecutors’ Request for Stay of Release Order of IENG Thirith
Background
The Trial Chamber ordered the unconditional release of IENG Thirith following a determination that she would never be fit to stand trial.[2] The Prosecution requested that the Supreme Court Chamber impose conditions on her release, but did not appeal the decision on her release.[3]
The President of the Court considered that conditions to ensure IENG Thirith’s disposition to the court must be imposed pending a decision on the Prosecution’s request.[4] He further considered that he had the authority to order release conditions considering his authority to order continued detention.[5] In this case he therefore ordered that the Accused shall inform the Court where she will reside and not move without permission, surrender her passport, not leave the country and respond to any summons of the court.[6]
International Human Rights Law
ECtHR
James, Wells & Lee v. the United Kingdom[7]
Chamber Judgment
Background
The applicants were held under a program that kept convicts imprisoned after then end of their sentences if they were considered to be a threat to society. Following the end of the initial post-sentence detention they were kept in detention without access to review or a means to obtain their release. During the domestic proceedings the British courts found that the public authority had grossly failed in its duty to avoid just such a circumstance. However, the municipal courts found no violation of the European Convention because the applicants’ detention could not be said to be arbitrary as they at one point posed a danger to society. The ECtHR disagreed.
Reasoning
The Court determined that when given an indeterminate sentence to protect the public, a convict must be given a real opportunity for rehabilitation. While such detention could be permissible, it could only be done for as long as there was need. The failure of the public authorities to provide these opportunities was significant in this case. The applicants’ time in detention, after their initial period of incarceration and before they gained access to rehabilitation programs was therefore a violation of the convention.
Filed under Weekly Review
The Freedom of Expression
As everyone is aware at this point, a video posted on YouTube recently set off a firestorm of violence reaching from Libya to Afghanistan. There has been extensive property damage at American and other western diplomatic missions and the murder of diplomatic personnel including the American ambassador to Libya. Following the outbreak of violence, Google (who owns YouTube) decided to block access to the video in certain countries. It did so on an ad hoc basis saying in a press release that the video did not violate its terms of use. The Whitehouse has since requested that Google revisit that decision. At least one of the producers has also been taken in for questioning. This post will look at some of the implications this episode has for the freedom of expression.
Background – Just what is this video anyway?
The video (which I have seen) is purportedly a trailer for a satirical movie about the life of the Prophet Mohammed. It starts with a scene somewhere in the Muslim world of a Christian doctor and his family closing their medical clinic because an angry mob is coming to burn them out. There is then a brief scene where the violence is blamed on Christian extremists (the video clearly shows that the mob was Muslim) as part of further discrimination against Christians. The video then inexplicably shifts to scenes from the sixth century and the life of Mohammed. Each scene is more insulting than the last to the religious sensibilities of many Muslims with references to prostitution, pedophilia, murder and homosexuality. To add insult to injury, the production quality is about what one would expect from a sixth grader with his father’s video camera.
The exact origins of this video are unclear. Did they make the video to incite violence? Was the video a poor artistic attempt at satire, like a very bad imitation of the Monty Python classic, the Life of Brian? Unfortunately we do not know at this point what they were thinking or really who they are. I will assume for the purposes of my analysis that the video was not intentionally designed to incite violence and is instead just in very poor taste.[1]
Apart from the existence of this video, another possible contribution to the recent violence is the work of outside actors who used the video to instigate the attacks on the American embassies.
The Bounds of the Freedom of Expression
The internationally protected right to the freedom of expression is guaranteed in several different human rights treaties. The right however is not unlimited. For example the International Covenant on Civil and Political Rights provides:
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.[2]
This right, however, includes,
political discourse, commentary on one’s own and on public affairs, canvassing, discussion of human rights, journalism, cultural and artistic expression, teaching, and religious discourse. It may also include commercial advertising. The scope of paragraph 2 embraces even expression that may be regarded as deeply offensive, although such expression may be restricted in accordance with the provisions of article 19, paragraph 3 and article 20. (internal citations omitted)[3]
This article clearly provides that speech injurious to public order can be regulated carrying with it certain penalties or punishments. This includes the limitations of article 20 prohibiting, inter alia, speech promoting war and religious hatred.[4] However, the limitations may not be based on customary or religious law.[5] Furthermore any restriction must be “necessary” and not overbroad or over inclusive.[6] The protection also extends to acts of private organizations.[7]
The European Convention on Human Rights contains a similar provision. This one provides:
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.[8]
The ability to regulate offensive speech under the ECHR appears to be much higher. For example, in 1996 the European Court of Human Rights issued a judgment in Windgrove v. the United Kingdom (application 17419/90) upholding the prior restraint of a sacrilegious film depicting sexual acts between Saint Teresa of Avila and Jesus.[9] Essentially, the court allows for a “margin of appreciation” for member States to decide what protections are necessary to protect special sensitivities in the area of religion.
The American Convention on Human Rights has the most detailed and highly protective provisions on the freedom of expression of all the major international human rights instruments. It provides:
1. Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one’s choice.
2. The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:
a. respect for the rights or reputations of others; or b. the protection of national security, public order, or public health or morals.
[…]
5. Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law.[10]
This article clearly prohibits any kind of prior restraint, the kind of thing that may be permissible under the European system. The crux of this system is that there may be responsibility for one’s speech only after the fact and under clearly established legal frameworks.
All the international human rights mechanisms provide that speech/expression that incites violence may be prohibited/regulated. This comes either in specific language (such as the American convention) or in references to the ordre public. They also all provide that such regulation/prohibition must come in the form of clear laws in existence before the fact that are no more restrictive than necessary. In the cases of the ICCPR and the American convention, the punishment/regulation cannot be based solely on the fact that the speech/expression is offensive to one or another group.
Google’s Blocking of Access in Certain Countries
After violence erupted in Egypt and Libya, Google decided to block access to
the offensive video ostensibly to try and limit the spread of violence. As reported in the New York Times,
Google said it decided to block the video in response to violence that killed four American diplomatic personnel in Libya. The company said its decision was unusual, made because of the exceptional circumstances. Its policy is to remove content only if it is hate speech, violating its terms of service, or if it is responding to valid court orders or government requests. And it said it had determined that under its own guidelines, the video was not hate speech.[11]
It should be clear that the actions of Google fall within international human rights protections. True, YouTube is a private company and is not required to publish any material on the Internet at all. This fact does not mean that a company providing a public service may discriminate in any manner that is chooses. Whether this is seen as a human rights norm directly governing private activity or simply a norm putting an obligation on States to regulate the private activity is not important. The free expression of ideas requires that everyone have equal access to communication outlets.
Was Google’s choice to censor the offending video in Egypt and Libya legitimate? I cannot help but conclude that it was to the extent that the removal is limited in time to try and reduce the violence. Limited action is permissible when it is necessary to protect other protected rights: in this case the right to life. The video was being used to fuel violent protests and the assault of diplomatic premises resulting in the murder of American diplomatic personnel. Others were injured in clashes with the police. Temporarily blocking access to a video in particular countries where violence is ongoing would seem to be reasonable.
The Request to Review the Video
The American government’s request for YouTube to reconsider its decision that the video does not violate the terms of use is more troubling. The Whitehouse asked specifically that the video be removed from the website. As noted, the video is of low quality and offensive. YouTube responded,
We work hard to create a community everyone can enjoy and which also enables people to express different opinions. This can be a challenge because what’s OK in one country can be offensive elsewhere. This video — which is widely available on the Web — is clearly within our guidelines and so will stay on YouTube.
Google should be applauded for sticking to the principle of free access and diffusion of information.
The government should not be in the business of preventing speech even if it is of little value. This is explicitly recognized in the American convention and the work of the Human Rights Committee. The government should only intervene if a crime has been committed and then only to punish the crime not silence the speech.
The proper response to inaccurate speech, or offensive speech, is explicitly contained in the American convention. Article 14 sets out:
1. Anyone injured by inaccurate or offensive statements or ideas disseminated to the public in general by a legally regulated medium of communication has the right to reply or to make a correction using the same communications outlet, under such conditions as the law may establish.
2. The correction or reply shall not in any case remit other legal liabilities that may have been incurred.
3. For the effective protection of honor and reputation, every publisher, and every newspaper, motion picture, radio, and television company, shall have a person responsible who is not protected by immunities or special privileges.
The cure for inaccurate speech is not to cause silence, but more speech. The famous quote by Justice Brandeis is most apropos in this case. He said,
To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger fl
owing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression.[12]
Can the Authors of the Video Be Held Criminally Liable?
The last question is whether or not the producers of the video should be subject to legal action in the United States (I am focusing on the United States because as far as is publically known, the authors are there). In this instance I believe the intent of the authors is of paramount importance. If the film is merely an extremely bad production in poor taste, I can see there as being little if any sanction for the producers. American jurisprudence holds some suggestion about what would be appropriate in this circumstance.
American jurisprudence contains certain requirements before speech can be punishable. The most famous is that it must present a “clear and present danger”. This language comes from the seminal opinion of Justice Holmes in the World War I era case of Scheck v. United States.[13] The second, developed much later, is that the speech be intended to have its negative effect and is likely to do so.[14] The speech cannot be punished absent immanent danger of violence.[15] These requirements would appear to also be in line with the requirement of the American convention and the ICCPR.
This is why the facts are incredibly important in this case. If the producers of the video intended to cause violence or fuel unrest in Muslim countries there might be a basis to hold them liable for the effects video. On the other hand, if it was just in extremely poor taste, there was nothing immediate about either the violence or any desire to cause violence that could provide the basis for punishment. There is also the question of whether or not the video has been used by instigators to further their own agenda in the region. If this last possibility were true, it would be more than inappropriate to punish the creators of the film for its effects. It would be as if someone wrote an offensive poem in England that was then used by someone in India to show how the English look down on Indians. The author would have had little or nothing to do with that. And then, outside of insulting material, writings or films that make people uncomfortable or even angry are sometimes what is needed to prompt possitive social change.[16]
Conclusion
Recent violence in Muslim countries over an offensive video produced in the United States is a situation that governments and private actors must have the ability to address in real time. On the other hand, a situation that gets out of control should not be used as an excuse to permanently limit the freedom of expression to only those “safe” expressions of opinion that will not offend anyone. While Google was probably correct to temporarily block access to the video in Egypt and Libya, it would be wrong for YouTube to remove the video as the Whitehouse requested. The American government would also be wrong to punish the producers if they did not intend to incite violence, especially in the case that others used the video to instigate the attacks. The desire to hold someone accountable should not be an excuse to violate the fundamental human right to the freedom of expression.
[1] If the video were designed for the purpose of inciting violence there may be other legal frameworks in which to analysis the situation.
[2] International Covenant on Civil and Political Rights, Article 19.
[3] General Comment No. 34, CCPR/C/GC/34, 12 September 2011, ¶ 11.
[4] International Covenant on Civil and Political Rights, Article 20.
[5] General Comment No. 34, CCPR/C/GC/34, 12 September 2011, ¶ 24.
[6] Ibid. at ¶¶ 33-34.
[7] Ibid. at ¶ 7.
[8] European Convention on Human Rights, Article 10.
[9] Windgrove v. the United Kingdom, application 17419/90, 25 November 1996. Interestingly enough, the video in question has since been released. Although it was only this year, two decades after it was banned. http://www.telegraph.co.uk/culture/film/film-news/9178125/Film-banned-for-blasphemy-to-be-released-after-two-decades.html
[10] American Convention on Human Rights, Article 13.
[11] Claire Cain Miller, As Violence Spreads in Arab World, Google Blocks Access to Inflammatory Video, NY Times, 13 September 2012, available at http://www.nytimes.com/2012/09/14/technology/google-blocks-inflammatory-video-in-egypt-and-libya.htm
[12] Whitney v. California, 274 U.S. 357 (1927), concurring opinion of Justice Brandeis.
[13] 249 U.S. 47 (1919).
[14] Brandenburg v. Ohio, 395 U.S. 444 (1969). Justice Black’s concurrence actually called the application of the “clear and present danger” standard into question.
[15] Terminiello v. Chicago, 337 U.S. 1 (1949).
[16] Ibid.
Filed under International Human Rights, News and Events
Review of International Tribunal Decisions for the week of September 10, 2012
This week has decisions from the International Criminal Tribunal for the Former Yugoslavia (ICTY), the Special Court for Sierra Leone (SCSL), the Special Tribunal for Lebanon (STL), the Extraordinary Chambers in the Courts of Cambodia (ECCC) and the European Court of Human Rights (ECtHR). The subjects include the procedure for expert witnesses, the disqualification of judges, public trials, fitness to stand trial and the authority of the United Nations Security Council. There are also two separate/dissenting opinions this week making the decisions all the more interesting.
International Criminal Law
ICTY
Prosecutor v. Mladić[1]
Decision on the Prosecution Submissions on the Expert Statement of Prosecution Witness Teufika Ibrahimefendić Pursuant to Rule 94 BIS
Background
The Prosecution reclassified one of its witnesses as an “expert” and sought to tender the witness’ prior testimony as her “full statement” of credentials to satisfy Rule 94 bis on expert witnesses.[2] The Defense objected to the motion arguing that the Rule required more than viva voce statements to establish credentials and allow for adequate preparation for cross-examination.[3] The Chamber, by majority, granted the motion.
Reasoning
The Majority held that the Rule did not exclude qualifying an expert by using prior viva voce testimony and that the prior testimony contained sufficient information to allow the Defense to prepare its cross-examination or challenge the qualification of the witness as an expert.[4]
The Dissent
Judge Moloto would have held that a proper report or statement needs to be introduced by the offering party so as to avoid “litigation by ambush”.[5] He also would have held that the rule must be applied all at once, that is, decisions on the qualification of the expert, the sufficiency of the report and its admission into evidence.[6] He in general disapproves of the “piecemeal” approach of the majority.[7]
SCSL
Prosecutor v. Taylor[8]
Decision on Charles Ghankay Taylor’s Motion for Partial Voluntary Withdrawal or Disqualification of Appeals Chamber Judges
Background
The defense filed a notice of appeal in which it, inter alia, irregularities in the judicial process, specifically, a lack of deliberations on the evidence.[9] The defense requested that the judges of the Appeals Chamber recuse themselves or allow and outside body to determine if there was any conflict of interest or bias.[10] The Appeals Chamber denied the motion in its entirety.
Reasoning
The judges started by announcing that none of them intended to recuse themselves.[11] The Chamber continued by noting that the procedure only provided for the Chamber to decide on the recusal of judges, not outside panels.[12] The Chamber noted that the parties agreed that the judges are free from bias and that this motion was only about the appearance of bias.[13] They rejected any such appearance, as the Chamber has not yet addressed the issues before the court on the appeal.[14] There being no appearance of bias, the Chamber denied the motion.[15]
Separate Opinion of Justice King
Justice King wrote separately outlining his reasons for not recusing himself from the case. He wrote that he did not participate in the decision to sanction Justice Sow, and therefore there was no basis or appearance of bias on his part.[16] Interestingly, the reason he did not participate in the decision is that he felt Justice Sow’s right to a fair hearing were violated.[17]
STL
Prosecutor v. Ayyash, Badreddine, Oneissi & Sabra[18]
Décision Portant sur la Classification de le Requête du Procureur en Amendement du 17 Aout 2012, sur la Requête du Procureur en Modification de la Classification de la Réponse Conjointe de la Défense du 10 Septembre 2012 et sur la Repose Conjointe de la Défense du 11 Septembre 2012
Background
The Prosecution filed an urgent motion to reclassify certain defense responses from public to confidential because the defense made the existence of the original filings.[19] The Defense in turn requested that the Prosecutor file public versions of the underlying material.[20] The Pre-Trial Judge partially granted both requests.
Reasoning
The Pre-Trial Judge started by setting out that if the defense acted outside its rights in making the existence of the underlying litigation public and that if they had wanted to contest the confidentiality of the material they should have filed motions to that effect.[21] Nonetheless, the Prosecutor was ordered file a public version of the underlying materials because of the interest in holding a public trial.[22]
ECCC
Case No. 002[23]
Decision on Reassessment of Accused IENG Thirith’s Fitness to Stand Trial Following Supreme Court Chamber Decision of 13 December 2011
Background
Accused IENG Thirith suffers from “a progressive, degenerative cognitive condition (probably Alzheimers Disease)” which lead the Trial Chamber to find her unfit to stand trial and order her release from custody.[24] This decision was later reversed on appeal to the Supreme Court Chamber, which found that at this stage unconditional release was inappropriate as the accused’s condition could improve allowing trial.[25] The accused subsequently underwent further treatment for her condition and experts reported on her ability to stand trial.[26] All the experts, except for one, filed their opinions with the court that the accused was not fit to stand trial.[27] The Chamber ordered IENG Thirith’s release.
Reasoning
The Trial Chamber determined that the accused did in fact suffer from cognitive impairment and that there was no reasonable expectation that she would recover sufficiently to ever stand trial.[28] The Chamber dismissed the disagreeing expert’s opinion as unreliable and based on faulty methods.[29] As a consequence of there being no reasonable expectation that the accused would become fit for trial, the Chamber ordered her release.[30] To do otherwise would violate international law regarding indefinite detention.[31] The Prosecution requested that her release be subject to certain conditions, but the Chamber disagreed given the accused’s mental state and inability to willingly violate the orders.[32] The Chamber therefore ordered they case against her indefinitely stayed and her unconditional release.[33]
International Human Rights Law
ECtHR
Nada v. Switzerland[34]
Grand Chamber Judgment
Background
The case involved a man of dual Egyptian/Italian nationality that lived in Capione d’Italia (an Italian enclave completely surrounded by Switzerland) who after 2001 was placed on a terrorist no travel list by the United Nations Security Council. He was denied the ability to exit the enclave even after the Swiss authorities determined that the allegations against him (that led to his inclusion in the no travel list) were unfounded. Switzerland’s positions was that while his name was on the UN list, there was nothing they could do because of the obligation under Article 25 of the UN Charter carry out the decisions of the Security Council. The Court found a violation of the rights to respect for private and family life and the right to an effective remedy.
Reasoning
The Court reiterated that a State was entitled, as a matter of well-established international law and subject to its treaty obligations, to control the entry of non- nationals into its territory. The Convention did not guarantee the right of an alien to enter a particular country.
However, the Federal Court itself had found that the measure in question constituted a significant restriction on Mr Nada’s freedom, as he was in a very specific situation on account of the location of Campione d’Italia, an enclave surrounded by the Swiss Canton of Ticino. Agreeing with that opinion, the Court observed that the measure preventing Mr Nada from leaving the enclave for at least six years was likely to make it more difficult for him to exercise his right to maintain contact with other people living outside the enclave. There had thus been an interference with the applicant’s right to respect for his private and family life.
The aim of the restrictions was to prevent crime and, as the relevant Security Council resolutions had been adopted to combat international terrorism under Chapter VII of the United Nations Charter, they could also contribute to Switzerland’s national security and public safety.
As to the necessity of the measures, the Court was prepared to take account of the fact that the threat of terrorism was particularly serious at the time of the adoption of the resolutions imposing the sanctions. However, the maintaining or reinforcement of those measures had to be justified convincingly.
It was established that the applicant’s name had been added to the United Nations list on the initiative of the USA, not that of Switzerland. In any event, it was not for the Swiss authorities to approach the Sanctions Committee to trigger the delisting procedure, Switzerland not being the State of the applicant’s nationality or residence. However, it did not appear that Switzerland had ever sought to encourage Italy to undertake such action or to offer it assistance for that purpose. The Swiss authorities had merely suggested that the applicant contact the Italian Permanent Mission to the United Nations.
In conclusion, the Court considered that the Swiss authorities had not sufficiently taken into account the realities of the case, especially the geographical situation of the Campione d’Italia enclave, the duration of the measures imposed or the applicant’s nationality, age and health. As it had been possible for Switzerland to decide how the Security Council resolutions were to be implemented in its legal order, it could have been less harsh in imposing the sanctions regime on the applicant.
The Court observed that Switzerland could not simply rely on the binding nature of the Security Council resolutions, but should have taken all possible measures, within the latitude available to it, to adapt the sanctions regime to the applicant’s individual situation. As Switzerland had failed to harmonise the international obligations that appeared contradictory, the Court found that there had been a violation of Article 8.
[1] IT-09-92-T, 14 September 2012.
[2] Ibid. at ¶¶ 1-2.
[3] Ibid. at ¶ 3.
[4] Ibid. at ¶¶ 6-7. The Chamber did not decide on whether to admit the testimony as an expert report and will defer that decision until a later date.
[5] Ibid. at dissent, p. 1.
[6] Ibid. at p. 2.
[7] Ibid. at pp. 2-3.
[8] SCSL-03-01-A, 13 September 2012.
[9] Ibid. at ¶¶ 4-5.
[10] Ibid. at ¶ 7.
[11] Ibid. at ¶ 21. It is interesting to note that Judge King filed a separate opinion on why he did not recuse himself.
[12] Ibid. at ¶ 23.
[13] Ibid. at ¶ 27.
[14] Ibid. at ¶¶ 28-29.
[15] Ibid. at ¶ 34.
[16] Seperate Opinion at ¶¶ 8-10, 12.
[17] Ibid. at ¶ 8.
[18] STL-11-01/PT/PTJ, 14 September 2012.
[19] Ibid. at ¶¶ 1, 6.
[20] Ibid. at ¶ 9.
[21] Ibid. at ¶¶ 12-14.
[22] Ibid. at ¶¶ 16, 18.
[23] Case File No. 002/19-09-2007/ECCC/TC, 13 September 2012.
[24] Ibid. at ¶ 2.
[25] Ibid. at ¶ 3.
[26] Ibid. at ¶¶ 4-7.
[27] Ibid. at ¶¶ 8-13.
[28] Ibid at ¶ 24.
[29] Ibid at ¶ 25.
[30] Ibid. at ¶¶ 26-30.
[31] Ibid. at ¶ 31.
[32] Ibid at ¶¶ 32-37.
[33] Ibid. at ¶¶ 38-40.
[34] Application no. 10593/08, 12 September 2012. Most of the text is taken from the press release.
Filed under Weekly Review
Review of International Tribunal Decisions for the week of September 3, 2012
This week’s review has decisions from the International Criminal Tribunal for the Former Yugoslavia (ICTY), the Special Court for Sierra Leone (SCSL) and the International Criminal Court (ICC). The decisions deal with motions for a new trial, confidential communications, disclosure and filing requirement. Of particular interest is the SCSL decision on the role of a public defence office at an international criminal tribunal.
International Criminal Law
ICTY
Prosecutor v. Karadžić[1]
Decision on Accused’s Motion for New Trial for Disclosure Violations
Background
The Accused filed a motion for a new trial on the basis of the cumulative prejudice he allegedly suffered from repeated disclosure violations by the Prosecution.[2] A new trial is requested both as a penalty to the Prosecution and as a remedy for the repeated violations.[3] The Chamber denied the motion.
Reasoning
The Chamber found that the cumulative disclosure violations by the Prosecution have not prejudiced the Accused in part because appropriate remedies (such as temporary stays) have been granted along the way.[4] Other remedies have included witness specific measures and placing obligations on the Prosecution to keep the Chamber informed about the progress of its disclosure.[5] The Chamber found that the Accused was essentially asking to start over and call all the witnesses again even though he has never been able to succeed in a motion to have a specific witness recalled because of disclosure violations.[6] There motion was therefore denied.
SCSL
Independent Counsel v. Bangura, Kargbo, Kanu & Kamara[7]
Decision on Prosecutor’s Additional Statement of Anticipated Trial Issues and Request for Subpoena in Relation to the Principal Defender
Background
The Prosecution filed a motion requesting to subpoena the Principal Defender to give testimony about conversations she had with the defendants.[8] The Defense objected on the grounds that the conversations were privileged.[9] The Single Judge denied the motion.
Reasoning
The Single Judge reasoned that the Principal Defender’s role is comparable to the “traditional lawyer-client relationship”.[10] Therefore the rules on privilege apply.[11] While not in the rules, there are many circumstances where the privilege attaches.[12] This includes situations where the nature of the relationship requires the ability to communicate openly and honestly.[13] A person in custody, as the defendants, has the reasonable expectation of privacy when talking with the Principal Defender.[14] On this basis the Single Judge ruled that the communications were privileged and a subpoena would not issue.[15]
ICC
Prosecutor v. Gbagbo[16]
Order on the re-filing of the “Oberservations de la Défense sur les rapports médicaux prepares par les experts nommés par la Chambre et sur la procédure à suivre”
Background
The defence was ordered to and filed observations on the medical reports as to the accused’s health.[17] The Prosecutor objected because those observations exceeded the allowed page limit.[18] The defence responded that the complexity of the issue dictated that they go more in-depth into the subject and requested a retroactive extension of the word limit.[19] The Single Judge ordered the defence to re-file.
Reasoning
The Single Judge noted that the Appeals Chamber has already held that it is not appropriate to issue retroactive extensions of the word/page limits.[20] Therefore she ordered the defence to re-file in compliance with the word limits set in an earlier decision.[21]
Prosecutor v. Bemba[22]
Decision on “Defence Motion Regarding Prosecution Disclosure”
Background
The Defence filed a motion requesting that the Prosecution conduct a review of all the information in its possession to make sure that it timely discloses necessary evidence; that the Prosecution certify that it has conducted the review and; that the Prosecution be prevented from using any non-disclosed material during the questioning of defence witnesses.[23] The Chamber denied the motion.
Reasoning
The Chamber decided that “additional and late disclosure may be necessary for the prosecution to fulfil its ongoing disclosure obligations pursuant to Article 67(2) and Rule 77. In exceptional cases, a document which was not previously subject to disclosure under those provisions may become disclosable on the basis of the testimony of a witness. In such a situation, the need for disclosure of the document may not have been foreseen before the commencement of the relevant testimony.”[24] While this is true, the Chamber reiterated that it disfavors delayed disclosure, but that it may be necessary at times.[25] The review requested by the defence was therefore found to be unnecessary.[26]
[1] IT-95-5/18-T, 3 September 2012
[2] Ibid. at ¶¶ 1-2.
[3] Ibid. at ¶¶ 3-4.
[4] Ibid. at ¶¶ 14, 17.
[5] Ibid. at ¶¶ 15-16.
[6] Ibid at ¶ 18.
[7] SCSL-11-02-T, 3 September 2012.
[8] Ibid. at p. 1.
[9] Ibid.
[10] Ibid. at ¶ 10.
[11] Ibid. at ¶ 11.
[12] Ibid. at ¶¶ 15-20.
[13] Ibid at ¶ 21.
[14] Ibid. at ¶ 22.
[15] Ibid. at ¶ 23.
[16] ICC-01/11-01/11, 3 September 2012.
[17] Ibid. at ¶¶ 2-4.
[18] Ibid. at ¶ 5.
[19] Ibid. at ¶ 6.
[20] Ibid. at ¶ 10.
[21] Ibid. at ¶ 11.
[22] ICC-01/05-01/08, 3 September 2012.
[23] Ibid. at ¶ 3.
[24] Ibid. at ¶ 11.
[25] Ibid. at ¶ 12.
[26] Ibid. at ¶ 13.
Filed under Weekly Review
TNIL Authors in Other Peoples’ Work
Our very own Roger Lloret-Blackburn was recently cited in the latest edition of the New Zealand Law Review. A link to article can be found here.
Filed under International Human Rights, News and Events
TNIL in the News
On September 4th, 2012 the Russian Legal Information Agency (RAPSI) published a news piece where our own Joseph Davids was interviewed on the subject of potential military intervention in Syria. The article can be found here.
Filed under News and Events
Review of International Tribunal Decisions for the week of August 29, 2012
This week has two decisions from the Special Tribunal for Lebanon (STL) and the European Court of Human Rights (ECtHR). They deal with a request to invalidate the indictment at the STL and the right to certain means of family planning.
International Criminal Law
STL
Prosecutor v. Ayyash, Badreddine, Oneissi & Sabra[1]
Décision Relative à la Requête de la Défense de M. Mustafa Badreddine Sollicitant l’Annulation pour Défaut de Pouvoir de l’Acte d’Accusation du 10 Juin 2011 Confirmé le 28 Juin 2011
Background
Mr. Badreddine’s defense[2] filed a motion requesting that the indictment be dismissed for failure to prosecute.[3] The defense argued that the Trial Chamber is not properly seized of the case.[4] The argument is essentially that all acts taken by the Prosecutor are null and void for failure to renew his mandate when it allegedly expired in 2010.[5] The Pre-Trial Judge denied the motion.
Reasoning
The Judge ruled that the Prosecutor had been properly appointed to his position so that he was in office when the actions being questioned by the defense took place.[6] Given this fact, there was no basis for the defense to attack the validity of the indictment and the motion was denied.[7]
International Human Rights Law
ECtHR
Costa and Pavan v. Italy[8]
Chamber Judgment
Background
Applicants want to have a child by in vitro fertilization (“IVF”), so that the embryo can be genetically screened prior to implantation (preimplantation diagnosis – “PID”). Italian law prohibits PID. It however allows IVF for sterile couples or those in which the man has a sexually transmissible disease4 such as HIV or hepatitis B and C, to avoid the risk of transmitting the infection. On 13 January 2010, for the first time, the Salerno Court authorized a non-sterile couple of healthy carriers of muscular atrophy to use PID. But that was a one-off decision. The court found a violation of Article 8 of the European Convention protecting the right to respect for private and family life.
Reasoning
The Court considered that the applicants’ desire to resort to medically-assisted procreation and PID in order to have a baby that did not suffer from cystic fibrosis was a form of expression of their private and family life that fell within the scope of Article 8. The fact that the law did not allow them to proceed in this manner therefore amounted to an interference with their right to respect for their private and family life which was “in accordance with the law” and pursued the legitimate aims of protecting morals and the rights and freedoms of others.
The Italian Government justified this interference by the need to protect the health of the mother and child and the dignity and freedom of conscience of the medical professions, and to avoid the risk of eugenic abuses. The Court observed first of all that the notions of “embryo” and “child” must not be confused. It could not see how, in the event that the fetus proved to have the disease, a medically-assisted abortion could be reconciled with the Government’s justifications, considering, among other things, the consequences of such a procedure for both the fetus and the parents, particularly the mother.
The Court observed that the inconsistency in Italian law – prohibiting the implantation of only those embryos which were healthy, but authorizing the abortion of fetuses which showed symptoms of the disease – left the applicants only one choice, which brought anxiety and suffering: starting a pregnancy by natural means and terminating it if prenatal tests showed the fetus to have the disease. The Court accordingly considered that the interference with the applicants’ right to respect for their private and family life was disproportionate, in breach of Article 8.
[1] STL-11-01/PT/PTJ, 29 August 2012.
[2] It is important to note that the trial will proceed in absentia and so none of the accused are actually personally participating in the case.
[3] Ibid. at ¶¶ 1-2.
[4] Ibid. at ¶ 2.
[5] Ibid. at ¶ 4.
[6] Ibid at ¶¶ 17-189.
[7] Ibid. at ¶ 20-21.
[8] Application no.54270/10, 28 August 2012. Text is taken from the press release of the court.
Filed under Weekly Review
The {New} International Law 