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 Law

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.

ICC

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.

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[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.

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 Law

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.

ICC

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.

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[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.