Review of International Tribunal Decisions for the week of October 29, 2012

This week’s review has decisions from International Criminal Tribunal for the Former, the Special Tribunal for Lebanon (STL) and the International Criminal Court (ICC). The decisions range from issues dealing with provisional release, trial in absentia and the fitness to stand trial.

International Criminal Law

ICTY

Prosecutor v. Hadžić[1]

Decision on Hadžić’s Urgent Request for Provisional Release

Background

The Accused requested provisional release for a few days in order to attend his mother’s funeral.[2] The Prosecution objected on grounds that he did not meet the grounds for provisional release.[3] The Chamber denied the motion.

Reasoning

The Chamber denied release on the grounds that the Accused evaded arrest for years and that he had significant motives to try and abscond given the seriousness of the charges against him.[4]

STL

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

Decision on Defence Appeals Against Trial Chamber’s Decision on Reconsideration of the Trial In Absentia Decision

Background

The Accused face a trial in absentia and their counsel, with no contact from the Accused, requested that the in absentia decision be reconsidered on the grounds that such a trial prejudiced their clients’ rights. The Appeals Chamber rejected the appeal.

Reasoning

The Appeals Chamber rejected the appeal essentially because the Accused could challenge any eventual conviction, could make themselves known and participate in the trial and that they had received sufficient notification of the trial to participate if they so chose.

ICC

Prosecutor v. Katanga & Chui[6]

Order in relation to the request by duty counsel of DRC-D02-P-0236, DRC-D02-P-0228 and DRC-D02-P-0350 to be transferred to hearings before the Court of Appeals of The Hague

The Chamber requested that two witnesses before the Court be transferred to the Court of Appeals in The Hague in order to attend the appeals in their domestic asylum case.

Prosecutor v. Gbagbo[7]

Decision on Two Defence Requests in Relation to the Hearing Scheduled for 30 October 2012

Background

On 30 October 2012, the Court was to hold a hearing on the continued detention of the Accused.[8] The Accused requested that the hearing be in closed session, that the OPCV be excluded from parts of the hearing and that he be allowed to assent himself.[9] He also requested a postponement of the hearing.[10]

Reasoning

The Single Judge denied the request for postponement due to the fact that the Accused would not suffer any prejudice form holding the hearing as scheduled.[11] The Single Judge, on the other hand, ordered that while the mainstay of the proceedings should be in open session, those parts dealing with sensitive material shall be held in closed session outside the presence of the public and the participating victims.[12] The Judge also authorized the Accused’s absence.[13]

Prosecutor v. Gbagbo[14]

Decision on the fitness of Laurent Gbagbo to take part in the proceedings before this Court

Background

The Accused filed a motion to delay the start of the confirmation of charges hearing on the grounds that he was not fit to stand trial.[15] In the end the Single Judge found the Accused fit to stand trial.

Reasoning

The Single Judge noted that there is no specific provision in the applicable law of the Court that addresses fitness to stand trial, but rather must be consider a part of the fundamental right to a fair trial.[16] Such standards are applicable through Article 21(3) which requires that the Rome Statute be interpreted “consistent[ly] with internationally recognised (sic) human rights” as they “underpin every aspect of the Statute”.[17] In this respect, the Single Judge found that the jurisprudence of the European Court of Human Rights to be particularly on point.[18] That Court noted that in order “effective participation” requires that the accused be able to understand the proceedings and be able to explain to his representation “his version of the events, point out any statements with which he disagrees and make them aware of any facts which should be put forward in his defence (sic).”[19] The ICTY also adopted a similar position.[20] The Single Judge therefore adopted a similar comprehensive factual analysis to evaluate the accused’s ability to participate in the proceedings.[21]

The Single Judge evaluated three medical reports one of which said the Accused was fit to stand trial.[22] However, considering testimony, the Single Judge was convinced that the Accused was fit to stand trial with modifications to procedure to assist him in light of his current medical problems.[23]


[1] IT-04-75-T, 31 October 2012.

[2] Ibid at ¶ 2.

[3] Ibid. at ¶ 3.

[4] Ibid. at ¶ 9.

[5] STL-11-01/PT/AC/AR126.1, 1 November 2012. Details taken from the headnote to the decision.

[6] ICC-01/04-01/07, 17 October 2012.

[7] ICC-02/11-01/11, 26 October 2012.

[8] Ibid. at ¶ 6.

[9] Ibid. at ¶ 8.

[10] Ibid. at ¶ 9.

[11] Ibid. at ¶¶ 12-14.

[12] Ibid. at ¶ 16.

[13] Ibid. at ¶ 17.

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

[15] Ibid. at ¶ 1.

[16] Ibid. at ¶ 43.

[17] Ibid. at ¶ 45.

[18] Ibid. at ¶ 46.

[19] Ibid. at ¶ 47.

[20] Ibid. at ¶ 49.

[21] Ibid. at ¶ 51.

[22] Ibid. at ¶¶ 67-68.

[23] Ibid. at ¶¶ 101-102.

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