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.
Prosecutor v. Mladić
Decision on the Prosecution Submissions on the Expert Statement of Prosecution Witness Teufika Ibrahimefendić Pursuant to Rule 94 BIS
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. 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. The Chamber, by majority, granted the motion.
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.
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”. 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. He in general disapproves of the “piecemeal” approach of the majority.
Prosecutor v. Taylor
Decision on Charles Ghankay Taylor’s Motion for Partial Voluntary Withdrawal or Disqualification of Appeals Chamber Judges
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. 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. The Appeals Chamber denied the motion in its entirety.
The judges started by announcing that none of them intended to recuse themselves. The Chamber continued by noting that the procedure only provided for the Chamber to decide on the recusal of judges, not outside panels. 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. They rejected any such appearance, as the Chamber has not yet addressed the issues before the court on the appeal. There being no appearance of bias, the Chamber denied the motion.
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. Interestingly, the reason he did not participate in the decision is that he felt Justice Sow’s right to a fair hearing were violated.
Prosecutor v. Ayyash, Badreddine, Oneissi & Sabra
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
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. The Defense in turn requested that the Prosecutor file public versions of the underlying material. The Pre-Trial Judge partially granted both requests.
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. Nonetheless, the Prosecutor was ordered file a public version of the underlying materials because of the interest in holding a public trial.
Case No. 002
Decision on Reassessment of Accused IENG Thirith’s Fitness to Stand Trial Following Supreme Court Chamber Decision of 13 December 2011
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. 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. The accused subsequently underwent further treatment for her condition and experts reported on her ability to stand trial. All the experts, except for one, filed their opinions with the court that the accused was not fit to stand trial. The Chamber ordered IENG Thirith’s release.
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. The Chamber dismissed the disagreeing expert’s opinion as unreliable and based on faulty methods. As a consequence of there being no reasonable expectation that the accused would become fit for trial, the Chamber ordered her release. To do otherwise would violate international law regarding indefinite detention. 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. The Chamber therefore ordered they case against her indefinitely stayed and her unconditional release.
Nada v. Switzerland
Grand Chamber Judgment
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.
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.
 IT-09-92-T, 14 September 2012.
 Ibid. at ¶¶ 1-2.
 Ibid. at ¶ 3.
 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.
 Ibid. at dissent, p. 1.
 Ibid. at p. 2.
 Ibid. at pp. 2-3.
 SCSL-03-01-A, 13 September 2012.
 Ibid. at ¶¶ 4-5.
 Ibid. at ¶ 7.
 Ibid. at ¶ 21. It is interesting to note that Judge King filed a separate opinion on why he did not recuse himself.
 Ibid. at ¶ 23.
 Ibid. at ¶ 27.
 Ibid. at ¶¶ 28-29.
 Ibid. at ¶ 34.
 Seperate Opinion at ¶¶ 8-10, 12.
 Ibid. at ¶ 8.
 STL-11-01/PT/PTJ, 14 September 2012.
 Ibid. at ¶¶ 1, 6.
 Ibid. at ¶ 9.
 Ibid. at ¶¶ 12-14.
 Ibid. at ¶¶ 16, 18.
 Case File No. 002/19-09-2007/ECCC/TC, 13 September 2012.
 Ibid. at ¶ 2.
 Ibid. at ¶ 3.
 Ibid. at ¶¶ 4-7.
 Ibid. at ¶¶ 8-13.
 Ibid at ¶ 24.
 Ibid at ¶ 25.
 Ibid. at ¶¶ 26-30.
 Ibid. at ¶ 31.
 Ibid at ¶¶ 32-37.
 Ibid. at ¶¶ 38-40.
 Application no. 10593/08, 12 September 2012. Most of the text is taken from the press release.