Review of International Tribunal Decisions for the weeks of October 15 & 23, 2012

This week’s review has decisions form the International Criminal Tribunal for the Former Yugoslavia (ICTY), the Special Tribunal for Lebanon (STL) and the European Court of Human Rights (ECtHR). The range from the legality of the tribunals, protective measures to extradition.

International Criminal Law

ICTY

Prosecutor v. Stanišić & Simoatović[1]

Decision on Serbia’s Requests for Provisional Protective Measures In Relation to Defence Documents

Background

Serbia requested provisional protective measures for several documents in the possession of the defense.[2] Some of the documents were voluntarily provided by Serbia to the defense and some were Serbian documents independently acquitted by the Defense.[3] The Prosecution objected to the request for protective measures for the documents not provided by Serbia on the grounds that the State lacked standing to make the request.[4] The Chamber granted the request for provisional protective measures.

Reasoning

The Chamber noted that neither the rule nor the Appeals Chamber jurisprudence provided for, nor denied, the granting of protective measures for material not supplied by a State but otherwise originating from its official documents.[5] The Chamber then noted that the purpose for the relevant rule was to protect the national security interests of a State and thereby promote cooperation with the Tribunal.[6] However, such an order would apply on to use at the Tribunal and not to the source of material, which could do as it so pleases.[7] With these limits in mind, the Chamber granted the provisional protective measures.

STL

Prosecutor v. Ayyash, Bareddine, Oneissi & Sabra[8]

Decision on the Defence Appeals Against the Trial Chamber’s “Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal”

Background

The Defense challenged the legality of the Tribunal before the Trial Chamber and lost, this is the resulting appeal. The Appeals Chamber also rejected the Defense challenge.

Reasoning

The Appeals Chamber rejected the Defense challenge finding that the UN Security Council created the Tribunal and that such decisions were not reviewable by the Tribunal. This is because the decision was based on “a plethora of complex legal, political, and other considerations” for which no “meaningful standard of review” existed. Furthermore, the existence and means for dealing with a threat to international peace and security “lies in [the Security Council’s] discreation”.

International Human Rights Law

ECtHR

Makhmudzhan Ergashev v. Russia[9]

Chamber Judgment

Background

The case concerned the Russian authorities’ decision to extradite a Kyrgyzstani national, who is an ethnic Uzbek, to Kyrgyzstan. The Court found a violation of the European Convention.

Reasoning

The Court held that, at present, there was a real risk Mr Ergashev would be ill-treated if extradited, in particular in view of the widespread use of torture against members of the Uzbek minority in the southern part of Kyrgyzstan. Given the current situation, it was doubtful that the local authorities could be expected to abide by the central government’s assurances that he would not be ill-treated.

It was the first time the Court examined on the merits the risk of treatment proscribed by Article 3 in Kyrgyzstan, where clashes between ethnic Kyrgyz and ethnic Uzbeks had erupted in 2010.

Smolorz v. Poland[10]

Chamber Judgment

Background

The case concerned a journalist who published a highly critical article on the subject of communist-era architecture in the city of Katowice, Poland. He received a civil penalty for having damaged the good reputation of one of the architects named in the article. The Court found a violation of the applicant’s right to the freedom of expression

Reasoning

The Court held, in particular, that Mr Smolorz and his opponent were public figures who had been engaged in a public debate concerning an issue that could be described as “historical”. The Court found that the Polish courts had demonstrated rigidity and had given insufficient consideration to the context and nature of the disputed article. It also reiterated that the registers of sarcasm and irony were perfectly compatible with journalistic freedom of expression.


[1] IT-03-69-T, 19 October 2012.

[2] Ibid. at ¶¶ 1, 5.

[3] Ibid. at ¶¶ 2-4.

[4] Ibid. at ¶¶ 2, 4.

[5] Ibid. at ¶¶ 13-14.

[6] Ibid. at ¶ 15.

[7] Ibid. at ¶ 16.

[8] STL-11-01/PT/AC/AR90.1, 24 October 2012. These notes are taken from the Headnote of the decision, a more detailed discussion will follow at a later date.

[9] Application no. 49747/11, 16 October 2012. All text is taken from the press release.

[10] Application no.17446/07, 16 October 2012. All text is taken from the press release.

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