Review of International Tribunal Decisions for the week of November 12, 2012

This week’s review has decisions from the International Criminal Tribunal for the Former Yugoslavia (ICTY), the Special Tribunal for Lebanon (STL) and the European Court of Human Rights (ECtHR). It has been a big week for the ICTY with appeals judgments in the Gotovina case and a contempt case. The STL has addressed the nature of interlocutory appeals and the ECtHR addressed the effect of amnesties on subsequent prosecutions for international crimes.

International Criminal Law

ICTY

Prosecutor v. Karadžić[1]

Decision on Motion for Subpoena to Interview Edin Garaplija

Background

The Accused requested an order for a defense interview of Edin Garaplija, a former operative of the ministry of the interior in Bosnia, after he refused the interview on the grounds that he could not remember the events from the war due to trauma.[2] The Accused believes the witness has information that is necessary for his defense.[3] The Chamber denied the motion.

Reasoning

The Chamber reiterated that a subpoena and interview or not necessary where the Accused is already aware of what the witness’ testimony will be.[4] In this case, the Accused is in possession of a video recording of a prior interview given by the witness and so there is no need to order a new interview.[5] In addition, the Chamber noted that a defense interview is not a proper mechanism to try and refresh a witness’ memory.[6]

Prosecutor v. Gotovina & Markač[7]

Judgement (Appeal)

The Appeals Chamber overturned the conviction of Generals Gotovina and Markač for crimes committed during the 1995 Operation Storm in the Krajina region of Croatia. The Chamber found that since the shelling incidents were not in and of themselves criminal, there was no Joint Criminal Enterprise and so the accused were not guilty. A more detailed discussion of this will decision will be posted at a later date.

STL

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

Decision on Appeal Against Pre-Trial Judge’s Decision on Motion by Counsel for Mr Badreddine Alleging the Absence of Authority of the Prosecutor

Background

Counsel for Mr. Badreddine filed an appeal against the Pre-Trial Judge’s dismissed a challenge to the validity of the indictment.[9] The substance of the appeal dealt with the length of the previous Prosecutor’s term.[10] The Appeals Chamber dismissed the appeal as unfounded and without merit.[11] The chamber also addressed the standard of certification.

Reasoning

The Appeals Chamber held that the case-law of the ad hoc tribunals on certification are not relevant before the STL as the Rule governing interlocutory appeals is different.[12] Certification for appeal at the STL is not discretionary once the two cumulative requirements (the issue would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial and an immediate resolution may materially advance the proceedings).[13] The Chamber also instructed the lower chambers to “ascertain the existence of the precise issue” that needs to be resolved on appeal.[14]

International Human Rights Law

ECtHR

Marguš v. Croatia[15]

Chamber Judgment

Background

The case concerned the conviction, in 2007, of a former commander of the Croatian army of war crimes against the civilian population committed in 1991. He complained in particular that the criminal offences of which he was convicted were the same as those which had been the subject of proceedings against him terminated in 1997 in application of the General Amnesty Act.

Reasoning

The Court held in particular: that granting amnesty in respect of crimes against humanity, war crimes and genocide was increasingly considered to be prohibited by international law; and, that the application of the General Amnesty Act to the crimes committed by Mr Marguš constituted “a fundamental defect in the proceedings” for the purpose of Article 4 of Protocol No. 7, which justified a reopening of the proceedings.


[1] IT-95-5/18-T, 15 November 2012

[2] Ibid. at ¶ 1.

[3] Ibid. at ¶¶ 2-3.

[4] Ibid. at ¶ 11.

[5] Ibid. at ¶¶ 11-12.

[6] Ibid. at ¶ 11.

[7] IT-06-90-A, 16 November 2012.

[8] STL-11-01/PT/AC/AR126.2, 13 November 2012.

[9] Ibid. at ¶ 1.

[10] Ibid. at ¶ 2.

[11] Ibid. at ¶ 3.

[12] Ibid. at ¶ 12.

[13] Ibid. at ¶¶ 12-13.

[14] Ibid. at ¶ 13.

[15] Application no.4455/10, 13 November 2012. All text comes from the press release.

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