Review of International Tribunal Decisions for the week of November 19, 2012

This week saw decisions from the International Court of Justice (ICJ), the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Court (ICC) and the European Court of Human Rights (ECtHR). They cover issues of sovereignty over islands, admission of evidence, amicus curiae submissions and the right to a fair trial.

Public International Law

ICJ

Territorial and Maritime Dispute (Nicaragua v. Colombia)[1]

Judgment

The ICJ decided by unanimous vote to reject Nicaragua’s claim to sovereignty over several disputed islands in the Caribbean Sea and instead favoured Colombia’s claim. The issue was decided not by what territories the countries possessed at the time of independence, but based on Colombia’s continual action and presentation that it was the sovereign over the disputed islands, especially considering the lack of any such action on the part of Nicaragua.

International Criminal Law

ICTY

Prosecutor v. Stanišić & Simatović[2]

Decision on Prosecution Motion for Reconsideration of the Decision Denying Admission of D456

Background

The Chamber had denied the admission of a defence exhibit on the grounds that there were problems with the original and the translation.[3] The Prosecution asked for this decision to be reconsidered as those faults had been corrected.[4] The Chamber granted the request.

Reasoning

The Chamber considered that the correction of the previous deficiencies constituted a new fact that could permit reconsideration.[5] The document in question had been examined by several defense witnesses and discussed at length during the proceedings.[6]The Chamber noted that there was no duty to explicitly indicate how an exhibit tendered through a witness is to be used in the party’s case as the witness testimony would give it context.[7] The document in question was also not “new evidence” as it had been discussed at trial.[8] For these reasons, the Chamber found that the accused would not be prejudiced by its admission and reconsidered its prior decision denying admission of the exhibit in question.[9]

ICC

Prosecutor v. Katanga & Chui[10]

Décision relative à la mise en œuvre de la norme 55 du Règlement de la Cour et prononçant la disjonction des charges portées contre les accuses

The Trial Chamber decided to sever the charges against the two accused and will issue a decision on the guilty or innocence of Mr. Chui pursuant to article 74 of the Rome Statute on 18 December 2012.

The Chamber that the mode of criminal responsibility charged against Mr. Katanga may be subject to modification also issued a notification. All participants were asked to submit their observations on this possibility by 15 January 2013.

Prosecutor v. Ruto & Sang[11]

Decision granting the application of Kituo Cha Sheria for leave to submit observations

Background

Kituo Cha Sheria (Center for legal empowerment) submitted an application to provide observations on the methods of victim participation in this case.[12] The Chamber granted the request.

Reasoning

“The Chamber notes that Kituo is a non-governmental human rights organization operating in Kenya. “Shortly after the 2007/2008 post election violence (“PEV”), Kituo designed a project aimed at facilitating effective community participation in the Truth Justice and Reconciliation Process in Kenya, as well as victims’ participation in the ICC process. As part of the aforementioned project, Kituo is currently undertaking outreach to 2007/2008 PEV victims with the aim of promoting victim participation in the ICC process.” ^° Kituo is in contact with victims who appear to be within the scope of the Muthaura and Kenyatta case and it is “conducting awareness sessions on victims’ participation in ICC proceedings”. Given its specialised knowledge and experience, the Chamber considers that Kituo is an appropriate organization to submit observations as amicus curiae in relation to the implementation of the system of victims’ representation and participation.”[13]

International Human Rights Law

ECtHR

Harabin v. Slovakia[14]

Chamber Judgment

Background

The case concerned the imposition of a disciplinary sanction on the President of the Slovak Supreme Court for having prevented an audit at that court, and in particular his complaint that several of the judges who decided his case were biased. The Court found a violation of the right to a fair trial.

Reasoning

Under Slovak law, disciplinary proceedings against the president of the Supreme Court could only be decided by a majority of the plenary of the Constitutional Court. Faced with a situation where the parties challenged seven of its thirteen judges for bias, the Constitutional Court had had to balance between two interests, namely the need to respond to the requests for exclusion of those judges and the need to maintain its capacity to determine the case.

The Court [the European Court of Human Rights] considered that in that balancing exercise the Slovak Constitutional Court had failed to take an appropriate stance under Article 6. Firstly, two of the judges challenged by Mr Harabin and two of the judges challenged by the Minister had been excluded in earlier set of proceedings involving Mr Harabin. Given that doubts were therefore likely to arise as to their impartiality, the Constitutional Court should have – but had not – given convincing arguments as to why the challenges could not be accepted in the disciplinary proceedings. Secondly, the Constitutional Court had not taken a stand as to whether any of the other reasons evoked by the parties would have justified the respective judges’ exclusion.

Only after answering the parties’ arguments and establishing whether or not the challenges to the judges were justified could the question have arisen as to whether there was any proclaimed need and justification for not excluding any of the judges. The need to maintain the Constitutional Court’s capacity to determine the case could therefore not justify the participation of the judges in respect of whose alleged lack of impartiality the Constitutional Court had failed to convincingly dissipate doubts.


[1] Judgment of 19 November 2012. All in formation was taken from the court’s press release.

[2] IT-03-69-T, 21 November 2012.

[3] Ibid. at ¶ 1.

[4] Ibid. at ¶ 2.

[5] Ibid. at ¶ 6.

[6] Ibid. at ¶ 7.

[7] Ibid at ¶ 9.

[8] Ibid. at ¶ 10.

[9] Ibid. at ¶ 11.

[10] ICC-01/04-01/07, 21 November 2012. All information in this summary was taken from the English press release.

[11] ICC-01/09-01/11, 15 November 2012.

[12] Ibid. at ¶ 3.

[13] Ibid. at ¶ 8.

[14] Application no. 58688/11, 20 November 2012. All informaiton was taken from the press release.

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