Monthly Archives: December 2012

ICTR Completes its Last Trial

ICTRToday, the ICTR announced its last trial judgment. Below you’ll find a copy of the Prosecutor’s statement on the occassion:

Today the judges of Trial Chamber II of the ICTR presided over by Justice William Sekule unanimously found Augustin Ngirabatware guilty of genocide, direct and public incitement to commit genocide and of rape as a crime against humanity. They sentenced him to 35 years in prison with credit for time served in pre-trial detention. The delivery of judgement today in this case marks a historic occasion and important mile stone in the work of the International Criminal Tribunal for Rwanda (ICTR). For today the Tribunal has completed the trial phase of its mandate. Established by the U.N. Security Council by Resolution 955 of 1994 with the mandate to prosecute persons responsible for genocide and serious violations of international humanitarian law in Rwanda in 1994, the ICTR has over the past eighteen years of its operations indicted 93 persons for genocide, crimes against humanity and war crimes. Of those indicted, 83 have been arrested with 75 of them prosecuted to judgement. 65 of those tried were found guilty and convicted, 9 of them on their guilty pleas. 10 of the accused have been acquitted. 3 died after indictment. The cases of 10 of the accused were referred to national jurisdictions for trial including six of the remaining 9 fugitives. Two indictments were withdrawn. It has taken considerable effort, dedication and diligence by several parties for this outcome amongst them the governments and law enforcement authorities of some 21 countries which have cooperated in ensuring the arrest and transfer of s to the tribunal for trial; over three thousand witnesses from several countries who have despite many challenges, testified in order to assist the tribunal arrive at the truth and render justice; the many more states and national authorities which continue to provide , technical and diplomatic support to the tribunal in its operations particularly Rwanda and Tanzania the host countries of the ICTR; other countries which are providing prison facilities for the convicted prisoners of the court; the United Nations System and Secretariat; the judges and members of staff of the tribunal drawn from over 60 countries and across the major legal, linguistic and cultural traditions of the world who have over the years diligently discharged the responsibilities entrusted to them by the international community. To all of them indeed we owe a debt of gratitude. I would like to record my appreciation and of the senior management of the ICTR of the combined efforts of these partners which have facilitated the achievements of the Tribunal. We hope that the ICTR has through the execution of its mandate made a difference: a difference in ensuring accountability for those who played a leading role in the tragedy of 1994 in Rwanda; in contributing to justice, reconciliation and respect for the rule of law in Rwanda in demonstrating the viability and effectiveness of the process of international legal accountability for international crimes; in providing through its extensive jurisprudence as well as from the lessons learnt from its operations the framework for a more effective system of international criminal justice. Some important work still remains to be done at the ICTR. Mainly in the management of the remaining appeal cases as well as management of legacy and closure related issues. We are confident that these tasks too can be completed before the end of 2014 as stipulated by the U.N. Security Council. The conclusion of the work of this phase of the ICTR or its final closure will not affect the tracking of the remaining fugitives whose cases have now been transferred to the Residual Mechanism. The search for these fugitives will continue and will not cease and until they are found and until they are brought to account before the Mechanism or before an appropriate national jurisdiction for trial. We call on all states to fully cooperate with the Mechanism in securing the arrest and transfer of these fugitives. Thank you.

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Review of International Tribunal Decisions for the week of December 10, 2012

Last week saw very important decisions from the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Court (ICC). In particular, the Appeals Chamber of the ICC issued a decision where it clarified the meaning of an acceptance of the Court’s jurisdiction by a non-State party.

International Criminal LawICTY

ICTY

Prosecutor v. Karadžić[1]

Decision on Appeal From Denial of Judgement of Acquittal for Hostage-Taking

Background

The indictment against the Accused included charges of kidnapping UN personnel who were not taking part in the hostilities during the war in Bosnia in 1995.[2] At the conclusion of the Prosecution’s case, the Accused filed a motion for acquittal inter alia on this count, which the Trial Chamber denied on the grounds that even if they had participated in the fighting the minute they were placed hors de combat they benefited from the prohibition on hostage taking.[3] The Accused appealed arguing that the Trial Chamber erred in affording the UN personnel protection under the Geneva Conventions vis-à-vis this crime.[4] The Appeals Chamber rejected that appeal.

Reasoning

The Appeals Chamber first considered if the UN personnel were covered by the Geneva protections even if they were combatants.[5] The Chamber considered that they were, regardless of whether or not they were combatants as anyone hors de combat is protected against hostage taking.[6] Therefore it was not erroneous for the Trial Chamber to deny his motion for acquittal.

Prosecutor v. Tolimir

Judgment

The Trial Chamber by majority, found the Accused guilty of Genocide, Conspiracy to Commit Genocide, Extermination as a Crime Against Humanity, Murder as a violation of the laws and customs of war, Persecutions as a Crime Against Humanity and Inhumane Acts through forcible transfer as a Crime Against Humanity. The Accused was sentenced to life imprisonment.

ICCICC

Prosecutor v. Gaddafi & Al-Senussi[7]

Decision requesting further submissions on issues related to the admissibility of the case against Saif Al-Islam Gaddafi

The Chamber recalled that admissibility challenges are based on two factors: if at the time of the proceeding on admissibility there is a State investigation or proceeding and if so, if the State in question is unwilling or unable to genuinely carry out that investigation or proceeding.[8] The party raising the admissibility challenge bears the burden of proof.[9] To this end the Chamber observed that it would be useful if everyone involved were aware of what kinds of evidence would be necessary to prove the existence of such proceedings.[10] The Chamber also formulated questions for Libya regarding specific investigative acts that have been taken since the filing of the admissibility challenge.[11] The Chamber also questioned the value and sufficiency of evidence offered by Libya to substantiate its claim that it is investigating Mr. Gaddafi.[12]

Prosecutor v. Gaddafi & Al-Senussi[13]

Order in relation to the request for arrest and surrender of Abdullah Al-Senussi

The Pre-Trial Chamber issued an order to Libya to hand over the accused Al-Senussi after his transfer to Libya.

Prosecutor v. Gbagbo[14]

Judgment on the appeal of Mr Laurent Gbagbo against the decision of Pre-Trial Chamber I on jurisdiction and stay of the proceedings

The Accused filed a challenge to the jurisdiction of the ICC on the grounds that the acceptance of a non-State party of the jurisidiction of the court could only be retroactive and was limited to specific crimes. The Appeals Chamber disagreed and held, importantly giving shape to an otherwise vague term in the Rome Statute that,

The use of the words “crimes referred to in article 5” [in the rules of procedure and evidence] indicates that the term. “crime in question” in article 12 (3) of the Statute refers to the categories of crimes in article 5 of the Statute, i.e. genocide, crimes against humanity, war crimes and the crime of aggression, and not to specific events in the past, in the course of which such crimes were committed.[15]

This holding of the Appeals Chamber also puts to rest the argument made by some that non-States parties (such as a potential Palestine) can refer only the crimes of their opponents to the Court.


[1] IT-95-5/18-AR73.9, 11 December 2012.

[2] Ibid. at ¶¶ 2-3.

[3] Ibid. at ¶ 4.

[4] Ibid. at ¶ 9.

[5] Ibid. at ¶ 15.

[6] Ibid. at ¶ 16-18, 21.

[7] ICC-01/11-01/11, 7 December 2012.

[8] Ibid. at ¶ 6.

[9] Ibid. at ¶ 8.

[10] Ibid at ¶ 10.

[11] Ibid. at ¶¶ 14-15.

[12] Ibid. at ¶¶ 16-18, 20, 22, 25, 28, 31, 32, 41, 48.

[13] ICC-01/11-01/11, 10 December 2012.

[14] ICC-02/11-01/11 OA 2, 12 Decmeber 2012.

[15] Ibid. at ¶ 80.

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Review of International Tribunal Decisions for the week of December 3, 2012

This week’s review has cases from the International Criminal Tribunal for the Former Yugoslavia (ICTY), the Special Court for Sierra Leone (SCSL), the Special Tribunal for Lebanon (STL), the International Criminal Court (ICC) and the European Court of Human Rights (ECtHR). Subjects include orders of safe conduct, certification to appeal, redactions and a lawyer’s duty to report a client’s illegal conduct.

International Criminal LawICTY

ICTY

Prosecutor v. Karadžić[1]

Order for Safe Conduct

The Trial Chamber issued orders of safe conduct for two defense witnesses who are believed to have outstanding arrest warrants in Bosnia.[2] The Chamber noted, “orders for safe conduct are a common device in the practice of the Tribunal for granting witnesses limited immunity under specific circumstances.”[3] In this case the Chamber was convinced that such orders would be in the interests of justice.[4]

Prosecutor v. Stanišić & Simatović[5]

Decision on Stanišić Defence Request for Certification to Appeal Three Trial Chamber Decisions on Prosecution Motions for Admission of Rebuttal Evidence

The Trial Chamber denied a defense request for certification to appeal in part because “the Defence incorrectly premises one argument for certification to appeal on the alleged judicial error concerning the standard for admitting rebuttal evidence. The appropriate forum for arguments on judicial errors is the appeal itself, not the request for certification to appeal.”[6]

SCSLscsl

Prosecutor v. Taylor[7]

Decision on Urgent Motion for Reconsideration or Review of “Scheduling Order”

The Appeals Chamber, by majority, decided to postpone the oral hearing on the Taylor appeal until 22 January 2012 in part because of a pending Rule 115 motion on additional evidence. Justice Fisher dissenting claiming that the hear would only be as to limited issues unrelated to the Rule 115 motion and that there were no legitimate reasons to postpone the hearing.

STLSTL

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

Decision on Sabra’s Second Preliminary Motion Challenging the Form of the Indictment

The Sabra defense filed a motion challenging to form of the indictment, however, the Pre-Trial Judge reserved his decision on the motion until the Prosecution motion to amend that indictment has been decided.

ICCicc

Prosecutor v. Ruto & Sang[9]

Decision on second prosecution application for authorisation of non-standard redactions

Background

The Prosecution requested authorization to disclose documents with redactions not approved in the Chamber’s previous orders on the matter.[10] The Prosecution defended its request stating that the redacted material was not of use to the Defense and that they were need to protect witnesses.[11] The Chamber denied the motion.

Reasoning

The Chamber stated, “it is not for the prosecution to determine, on the expiry of the deadline, that disclosure to the defence of redacted versions of documents, prior to the final deadline of 9 January 2013, would be “inefficient”. The purpose of the Redaction Protocol is to facilitate disclosure of relevant materials to the defence at the earliest opportunity, even if those documents are disclosed with redactions in place that will be lifted at a later date. The Redaction Protocol should not be interpreted as requiring disclosure of entire documents to the defence only at the expiry of the latest deadline set out for disclosure for certain information contained in those documents.”[12] The Chamber therefore did not address the merits of the motion and directed the defense not to respond.[13]

International Human Rights LawECtHR

ECtHR

Michaud v. France[14]

Chamber Judgment

Background

The applicant, Patrick Michaud, is a member of the Paris Bar and of the Bar Council (Conseil de l’Ordre). Since 1991 the European Union has adopted a series of directives seeking to prevent the financial system being used for the purpose of money laundering; these have been transposed into French law. This has resulted, among other things, in an obligation on lawyers to report possible suspicions in this area in respect of their clients where, in the context of their professional activities, they assist them in preparing or carrying out transactions concerning certain defined operations, take part in financial or property transactions or act as trustees. They are not subject to this obligation where the activity in question is related to court proceedings and, in principle, where they provide legal advice. They must submit their reports, as applicable, to the president of the Bar of the Conseil d’Etat and the Court of Cassation or to the president of the Bar of which they are members, it being for the latter to transmit them to the “national financial intelligence unit” (Tracfin).

On 12 July 2007 the National Bar Council (CNB) took a decision adopting a professional regulation which, in particular, reiterated this obligation and imposed on lawyers a duty to put in place internal procedures in respect of the steps to be taken where a particular operation seemed to call for a “declaration of suspicion”. Failure to comply with this regulation renders lawyers liable to disciplinary sanctions.

By a judgment of 23 July 2010, the Conseil d’État dismissed Mr Michaud’s application [to set aside the regulation] and refused to refer the question to the CJEU for a preliminary ruling. The Court found there to be no violation of the European Convention.

Reasoning

The Court noted that the Court of Justice of the European Union had not had an opportunity to rule on the question concerning fundamental rights currently before the Court: on the one hand, the Conseil d’Etat had refused to submit a request for a preliminary ruling on the issue of whether the obligation to “report suspicions” was compatible with Article 8 of the Convention; equally, that question had never previously been examined by the CJEU, either in a preliminary ruling delivered in the context of another case, or on the occasion of one of the various actions open to the European Union’s member States and institutions.

The Court was therefore obliged to note that, in deciding not to request a preliminary ruling, in spite of the fact that the Court of Justice had not yet examined the question concerning Convention rights that was before it, the Conseil d’Etat had ruled before the relevant international machinery for supervision of fundamental rights – in principle equivalent to that of the Convention – had been able to demonstrate its full potential. In the light of this choice and the importance of what was at stake, it concluded that the presumption of equivalent protection was not applicable. The Court was therefore required to determine whether the interference had been necessary.

The Court concluded that the obligation to report suspicions did not represent a disproportionate interference with lawyers’ professional privilege and that there had been no violation of Article 8 by France.


[1] IT-95-5/18-T, 3 December 2012.

[2] Ibid. at ¶¶ 2, 7.

[3] Ibid. at ¶ 4.

[4] Ibid. at ¶ 5.

[5] IT-03-69-T, 6 December 2012.

[6] Ibid. at ¶ 5.

[7] SCSL-03-01-A, 5 December 2012.

[8] STL-11-01/PT/TC, 5 December 2012.

[9] ICC-01/09-01/11, 3 December 2012.

[10] Ibid. at ¶ 3.

[11] Ibid. at ¶ 4.

[12] Ibid. at ¶ 6.

[13] Ibid. at ¶ 8.

[14] Application no.12323/11, 6 December 2012. Text taken from the press release.

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The Appeals Chamber Judgment of Gotovina and Markač

Introduction121107_gotovina_markac_tn

Everyone interested in the field of International Criminal Law is aware of the criticisms leveled at the United Nations ad hoc criminal tribunals for their being “victors’ courts” or “NATO tribunals”. In the case of the International Criminal Tribunal for the Former Yugoslavia, criticism is based on the perception in some quarters that it was created to try and convict Serbs for crimes during the Yugoslav wars of the 1990’s and early 2000’s.[1] The recent appeals judgment in the case against Croatian generals Ante Gotovina and Mladan Markač acquitting them of all the charges is likely to only further this perception.

ICTYThings are not quite that simple however. Like many of the decisions taken by the Tribunal, this one is layered and nuanced. The Appeals Chamber overturned the convictions based on the asserted invalidity of a single finding by the Trial Chamber, that some of the artillery attacks in Operation Storm were unlawful. According to the Majority of the Appeals Chamber (a 3 / 2 split), without unlawful attacks all the other evidence was simply insufficient to sustain a finding of a criminal plan to remove Serbs from the Krajina.[2] Without such a plan any additional crimes could not be attributed to the Accused.[3]

Unfortunately, the acquittal on appeal will likely overshadow the more interesting aspects of the judgment. One issue is the disagreement on the appellate bench over how evidence of the existence of a JCE should be evaluated. A second is the possibility of committing a crime through otherwise legally permissible actions. This post will evaluate these two issues and discuss the differing approaches of the Trial and Appeals Chambers.

Background

Messrs. Gotovina and Markač were charged along with Ivan Čermak of participating in a Joint Criminal Enterprise (JCE) to forcibly remove the Serb population from an area of Croatia known as the Krajina in 1995.[4] The military campaign, dubbed “Operation Storm”, was one of the last stages of croatiathe “Homeland War”[5] fought for control of Croatia. The campaign involved extensive artillery bombardment of Serb cities and towns in the Krajina where a separatist government had proclaimed a “Republic of the Serbian Krajina” (RSK).[6] The initial stages of the campaign were followed by months of mopping up operations where Croatian forces advanced through the area to root out opposition. After “Operation Storm” came to an end the once Serb majority territory had seen that majority flee into neighboring Bosnia and Serbia never to return.[7]

The operation was planned at a meeting on the island of Brioni.[8] During the meeting views were expressed to the effect that the Serbs have to be removed from the Krajina.[9] Leading the meeting was Croatian President Franjo Tuđman who supported this plan.[10] Following the campaign, Mr. Tuđman made derogatory statements about Serbs in general and enacted policies to keep them Serbs from returning.[11] Mr. Gotovina was the military commander for the Split Military District where much of the fighting took place while Mr. Markač was in charge of the Special Police, a military unit under the control of the Ministry of the Interior and responsible for much of the mop up operations.[12] The Trial Chamber had used all of these facts, plus the artillery campaign, to justify its finding that the Accused of unlawfully attacking the Serb population of the Krajina.

The Appeals Chamber Decision

imagesThe Appeals Chamber interpreted the trial judgment of guilt to be constructed around a single central finding: the artillery attacks during Operation Storm unlawfully targeted civilians.[13] Attacks were supposedly illegal because the criminal goal of deporting Serb civilians was to be carried out/executed through those attacks, a finding reinforced by the fact that the Trial Chamber failed to find deportations where the attacks were not considered unlawful.[14] Each town, after all, contained valid military targets.[15]

Both Accused challenged this finding arguing that the “impact analysis” used by the Trial Chamber to determine which attacks were illegal to be unfounded in law or fact.[16] The Appeals Chamber agreed. A majority of the judges noted that the Trial Chamber did not set out how it developed the relevant factors of its “impact analysis” and why that test was applied in a uniform way to all shelling incidents instead of adapting it to each unique incident.[17] By majority, the Appeals Chamber found this to be a serious error, as the test and its application were not “linked to any evidence […] received” by the Chamber leading to a failure “to provide a reasoned opinion”.[18] The Chamber then concluded that all other evidence of illegal attacks had been interpreted in light of the “impact analysis” findings.[19] Considering that the other evidence of illegal attacks was insufficient to confirm such a finding absent the conclusions based on the “impact analysis”, the Appeals Chamber overturned the finding that the attacks were illegal.[20]

A central finding at trial was the Accused’s involvement in a JCE to remove Serbs from the Krajina. If the artillery attacks were not illegally designed to force out the civilian population, the Appeals Chamber found that the remaining evidence of a criminal plot became equivocal.[21] For example, the meeting of the Croatian leadership where the operation was planed and the derogatory statements by Mr. Tuđman were only considered by the Trial Chamber as probative of a shared intent to carry out illegal attacks because the lower chamber had found that the illegal attacks had occurred.[22]

The Appeals Chamber recalled that for a conviction based on a JCE theory, the Accused (and other members of the enterprise) must share a common intent to commit a crime within the jurisdiction of the Tribunal.[23] The Criminal purpose in this case was to remove the Serbs as evidenced by the artillery attacks.[24] Removing this factor, the Appeals Chamber refused to uphold the convictions on a JCE theory.[25] Lacking this nexus, the Appeals Chamber further found that non-artillery crimes were not part of any common plan and so not attributable to the Accused.[26] Therefore all the charges fell because there was insufficient evidence the artillery campaign was unlawful.[27]

Evaluation

Two issues are presented by this acquittal: (1) the limited scope of JCE for the crimes of others and; (2) the proper method for evaluating evidence before the international criminal tribunals. The first goes to the very heart of how international crimes are committed while the second touches on the meaning of evidence and the malleability of facts to fit any narrative.

It was undisputed in this case that the Croatian leadership wanted to take control of the Krajina (that at the time was under the control of a Serb dominated group) and that the leadership at different points espoused anti-Serb views. The only question to be answered, in both the Trial Judgment and the Appeals Judgment, was the motivation for at least some of the artillery campaign. The Trial Chamber concluded that some of the shelling targeted the civilian population based on the above-mentioned views, the pattern of the bombardment and discriminatory policies that prevented the return of Serbs that fled the fighting. The Appeals Chamber invalidated this finding because it found the attack patterns to be inconclusive as to the identity of the intended target. The higher chamber in effect decided that this was the only factor that mattered, as the remaining evidence was “equivocal” absent that finding.

The real question sitting at the bottom of this finding is whether or not an artillery campaign can be legal under International Humanitarian Law and still be used to achieve an internationally prohibited action, such as the deportation of civilians. In their own ways, both chambers answered this question in the negative.[28] No compelling reason presents itself for maintaining this position. If an otherwise legal action is taken for the express and specific purpose of achieving an illegal goal, then it is nonetheless criminal. Any other rule would render the protection of the law meaningless by encouraging the creative use of apparently legal means to commit large-scale harm during times of conflict. International Criminal Law was developed specifically to punish this kind of reprehensible mockery of basic principles of humanity.

The Appeals Chamber’s reasoning focused on one piece of evidence as if it were the only thing considered by the Trial Chamber in convicting the Accused. There was no reason to limit its evaluation in this way. The findings of the Trial Chamber were mutually reinforcing – not one dependent on the other. Discriminatory policies were not evidence of illegal attacks because the illegal attacks happened, but one factor in determining the attacks were international crimes together with the statements of former government officials and the pattern of the artillery bombardment. It is possible that the other two factors would not be sufficient to demonstrate an illicit intent. However, the Appeals Chamber only evaluated them in relation to the disapproved “impact analysis” and what the majority believed their value was in the Trial Judgment.[29] A complete review of these reasons on their own distinct from the “impact analysis” should have been conducted at a minimum.

A different discussion is necessary when it comes to the acquittal of the Accused for additional crimes that occurred during the mopping up operations. If we assume for the moment that the Appeals Chamber was correct to overturn the trial finding of a plan to deport or force out the Serb population of the Krajina, then the acquittal for the other crimes is not only proper but also required. JCE, unlike the dominant doctrine of “control over the crime” at the International Criminal Court, will only hold an accused vicariously responsible for foreseeable crimes if they are in furtherance of an already criminal plot.[30] This is proper as without that underlying criminal plot there is no mens rea, or guilty mind, based on which an accused can be punished. A contrary result would be to expose to international prosecution those who never intended the commission of any crime.


[1] This perception has also been reinforced due to the tribunals declining to open an investigation into alleged NATO crimes committed during the Kosovo intervention. The other UN ad hoc tribunal, the International Criminal Tribunal for Rwanda, suffers from a similar critique in that it has never tried any ethnic Tutsi for alleged crimes during the war in that country.

[2] Ibid.

[3] This is the necessary consequence of how the doctrine of JCE has developed. Unlike the parallel doctrine of “control of the crime” employed by the International Criminal Court, JCE will only hold an accused vicariously responsible for those crimes which are the object or intended means of a criminal plan or those additional foreseeable crimes committed in the furtherance of such an already criminal plan.

[4] Amended Joinder Indictment, IT-06-90-T, 12 March 2008, ¶¶ 12-20.

[5] This is the Croatian name for the part of the war that led to the full independence of Croatia from the Former Yugoslavia.

[6] Appeal Judgment at ¶2, fn. 3.

[7] One reason for the decision not to return was the enactment of discriminatory policies by the Croatian government against Serbs who wished to come back.

[8] Appeal Judgment at ¶ 81.

[9] Ibid. at ¶ 24.

[10] Ibid. at ¶ 23.

[11] Ibid. at ¶ 86.

[12] Ibid. at ¶ 4.

[13] Appeal Judgment at ¶ 24.

[14] Ibid. at ¶ 49.

[15] Ibid. at ¶ 64.

[16] Ibid. at ¶¶ 28-44.

[17] Ibid. at ¶¶ 58, 60.

[18] Ibid. at ¶ 61.

[19] Ibid. at ¶¶ 67-68.

[20] Ibid. at ¶¶ 82-84.

[21] Appeals Judgment at ¶¶ 86-87.

[22] Ibid.

[23] Ibid. at ¶ 89. The plan can also be to commit an action that amounts to a crime (even if not intended as such) or to commit a legal goal with means that include a crime within the jurisdiction of the tribunal.

[24] Ibid. at ¶ 91.

[25] Ibid. at ¶¶ 92-93.

[26] Ibid. at ¶ 94.

[27] Ibid. at ¶ 96.

[28] It is important to note that the Appeals Chamber specifically reserved judgment on this issue in footnote 330. The analysis it gives for finding a lake of illegal deportation in this case indicates that it appears likely that the Appeals Chamber would reach this conclusion.

[29] See, Dissenting opinion of Judge Pocar.

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Review of International Tribunal Decisions for the week of November 26, 2012 (and some from the week before)

This week’s review has cases from the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Court (ICC). It has been an interesting and important week in International Criminal Law. The ICTY issued decisions on the exclusion of evidence, an appeal in a contempt case not to mention the acquittal of all accused in the Haradinaj case. The ICC issued decisions deal with the recategorization of facts, common legal representation of victims and several issues in the Gaddafi case.

International Criminal LawICTY

ICTY

Prosecutor v. Karadžić[1]

Decision On Prosecution’s Motion to Exclude the Evidence of Witness Angelina Pikulić

Background

The Prosecution asked that the majority of the evidence of witness Pikulić be excluded as it did not address the charges and/or was mostly related to crimes committed against Bosnian Serbs (so-call tu quoque evidence).[2] The Chamber denied the motion.

Reasoning

The Chamber agreed with the Prosecution that much of the information contained in the witness’ statement was of a tu quoque nature or otherwise not relevant and would not be tendered into evidence.[3] However, the Chamber ordered the Accused to lead the witness during questioning on the other subjects contained in her statement if he should still wish to call her to testify.[4]

Prosecutor v. Šešelj[5]

Judgement (Appeal)

The Appeals Chamber of the ICTY confirmed the contempt conviction (his third such charge) for publishing material in a book that identified confidential witness identities.

ICCICC

Prosecutor v. Bemba[6]

Decision requesting the defence to provide further information on the procedural impact of the Chamber’s notification pursuant to Regulation 55(2) of the Regulations of the Court

Background

The Chamber had previously notified the participants in the case of the possibility that it would consider an alternate form of knowledge contained in the article of the Statute under which the accused was charged.[7] In other words, the Chamber announced that it was going to consider the facts as establishing a different mens rea than that included in the document containing the charges. Both the Prosecution and the participating victims filed their observations.[8] The Accused filed his observations noting asserting that any such change would require allowing him to inter alia recall prosecution witnesses, additional discovery and a “meaningful time to prepare.”[9] The Chamber could not reach a conclusion on these requests.

Reasoning

“In the present circumstances, in order to give the defence the necessary time and facilities for its preparations and to provide it with the opportunity to question previous witnesses or present new evidence, if required, pursuant to Regulation 55(2) and (3) of the Regulations, the Chamber needs to be provided with more concrete information and relevant justifications, in particular in relation to (i) which prosecution witnesses the defence would intend to recall; and (ii) the envisaged time needed for further defence investigations and preparations.”[10] The Chamber therefore ordered the Accused to file his reasons so that the Chamber could read a substantive conclusion on his requests.[11]

Prosecutor v. Ruto & Sang[12]

Decision appointing a common legal representative

The Chamber considered the applications of two individuals recommended by the Registry to take on the role of Common Legal Representative for Victims, one of which was willing to relocate to Kenya during the trial and the other that was not.[13] The Chamber appointed the candidate who was willing to relocate to Kenya as, according to the Chamber, presence in Kenya would be fundamental to the role of the common legal representative.[14] The Chamber also set out that when the OPCV appears on behalf of the common legal representative during court hearings, the OPCV member need not fulfill the full requirements to be “counsel” before the Court but need only fulfill the requirement to be an assistant to counsel.[15]

Prosecutor v. Gaddafi & Al-Senussi[16]

Decision on the “Submissions of the Libyan Government with respect to the matters raised in a private session during the hearing on 9-10 October 2012”

The vast majority of this decision is redacted making any substantive summary or comment difficult. A major issue that remains clear is that Libya challenged the continued representation of the Accused by the OPCD during the admissibility proceedings. In this regard the Chamber noted,

the Chamber considers that the representation of a suspect by OPCD in admissibility proceedings is intrinsically problematic as it appears to be extremely difficult to dispel confusions in the public perception in relation to the role of OPCD as opposed to the role of the Court. Indeed, under regulation 11 of the Regulations of the Court, the OPCD has a dual status by virtue of which it functions as a “wholly independent office” in its “substantive work”, while falling at the same time within the remit of the Registry of the Court for administrative purposes. In these circumstances, the positions expressed by the OPCD can be easily mistaken for positions of the entire Court and thus have the potential of compromising the perception of the institution’s impartiality.[17]

However, for reasons redacted, the Chamber did not discharge the OPCD from representing the Accused.


[1] IT-05-5/18-T, 27 November 2012.

[2] Ibid. at ¶ 1.

[3] Ibid. at ¶ 5.

[4] Ibid. at ¶ 7.

[5] IT-03-67-R77.3-A, 28 November 2012.

[6] ICC-01/05-01/08, 19 November 2012.

[7] Ibid. at ¶ 1.

[8] Ibid. at ¶¶ 2/3.

[9] Ibid. at ¶ 5.

[10] Ibid. at ¶ 8.

[11] Ibid. at ¶ 9.

[12] ICC-01/09-01/11, 23 November 2012.

[13] Ibid. at ¶¶ 1, 4.

[14] Ibid. at ¶¶ 5-7.

[15] Ibid. at ¶ 8.

[16] ICC-01/11-01/11, 21 November 2012.

[17] Ibid. at ¶35.

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