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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