Tag Archives: ICTR

The Temptations of International Criminal Justice: Part One – Ukraine

ICCThe International Criminal Court (ICC) – to date the only permanent, multi-lateral institution created to prosecute cases of international crimes – has not had the easiest time of it. In fact, the Court has been plagued by many different accusations regarding its operations. One of the most persistent critiques it that the ICC has an anti-Africa bias.[1]

Since the entry into force of the Rome Statute – the Court’s founding document – on 1 July 2002, the ICC has opened 21 cases arising from 8 situations.[2] All of the accused are from African countries, only two of which not being from sub-Saharan Africa. Further supporting claims of an anti-Africa bias is the fact that the Office of the Prosecutor (OTP) has declined to open investigations into alleged crimes in Venezuela and Palestine – two of the few situations brought to the Court’s attention that are outside of Africa.[3] In the last weeks the Court has received, and the OTP opened preliminary examinations into, two additional referrals[4] – one referring to Iraq and the other to Ukraine.

UN Security CouncilThese two situations provide a tempting opportunity for the ICC to show that it is willing not only to take on cases outside of Africa, but also cases that involve potential allegations against government officials of the great powers – States with permanent seats on the United Nations Security Council (UNSC). Notwithstanding the need for the ICC to branch out and take on cases arising from events in locations other than Africa, and to challenge the great powers, the Court would do well to steer clear of both these situations. In the coming weeks I will write more about this subject. For now, this first post will discuss the situation in Ukraine.

The Situation in Ukraine

Recent events in Ukraine have been making international news for some time. The current round of troubles began with the street protests leading to the occupation of Maidan square by “pro-western” protestors in November of last year. The protests, at times violent, arose from the refusal of then president Yanukovych to sign an agreement with the European Union that would have led to greater ties between the regional block and Ukraine. He chose instead to pursue closer ties with Russia.[5] The protests escalated until February of this year with the overthrow of the Yanukovych government and his subsequent flight to Russia. The new regime in Kiev immediately began to have problems in the east of the country where there is a majority of ethnic Russians. These troubles have led to the annexation of Crimea by Russia and violent unrest in eastern Ukraine that has seen claims of criminal behavior by both sides.[6] While the new government in Kiev is supported by the West, Russia has supported – to an extent that is not entirely clear – separatists in the East.

Allegations have been made that the Yanukovych government illegally targeted civilians during the protests leading to his ouster in a way that amounts to the commission of international crimes. After the fall of his government, there have been allegations of crimes being committed against Russian speakers by those associated with the new regime that could in turn amount to international crimes.

This context is important in order to understand the scope of the referral by the new regime in Kiev, regardless of the veracity of either side’s claims of crimes by their opponents.

Ukraine’s Acceptance of Jurisdiction

The authorities in Kiev referred the situation in Ukraine from 21 November 2013 to 22 February 2014, covering only the period of the street protests in the capital that led to the overthrow of the Yanukovych government.[7] In effect, the authorities in Kiev have made a referral (technically an acceptance of jurisdiction pursuant to Article 12(3) of the Rome Statute) that would de facto only expose their political rivals to prosecution – a mighty tool in the continuing conflict ravaging that country. The OTP has since announced that it is conducting a preliminary evaluation of the situation.[8]

A One-Sided Referral

Kiev’s clever limitation of their referral would not be the first time that the ICC had to deal with a situation where the referring government wanted to encourage the Court to move against its opponents without risking prosecution of regime members. In the situation concerning the Lord’s Resistance Army (LRA), Uganda tried to refer only the crimes of the insurgent group and not those allegedly committed by government militias and armed forces. The OTP however decided that a referral of a situation to the ICC is ipso facto a referral of all crimes committed by either side of the conflict in question. In other words, States cannot just refer the crimes of their opponents. However, this was a case of the government trying to exclude liability arising out of contemporaneous acts to those that they were trying to refer to the Court. The situation in Uganda was an ongoing insurgency that saw attacks by the LRA and reprisals by government forces over a period of time.

The situation in Ukraine is different in at least one fundamental way. Here, the crimes allegedly committed by one side predominately occurred during the timeframe of the referral to the Court, while the crimes allegedly committed by the new government would have occurred after that time period. Kiev’s acceptance of jurisdiction poses the same dilemma as that of Uganda’s referral as to the one-sidedness of the prosecutions sought by the Court. Of course there are crucial differences, not the least of which is the fact that Uganda is a State party to the Rome Statute, so that there is no question of jurisdiction over crimes outside the scope of the referral in that case. Ukraine of course is not a State party so the ICC would lack jurisdiction outside of any acceptance thereof. In the face of this limitation the ICC should not simply mechanically proceed based on the scope of the referral by Ukraine as doing so would risk irreparable harm to the Court and the nascent permanent system of international criminal justice.[9]

Allowing the new authorities in Kiev to avoid responsibility through the use of a clever temporal limitation of their referral would undermine the message sent by the Court in the situation in Uganda – all sides are equal before the ICC and States cannot use the Court as a weapon against their political and military adversaries. It would send the wrong message about the purpose of international criminal justice if the Court (either the OTP or the chambers when they hear the issue) were to proceed with investigations and/or prosecutions based on such a limited referral or acceptance of jurisdiction. The message would be that if you are able to seize the government of a State, you could refer the crimes of your predecessors to the Court without risking prosecutions for the crimes you commit after taking power. State power as protection from prosecution, one of the central evils that international criminal justice was designed to remove.


Ukraine’s acceptance – or granting – of jurisdiction to the ICC is an attractive opportunity of the Court to show that it is not “anti-African” and to take on one of the great powers, Russia. However, while this may be true, the referral is also dangerous in that it could set a precedent on how to arrange the prosecution of political enemies before an international body thereby rendering the ICC nothing more than a pawn in the game of international Real Politick. The OTP and the Court as a whole must be careful not to allow this important institution to become anything other than an agent of justice by investigating and prosecuting crimes committed by all sides to a conflict, not just those that may have committed crimes first (or last). The failure of the ICC to successfully deal with this referral is nothing less than a mortal threat to the credibility of international criminal justice.

[1] See, e.g., http://iccforum.com/africa; http://www.gulf-times.com/opinion/189/details/367879/international-criminal-court-is-accused-of-anti-africa-bias; http://sites.thehagueuniversity.com/africans-and-hague-justice/home.

[2] Of the 30 accused before the court of committing international crimes, 8 remain at large (4 in one case alone from 2005), 3 have died before being taken into custody for trial, the charges against 4 were not confirmed, 3 have not been transferred for trial at the Court even though in custody of local authorities, the arrest of 2 was not confirmed, 1 has been acquitted, 7 are on trial or waiting for the confirmation of charges and 2 have been convicted. This is my count based on the current (17 May 2014) list on the ICC website. It may be that some names are no longer listed and my total count is therefore off. Also, I did not count those on trial for offenses against the administration of justice.

[3] See, http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/comm%20and%20ref/Pages/communications%20and%20referrals.aspx.

[4] I am using the term her in a broader sense then the technical one used at the ICC. I mean simply that two new situations have been brought to the attention of the Court.

[5] In the background of this conflict are the divisions in Ukraine between ethnic Ukrainians and ethnic Russians.

[6] See, e.g., http://en.wikipedia.org/wiki/Euromaidan; http://online.wsj.com/news/articles/SB10001424052702303948104579533341029784038.

[7] See, http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr997.aspx.

[8] See, http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr999.aspx.

[9] The Court’s current problems have in no small part led to suggestions of creation another ad hoc court for South Sudan instead of referring the situation to the Court. See,


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Contempt Jurisdiction of the Residual Mechanism

As many know the United Nations ad hoc international criminal tribunals that were created in the 1990’s to prosecute international crimes committed during the Yugoslav wars and the Rwandan genocide are scheduled to complete their work in the near future. However, the judicial work of the tribunals is not finished just because the courts have completed the task of adjudicating allegations of international crimes.[1] There will still be outstanding protective measures for victims and witnesses that will need enforcing. At the same time, it will be necessary for a forum to exist to authorize the publication of information from the trials (confidential exhibits) and the modification of the above-mentioned protective measures. Judges will need to sworn and authorized to rule on these issues and enforce them where necessary. For this reason, the United Nations created the Residual Mechanism on 22 December 2010 and judges were sworn thereafter to hear issues that arise in the future.[2]

The scope of the Residual Mechanism’s jurisdiction on work has already been the subject of argument and decision at the International Criminal Tribunal for the former Yugoslavia (ICTY). On 27 September 2013, Radovan Karadžić (on trial before the tribunal) filed a request with the Tribunal’s president, Judge Theodor Meron, for a special chamber to be formed to consider to appointment of a special prosecutor to investigate the filing of contempt charges against former prosecutor Carla Del Ponte.[3]

The special chamber, consisting of Judges Flügge, Moloto and Hall, noted that the Residual Mechanism’s statute provides that it has jurisdiction over “any person who knowingly and wilfully (sic) interferes or has interfered with the administration of Justice by the Mechanism or the Tribunals, and to hold such person in contempt.”[4] They also noted that according to the transitional arrangements, the Mechanism is the proper forum for contempt proceedings where the indictment is confirmed after the effective date of the mechanism. Considering that The Hague branch of the mechanism is already active, the chamber held that the Mechanism, and not the ICTY, has jurisdiction to entertain the issue of the appointment of a special prosecutor.[5]

This decision is problematic for several reasons, some legal and some based merely in common sense. I shall turn to the latter first.

Common sense dictates that Karadžić’s motion be filed with the appropriate person, whether that be the president of the ICTY or that of the Mechanism. However, in this specific case, Judge Meron is both the president of the ICTY and the Mechanism. Furthermore, the current Registrar of the ICTY also holds the same position at the Mechanism. The proper person received the request and assuming for the moment that the special chamber is correct – and the Mechanism is the proper forum – it should have been within the purview of the Judge Meron to sua sponte correct that error. He did not consider that there was an error and so the matter should have been considered as already decided. Alternatively, as president of the Mechanism, Judge Meron’s choice to appoint those currently sitting international judges to consider the issue should have been valid, especially considering that all the judges on the panel are also serving judges of the residual mechanism. The decision as written does nothing more than unnecessarily prolong the matter by passing the buck back and forth based on a presumed procedural anomaly.

From a legal point of view, the reasons for the special chamber’s decision also show that it is not necessarily correct. It is true that the Mechanism is to have jurisdiction to try those who are on trial for contempt of the tribunal based on indictments confirmed after the start date of the Mechanism.[6] However, no indictment has yet been issued so that the Mechanism does not yet have the competence to hear the issue – outside of independently considering the issuance of an indictment itself.

Furthermore, and here assuming that the Mechanism would have jurisdiction to consider the issuing of a contempt indictment at this point, the jurisdiction of this institution does not itself preclude the jurisdiction of the ICTY to issue the indictment that will result in a trial before the Mechanism. The ICTY is just prevented from carrying out the contempt trial. This could simply be a case of concurrent jurisdiction on the matter. It is proper that the tribunal whose orders were allegedly violated is a better forum to consider the issuance of an indictment for contempt – especially when such power is not statutory but an inherent component of the judicial function.

This, however, is not the understanding of the Mechanism itself. Both the appeals chamber and a single judge have ruled that the Mechanism has the sole authority to consider accusations of contempt before the two ad hoc tribunals.[7] These decisions effectively subtracted from the tribunals the ability to enforce their decisions and order and for reasons not required by the text of the statute and rules.

Given the legal and common sense possibilities of considering the issue of an indictment at the ICTY, there was no reason for the special chamber to decline jurisdiction. By deciding not to decide the substantive issue, the judges of the chamber have done nothing more than delay the issue.

[1] When the tribunals close, the ICTY will no longer have any outstanding indictments. This is not so of the ICTR.

[2] Cite to UNSC Res. 1966 (2010).

[3] ICTY, Prosecutor v. Karadžić, Decision on Jurisdiction Following the Assignment of a Specially Appointed Chamber, IT-95-5/18-T, IT-02-54-T, p. 2 (18 October 2013).

[4] Ibid. citing, article 1(4)(a) of the Statute of the Residual Mechanism.

[5] Ibid.

[6] See, Article 4(2) of the transitional provisions annexed to the statute of the Residual Mechanism.

[7] In re. Deogratias Sebureze & Maximmilien Turinabo, MICT-13-40-A R90 & MICT-13-41-AR90, Decision on Deogratias Sebureze and Miximilien Turinabo’s Motions on the Legal Effect of the Contempt Decision and Order Issued by the ICTR Trial Chamber (20 March 2013) and its subsequent tacit approval on appeal.

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Review of International Tribunal Decisions for the week of May 14, 2012

This week’s review has decisions from the International Criminal Tribunal for the Former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), Special Tribunal for Lebanon (STL), Extraordinary Chambers in the Courts of Cambodia (ECCC), International Criminal Court (ICC) and the European Court of Human Rights (ECtHR). The decisions deal with issues ranging from disqualification of judges to victims participation.

International Criminal Law


Prosecutor v. Mladić[1]

Order Denying Defence Motion Pursuant to Rule 15(B) Seeking Disqualification of Presiding Judge Alphonse Orie and for a Stay of Proceedings

The Accused filed an oversized motion seeking to remove the Presiding Judge of his trial alleging that he is biased.[2] The President of the Tribunal denied the motion after reading the Presiding Judge’s response to the allegations on the grounds that the Accused had failed to meet his high burden of demonstrating bias on the part of the judge.[3] The President of the Tribunal attached a copy of the Presiding Judge’s responses to the allegations to the order.


Proseuctor v. Ngirabatware[4]

Decision on Defence Motion for Admission of Written Statements


The Accused filed a motion for the admission of written statements into evidence arguing that the statements were certified and that they did not go directly to the acts of the accused.[5] The Chamber denied the motion.


The Chamber noted that in order to be admissible, they must be associated with a witness who testified before the Tribunal, something that these statements were not.[6] The statements must also not go to the acts or behavior of the Accused.[7] The statements must also have probative value.[8] The Chamber found that the individual statements failed to meet one or both of these criteria.[9]


Prosecutor v. Ayyash, Badreddine, Oneissi & Sabra[10]

Decision on the VPU’s Access to Materials and the Modalities of Victims’ Participation in Proceedings Before the Pre-Trial Judge


The Pre-Trial Judge issued a decision on how individuals granted the status of “victims participating in the proceedings” could do so and on the Registrar’s submission on confidential documents related to the victims.[11]


The Pre-Trial Judge noted that there is nothing in the Rules that entitles the victims to receive “disclosure” material, but only confidential and public filings of the parties.[12] However, Rule 87(A) gives the victims access to the case file which includes such disclosure evidence and materials relied on by the Prosecution in requesting the arrest warrant and indictment.[13] The question was left as to when this should occur, and the Pre-Trial Judge decided that it should happen as soon as practicable after the appointment of victims’’ counsel so that counsel could adequately prepare for the trial.[14] When it comes to materials not included in the case file, the Pre-Trial Judge held that the victims must have access to the information in the same format as it was disclosed to the receiving party, that is, that the victims are entitled to access to disclosure material even absent a Rule to such effect.[15] When it comes to the Victims Participation Unit receiving such material, the Pre-Trial Judge held that the VPU occupies a similar position to that of the Defense Office and so the regime for the later would apply mutatis mutandis to the former.[16] As such, the VPU was not given automatic access to the materials but only a list of materials to be able to make sure the material was received by the victims.[17]


Case 002[18]

Decision on Rule 35 Applications for Summary Action


The Accused filed two applications pursuant to Rule 35 of the internal rules to ask Prime Minister Samdech HUN Sen to refrain from making statements that the accused are guilty of the crimes with which they are charged before the conclusion of the trial.[19] The Accused claims that the statements by the Prime Minister violate his right to be presumed innocent.[20] The Trial Chamber dismissed his first motion as inadmissible and denied the second on the merits.


The Chamber held that the first request was simply an elaboration on prior similar objections that the Chamber had already ruled on and therefore declared it to be inadmissible.[21] However, the Chamber decided to clarify its prior rulings on the inadmissible motion. The Chamber noted that prejudicial statements by government officials about the Accused’s guilt would not influence the work of the Court “will not take into account any public comments on the guilt or innocence of the Accused in reaching its verdict.”[22] Because this fact means that there is no “reason to believe” that there will be interference with the administration of justice, there is no need to continue with Rule 35 proceedings/investigations.[23] The Chamber dismissed the second motion finding that the statements were about the defense team, and not the guilty of the Accused.[24]


Prosecutor v. Katanga & Chui[25]

Decision on the Defence Application for Leave to Appeal the ‘Décision relative à la requête de la Défense de Germain Katanga tendant à l’admission d’extraits du jugement prononcé dans l’affaire Lubanga”


The Accused filed a motion for certification to appeal whether or not the Trial Chamber erred in not allowing the reopening of the evidentiary phase of the trial to admit passages from the Trial Judgment in the Lubanga case.[26] The Chamber denied the motion.


The Chamber considered the request for certification in light of three criteria: (1) whether the motion raised an “appealable issue”; (2) whether the issue would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial and; (3) whether the Chamber thought an immediate resolution by the Appeals Chamber would materially advance the proceedings.[27] The Chamber noted that the Accused did not impugn the legal test used by the Chamber in denying its request to reopen the evidentiary phase of the proceedings but only the determination itself.[28] The Chamber therefore found that there was no appealable issue.[29]

International Human Rights Law


Fernández Martínez v. Spain[30]

Chamber Judgment


The applicant was a former religion teacher in the State public schools who while a priest had been a part of the “Movement for Optional Celibacy” and applied for a dispensation form celibacy, which was granted in 1997 on the terms that no one with such a dispensation should teach religion unless the local bishop approves. That same year, the bishop decided not to renew the applicant’s contract. The local employment tribunal found that this termination was a violation of his right not to be discriminated against and ordered his reinstatement. However, on appeal this decision was reversed. The ECtHR found no violation of the Convention.


The Court considered that the grounds on which Mr Fernández Martínez had not had his contract renewed were of a strictly religious nature. The requirements of the principles of religious freedom and neutrality precluded it from carrying out any further examination of the necessity and proportionality of the decision not to renew his teaching contract. The Court considered that in not renewing Mr Fernández Martínez’s contract, the ecclesiastical authorities had been discharging obligations associated with their religious autonomy. Lastly, since candidates were free to apply for posts as teachers of religious education, it would be unreasonable not to take their religious beliefs into account in the selection process, in order to preserve the right to religious freedom in its collective dimension.

[1] IT-09-92-PT, 15 May 2012.

[2] Ibid. at p. 2.

[3] Ibid. at p. 3.

[4] ICTR-99-54-T, 14 May 2012.

[5] Ibid. at p. 1, ¶ 4.

[6] Ibid. at ¶ 13.

[7] Ibid. at ¶ 15.

[8] Ibid. at ¶ 18.

[9] Ibid. at ¶¶ 24-25, 27, 30-31.

[10] STL-11-01/PT/PTJ, 18 May 2012.

[11] Ibid. at ¶¶ 1-2.

[12] Ibid. at ¶ 70.

[13] Ibid. at ¶¶ 71-72.

[14] Ibid. at ¶¶ 76-78.

[15] Ibid. at ¶ 79.

[16] Ibid. at ¶¶ 89-92.

[17] Ibid. at ¶ 93.

[18] Case File No. 002/19-09-2007/ECCC/TC, 11 May 2012.

[19] Ibid. at ¶¶ 1-4, 23.

[20] Ibid. at ¶ 10.

[21] Ibid. at ¶ 23.

[22] Ibid. at ¶ 27.

[23] Ibid. at ¶¶ 28-32.

[24] Ibid. at ¶ 32.

[25] ICC-01/04-01/07, 14 May 2012.

[26] Ibid. at ¶ 11.

[27] Ibid. at ¶ 13.

[28] Ibid. at ¶¶ 15, 20.

[29] Ibid. at ¶ 21.

[30] Application No. 56030/07, 15 May 2012. All this information was taken from the press release.

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Review of International Tribunal Decisions for the week of May 7, 2012

This week’s review has decisions and judgments from the International Criminal Tribunal for the Former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), Special Tribunal for Lebanon (STL), International Criminal Court (ICC) and The European Court of Human Rights (ECtHR). The ICTY issued a decision on administrative review (a rather terse rebuke of the Registrar), the ICTR issued an appeal judgment in the case against Mr. Ntabakuz, the STL issued a ruling on word limits and the ICC issued a decision on the temporary disqualification of the Prosecutor in the case against Saif Al-Islam Gaddafi. The ECtHR issued a decision against Russia stemming from the unnecessary use of force in preventing a soldier from deserting.

International Criminal Law


Prosecutor v. Karadžić[1]

Decision on the Request for Review of Registrar Decision and for Summary Reversal


The Accused filed a request to have two individuals appointed to his defense team as investigators which were denied by the Registry in single sentences because of their “role during the time relevant to the indictment against you”.[2] The Accused appealed to the Presidency on the grounds that the decision was too vague to satisfy due process.[3] The President of the Tribunal agreed.


The President found that the “failure to explain risks appearing arbitrary, [violated] Karadžić’s right to procedural fairness.”[4] While the Registrar provided further detail in his response to the appeal, “post hoc rationalization is insufficient to demonstrate the propriety of the initial decision. […] As [the President] noted, the two sentences devoted to explaining the Impugned Decision are so general that it is not possible to identify specifically any underlying rationales. […] Administrative decisions are pronouncements of Delphic oracles, and should be comprehensible on their face.”[5] The President also expressed concern about the Registrar attempting to determine the role of particular members of the defense team, especially those with “ancillary” positions such as investigators.[6]


Ntabakuze v. Prosecutor[7]



The Accused was found guilty by the Trial Chamber as a “superior of genocide, crimes against humanity, and serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II for the killings of Tutsi civilians” and sentenced to life imprisonment.[8] On Appeal, he challenged several of the Trial Chamber’s findings and in some cases the Appeals Chamber sustained his appeal and reduced his sentence.


The Accused appealed his conviction arising out of a particular incident claiming that the Trial Chamber erred in determining that his subordinates committed the crimes.[9] The Appeals Chamber found, by majority, that the evidence supported two separate conclusions: that the physical perpetrators were subordinates of the Accused and that they belonged to a different unit.[10] The Appeals Chamber therefore granted the appeal on this point. In his 15th ground of appeal, the Accused complained that the Trial Chamber had convicted him both for “murder” and “extermination” as crimes against humanity because such a conviction is “cumulative”, the Appeals Chamber agreed.[11] As a consequence of granting these grounds of appeal, the Accused’s sentence was reduced to a term of 35 years.


Prosecutor v. Ayyash, Badreddine, Oneissi & Sabra[12]

Decision on Extension of Word Limits for the Filing of Preliminary Motions Challenging Jurisdiction


The several defense teams filed preliminary motions challenging the jurisdiction of the Tribunal, some of which were over the page and word limits proscribed in the Practice Direction on Filing of Documents and containing motions for an extension thereof, leading to their rejection and return by the Registry with instructions to file motions in compliance with the Direction or, alternatively, separate motions for an extension of the page and word limits.[13] The Defense filed said motions and complained about the need to file extension requests separately as inconsistent with the practice at other tribunals.[14] The requests for extension on the jurisdictional challenges were granted.


The Trial Chamber rejected the argument that practice at the ad hoc Tribunals allows for simultaneous filing of an oversize motion and the request for an extension of the word limit as, while it has been allowed, it is a disfavored practice at those institutions.[15] The Chamber went on to say that presenting to oversize motion and the extension request together presents the “Judge or Chamber with a fait accompli” and that filing the request before the deadline “achieves fairness to the opposing parties by allowing them to respond to the application in advance.”[16] The Chamber however, considered that the importance of the motion challenging jurisdiction is important and that more detailed briefs would be of assistance.[17] The Chamber therefore granted, for the most part, the word, page and time limit extensions requested by the Defense.[18]


Prosecutor v. Gaddafi & Al-Senussi[19]

Decision on the request to temporarily suspend the Prosecutor from conducting any prosecutorial activities related to the case pending the determination of the request for disqualification

The appointed defense counsel requested that the Prosecutor be prevented from conducting any investigations and that he be removed from the case for misconduct. The Appeals Chamber summarily dismissed the request for an injunction pending its decision on the substance of the disqualification motion, in which its reasons for denying the injunction will be explained. The Appeals Chamber said that this decision is “without prejudice to the Appeals Chamber’s consideration of the request to disqualify the Prosecutor from participating in the case.” But I bet it is not a good sign.

International Human Rights Law


Putintseva v. Russia[20]

Chamber Judgment


While performing his mandatory military service, Valeriy Putintsev, left the military unit without permission in February 2002. Arrested three days later, he was placed in a disciplinary cell in punishment for absence without leave. During his detention, Mr Putintsev hit a junior sergeant on the head when the sergeant attempted to search him. Following the incident, a medical examination of both men was ordered. While escorting Mr Putintsev from the military hospital back to the detention unit on 15 February 2002, the junior sergeant, in an attempt to prevent him from escaping, fired at Mr Putintsev and wounded him in the buttock. On 27 February 2002, Mr Putintsev died from the gunshot wound. The Court found a violation of the right to life resulting from the killing, but not the insufficiency of the investigation.


The Court was satisfied that the Russian authorities conducted an independent, expeditious and thorough investigation into the incident. However, it found that the legal framework on the use of force to prevent the escape of a soldier had been deficient and that the authorities had failed to minimize recourse to lethal force.

[1] IT-95-5/18-T, 7 May 2012.

[2] Ibid. at ¶ 2.

[3] Ibid.

[4] Ibid. at ¶ 9

[5] Ibid. at ¶ 10.

[6] Ibid. at ¶ 12.

[7] ICTR-98-41A-A, 8 May 2012. All information is taken from the press release.

[8] Ibid. at ¶ 3.

[9] Ibid. at ¶ 14.

[10] Ibid. at ¶ 15.

[11] Ibid. at ¶¶ 23 – 24.

[12] STL-11-01/PT/TC, 8 May 2012.

[13] Ibid. at ¶¶ 2-3.

[14] Ibid. at ¶¶ 4 – 6, 8.

[15] Ibid. at ¶ 11.

[16] Ibid. at ¶ 12.

[17] Ibid. at ¶ 13.

[18] Ibid. at ¶¶ 14 – 17.

[19] ICC-01/11-01/11 OA 3, 11 May 2012.

[20] Application No. 33498/04. All information is taken from the press release.

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Review of International Tribunal Decisions for the week of April 16, 2012

This week was the week of Karadžić at the International Criminal Tribunal for the Former Yugoslavia (ICTY) as all of our decisions from that court come from that case. They range from issues of confidentiality to the right of the Registry to respond to requests for administrative review. The International Criminal Tribunal for Rwanda (ICTR) is back this week with a decision on deferral. The Extraordinary Chambers in the Courts of Cambodia (ECCC) dealt with the disqualification of judges and the International Criminal Court (ICC) the appointment of counsel and the employment of interpreters. The European Court of Human Rights (ECtHR) issued numerous decisions ranging from the right to life in conflict situations to the right to life in events that happened before the European Convention came into effect.

International Criminal Law



Prosecutor v. Karadžić[1]

Decision on Motion for Access to Confidential Filing and Decisions in Enforcement Proceedings


The Accused requested access to confidential an inter partes filings in several cases that have already completed.[2] The Prosecution objected to the request arguing that the Accused failed to sufficiently identify the sought material and its purpose.[3] The President denied the motion.


The President noted that enforcement proceedings, unlike the substantive trial, only “address matters related to the enforcement of that convicted person’s sentence” there is no indicated, on its face without more, as to how that information would assist the Accused in his substantive case.[4] Without such a connection, it is inappropriate to grant the motion.[5]

Prosecutor v. Karadžić[6]

Decision on Accused’s Motion for Reconsideration of Chamber’s Decision on Motion to Exclude Intercepted Communications


The Trial Chamber issued a decision on 30 September 2010 denying the Accused’s motion to exclude wiretap evidence that was allegedly obtain in violation of his right to privacy in the 1990’s.[7] The Accused now moves for a reconsideration of this decision on the grounds that the evidence was obtained in violation of the Constitution of Bosnia and Herzegovina and would amount to rewarding the bad behavior of the authorities if the wiretaps could be used in the present proceedings.[8] The Chamber denied the motion.


The Chamber noted that motion “only reiterates the challenge [the Accused] has already raised regarding the alleged illegality of intercepts pursuant to Bosnian law” and that just because evidence was obtained in violation of State law does not mean that it should be excluded from an international criminal trial.[9]

Prosecutor v. Karadžić[10]

Order on Request for Review of Registrar Decision and for Summary Reversal

The Accused filed a request for review of a Registrar decision denying his request to employ two individuals as defense investigators wherein he requested that the Registrar not be allowed to make submission to the President on the matter.[11] The President denied the request to the extent that it was to prevent the Registrar from responding to the request for review and set deadlines for the Registrar to file any submissions and for the Accused to reply thereto.[12]

Prosecutor v. Uwinkindi[13]

“Appeal Chamber Dismisses Uwikindi’s Motion for Stay of Transfer to Rwanda”

The ICTR decided to refer Mr. Uwikindi’s case to Rwanda on 5 April 2012 making him the first person to have a case transferred from the Tribunal to Rwanda. He filed a motion to delay his transfer until his request for reconsideration of the transfer decision is decided.

The Appeals Chamber denied his request finding that it had “already concluded that the Referral Chamber acted within its discretion in distinguishing Mr. Uwinkindi’s case from other cases in Rwanda.” The Chamber also considered “the Defence had failed to show that either the allegations related to the trial of Ms. Ingabire contained in the motion or additional, more detailed submissions with regard thereto would demonstrate a clear error of reasoning in the Appeals Chamber’s decision of 16 December 2011 or require its reconsideration in the interests of justice.”



Case 002

Decsion on IENG Sary’s Appeal Against the Trial Chamber’s Decision on Motions for Disqualification of Judge Silvia Cartwright


The Accused filed a motion relating to meetings between Judge Cartwright and the Prosecution with the Trial Chamber in which the judge is serving.[14] The Trial Chamber decided to treat the motion as one for disqualification of a judge and denied the motion.[15] The Accused appealed and the Supreme Court Chamber rejected the appeal on the merits.


Even though the Trial Chamber treated the original motion as one under Rule 34 on disqualification, instead of one under Rule 35 dealing with interference with the administration of justice, the Supreme Court Chamber decided to treat the appeal as one from a decision on Rule 35 thereby rendering the appeal admissible.[16] The Supreme Court Chamber further held that Rule 35 setting out offenses against the administration of justice applies to the judges of the ECCC.[17] For actions to fall within the ambit of Rule 35 they must be intended to interfere with the administration of justice.[18] The Accused did not alleged that the actions were intended to interfere with the administration of justice, only that they could give an impression of bias.[19] The Chamber held that the meetings themselves do not ipso facto mean there was an attempt to interfere with the administration of justice.[20] Having said this, the Supreme Court Chamber noted that such meetings were not a very good idea and could give rise to the impression of bias.[21]



Prosecutor v. Gaddafi & Al-Senussi[22]

Decision Appointing Counsel from the OPCD as Counsel for Saif Al-Islam Gaddafi


On 3 March 2012, the Office of Public Counsel for the Defense (OPCD) met with Mr. Gaddafi in Libya, at which time he asked the OPCD to either select counsel or help him select counsel and signed a declaration to allow the OPCD to represent his interests until the appointment of counsel.[23]


The Chamber appointed the OPCD to represent the interests of Mr. Gaddafi based on the declaration he signed and the fact that current conditions make it difficult for the OPCD to communicate with Mr. Gaddafi in order to obtain his approval of any counsel that may be selected.[24] The Chamber therefore appointed the OPCD to represent Mr. Gaddafi pursuant to regulation 76(2) in the interests of justice.[25] The Chamber dismissed it for failure to satisfy the requirements of the Rules for disqualification.[26] The Accused argued that the appeal of this dismissal is admissible under rule 104 as an appeal from a rule 35 decision dealing with interference with the administration of justice.[27] The Accused also argued that the meetings between Judge Cartwright and the Prosecution have no legal basis and therefore were impermissible.[28] The Supreme Court Chamber held the appeal was inadmissible.

Prosecutor v. Nourain & Jamus[29]

Order on the Recruitment of Zaghawa Language Assistants by the Prosecution

The Accused objected to the Prosecution hiring of particular Zaghawa speakers as assistants because those same individuals had acted as interpreters during privileged telephone calls between the Accused and their counsel and so were privy to confidential information.[30] The Registry responded that the dearth of Zaghawa language assistants would threaten the Registry’s ability to provide interpretation at trial.[31] The Prosecution submitted that it would not hire the individuals in question.[32] Since the Prosecution decided not to hire the interpreters, the Chamber dismissed the motion as moot.[33]

International Human Rights Law



Estamirova v. Russia[34]

Chamber Judgment


The applicant, Sovman Estamirova, is a Russian national who was born in 1959. At the time of the events she lived in Argun; she currently lives in Noybera. Both towns are in the Chechen Republic. Her case concerned the killing of her husband, Asradiy Estamirov, born in 1957, on 5 January 2001 during an intense exchange of fire between a military convoy and unidentified people, while he happened to be standing at a street corner in Argun. The investigation into his death, still in progress, has so far failed to identify those responsible. The Court held that there was no violation of Article 2 right to life, however there were violations regarding the applications right to an adequate investigation and just satisfaction.


Ms Estemirova’s husband had been shot as a result of an exchange of fire between a military convoy and unidentified people. There had been no direct witnesses to the incident. Nor was there material evidence to prove whether the bullet which had caused her husband’s death had been fired from a weapon belonging to the military or to the unidentified group. The Court could not therefore conclude “beyond reasonable doubt” that Asradiy Estamirov had been shot by the Russian military. There had therefore been no violation of Article 2 as concerned the killing of Asradiy Estamirov.

The Court found, however, that there had been a violation of Article 2 concerning the authorities’ failure to conduct an effective investigation into the circumstances in which Asradiy Estamirov had died. Notably, numerous essential steps had not been taken such as questioning the head of the military convoy, the senior drivers and other servicemen. There had also been a delay of more than eight years in carrying out a ballistic expert examination to identify the firearms used during the incident. Moreover, the investigation had been suspended and resumed on a number of occasions with lengthy periods of inactivity and, although Ms Estemirova had been told of those procedural steps, she had not been informed of any significant developments.

Based on the ineffective criminal investigation, the Court found a violation of the right to an effective remedy.

Grudić v. Serbia[35]

Chamber Judgment


The case concerned complaints by two Serbians of Bosniak origin about prolonged non-payment of their disability pensions.


The retirement fund based its decisions to suspend the proceedings in which the applicants claimed the resumption of their pension payment on the basis of the Opinions of the Ministry for Social Affairs and the Ministry for Labour, Employment and Social Policy of March 2003 and June 2004 respectively, which apparently had never been published in the official gazette. At the same time, the Constitutional Court had held that such opinions did not amount to legislation but were merely meant to facilitate its implementation. Furthermore, the Supreme Court had specifically noted in its Opinion of 15 November 2005 that the recognised right to a pension could only be restricted on the basis of Article 110 of the Pensions and Disability Insurance Act. Consequently, the Court concluded that the authorities’ interference with Mr and Mrs Grudić’s possessions had not been in accordance with the relevant domestic law.

Janowiec and Others v. Russia[36]

Chamber Judgment


The applicants are 15 Polish nationals who are relatives of 12 victims of the Katyń massacre. The 12 victims were police and army officers, an army doctor and a primary school headmaster. Following the Red Army’s invasion of the Republic of Poland in September 1939, they were taken to Soviet camps or prisons and were then killed by the Soviet secret police without trial, along with more than 21,000 others, in April and May 1940. They were buried in mass graves in the Katyń forest near Smolensk, and also in the Pyatikhatki and Mednoye villages. The Court determined that it could not reach the merits of the case regarding the obligation to investigate the loss of life, but reached the merits and found violations of the prohibition against inhumane treatment.


Russia ratified the Convention 58 years after the killing of the applicants’ relatives. That period was not only many times longer than the periods which had triggered the State’s obligation to investigate in all earlier cases decided by the Court, but it was excessively long also in absolute terms. Therefore, it was not possible to establish a genuine connection between the deaths and the entry into force of the Convention in Russia.

The Court then examined whether the circumstances of the case could justify a connection between the deaths and the ratification on the basis of the need to ensure the effective protection of the Convention guarantees and values. It found that the mass murder of the Polish prisoners by the Soviet secret police had been a war crime, as the obligation to treat prisoners of war humanely and the prohibition to kill them had clearly been part of international customary law, which the Soviet authorities had had a duty to respect. However, even taking into account that war crimes were not subject to a statute of limitations, no evidence raising new or wider issues had been discovered after the ratification, hence Russia’s obligation to investigate could not be revived. There was therefore no connection on which to base responsibility under the Convention.

This was not true when it came to the treatment of the victims’ relatives. As regards the first group of 10 applicants, the Court found that they had suffered a double trauma: losing their relatives in the war and not being allowed to learn the truth about their death for more than 50 years because of the distortion of historical facts by the Soviet and Polish communist authorities. In the post-ratification period, they had not been given access to the investigation’s materials, nor had they otherwise been involved in the proceedings or officially informed of the outcome of the investigation. What was more, they had been explicitly prohibited from seeing the 2004 decision to discontinue the investigation on account of their foreign nationality. The Court was struck by the apparent reluctance of the Russian authorities to recognise the reality of the Katyń massacre. The approach chosen by the Russian military courts to maintain, to the applicants’ face and contrary to the established historic facts, that their relatives had somehow vanished in the Soviet camps, demonstrated a callous disregard for the applicants’ concerns and deliberate obfuscation of the circumstances of the Katyń massacre. The Russian prosecutors also rejected any attempts to “rehabilitate” those who were executed by clearing their records. The State also had a duty to locate the victims, which it did not do. There was therefore a violation of the duty to humanly treat the family of the victims.

[1] IT-95-5/18-T, 17 April 2012.

[2] Ibid. at p. 1.

[3] Ibid.

[4] Ibid. at p. 2.

[5] Ibid. at p. 3.

[6] IT-95-5/18-T, 18 April 2012.

[7] Ibid. at ¶ 1.

[8] Ibid. at ¶ 2.

[9] Ibid. at ¶¶ 5-6.

[10] IT-95-5/18-T, 20 April 2012.

[11] Ibid. at p. 2.

[12] Ibid.

[13] Unfortunately the decision is not available on the website of the ICTR. All information in this summary is taken from the press release.

[14] Ibid. at ¶ 1.

[15] Ibid. at ¶ 3.

[16] Ibid. at ¶¶ 11-17.

[17] Ibid. at ¶¶ 18-19.

[18] Ibid. at ¶¶ 20-21.

[19] Ibid. at ¶ 22.

[20] Ibid. at ¶ 23.

[21] Ibid. at ¶ 24.

[22] ICC-01/11-01/11, 17 April 2012.

[23] Ibid. at ¶ 3.

[24] Ibid. at ¶ 5.

[25] Ibid. at ¶ 6.

[26] Ibid.

[27] Ibid. at ¶ 4.

[28] Ibid. at ¶ 6.

[29] ICC-02/05-03/09, 18 April 2012.

[30] Ibid. at ¶ 1.

[31] Ibid. at ¶ 3.

[32] Ibid. at ¶ 4.

[33] Ibid. at ¶ 5.

[34] Application No. 27365/07, 17 April 2012. All facts and information are taken from the press release.

[35] Application No. 31925/08, 17 April 2012. All facts and information are taken from the press release.

[36] Application Nos. 55508/07 and 29520/09, 16 April 2012. All facts and information are taken from the press release.

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Review of International Tribunal Decisions for the week of February 27, 2012

The week the International Criminal Tribunal for the Ex-Yugoslavia (ICTY) issued a decision on the reconsideration of prior decisions and the standard for granting certification for appeal. The International Criminal Tribunal for Rwanda (ICTR) issued a decision on orders for cooperation. The International Criminal Court (ICC) issued important decisions on suspensive effect of decisions on appeal and issued another arrest warrant in connection with the situation in Darfur. The Extraordinary Chambers in the Courts of Cambodia (ECCC) issued decisions on civil party status and the Special Tribunal for Lebanon (STL) issued a request for clarification on the applicable law.

International Criminal Law


Prosecutor v. Haradinaj, Balaj & Brahimaj[1]

Decision on Prosecution Motion for Reconsideration of Majority Decision Denying Admission of Document Rule 65 ter Number 3003 or in the Alternative Certification of the Majority Decision with Partly Dissenting Opinion of Judge Delvoie


On 28 September 2011, the Chamber, by majority, denied a Prosecution motion to admit a diary alleged belonging to one of the accused finding, inter alia, that it was not satisfied as to the authenticity of the document or the source of the information contained therein.[2] The Prosecution the filed a combined motion to reconsider and certification for appeal.[3] The Chamber denied the motion.


The Chamber, by majority, held that the Prosecution had failed to raise any new issues indicating a clear flaw in the reasoning of the impugned decision and that the arguments raised by the Prosecution were directed addressed in the impugned decision.[4] The Chamber therefore denied any reconsideration. The Prosecution asked for certification to ensure that the standard for the admissibility of evidence remains consistent throughout the retrial.[5] The Chamber however disagreed finding that the impugned decision did not raise an issue of consistency.[6] The Chamber noted that the standard for granting certification is not whether a party disagrees with the reasoning of a decision, nor even if a particular decision is correctly reasoned.[7]


Prosecutor v. Ngirabatware[8]

Decision on Defence Motion Requesting a Cooperation Order Directed at the Federal Republic of Nigeria


The Accused filed a motion to compel cooperation from Nigeria in order to explore the possibility of calling a Nigerian national as a witness in the place of witness DWAN-112.[9] On 26 January, the Trial Chamber issued an order requesting the Togolese Republic to authorize the travel of witness DWAN-112 to Arusha to testify and that witness’ testimony is expected during the current trial session.[10] The Chamber therefore denied the motion.


The purpose of the request for a cooperation order to Nigeria was to explore possible replacements in the case that witness DWAN-112 would not testify.[11] Seeing as though the witness will testify, the Chamber found there is no need for a cooperation order in this instance.[12]


Prosecutor v. Ruto, Kosgey & Sang[13]

Decision on the Requests of Mr Ruto and Mr Sang for Suspensive Effect


Prosecutor v. Muthaura, Kenyatta & Ali[14]

Decision on the Requests of Mr Kenyatta and Mr Muthaura for Suspensive Effect


On 23 January 2012 Pre-Trial Chamber II issued decisions confirming the charges in both the above-mentioned cases finding that the cases were admissible and that the Court had jurisdiction.[15] The Accused appealed the confirmation decision and requested that the proceedings be suspended until the Appeals Chamber has decided on the jurisdictional and admissibility issues.[16] The Appeals Chamber rejected the requests.[17]


The Appeals Chamber recalled that in the past the conditions for granting suspensive effect are “(i) would create an irreversible situation that could not be corrected, even if the Appeals Chamber eventually were to find in favour of the appellant (ii) would lead to consequences that would be very difficult to correct and may be irreversible or (iii) “could potentially defeat the purpose of the appeal.”[18] (internal quotations and ellipses omitted) The Chamber then found that there would be no “irreversible situation” if suspensive effect were not granted.[19]

Prosecutor v. Abdel Raheem Muhammad Hussein[20]

Public Redacted version of “Decision on the Prosecutor’s Application Under Article 58 Relating to Abddel Raheem Muhammad Hussein”

Pre-Trial Chamber II issued an arrest warrant for Abdel Raheem Muhammad Hussein in connection to events for which the Chamber had already issued arrest warrants against Omar Hassan Ahmad Al Bashir, Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman.[21]


Case 003[22]

Order on the Reconsideration of the Admissibility of the Civil Party Application of Robert Hamill


The International Reserve Co-Investigating Judge entertained a motion (apparently without engaging the National Co-Investigating Judge) to reconsider the civil party application of Robert Hamill whose brother was killed by the Khmer Rouge. He granted the motion and ordered that Mr. Hamill be given access to the case file.


The interesting part of this decision is not that reasoning for granting the motion, but the Judge’s reasoning for assuming the authority to do so. He cites an “opinion” of two judges of the Pre-Trial Chamber, which has a membership of five, as the legal basis for issuing an “order whose admissibility cannot be called into question”.[23] He also claims that he has the full legal power to conduct investigations, something that is doubted by the national component of the Court. The other interesting aspect of this decision will be whether or not Mr. Hamill is actually able to access the case file. Unfortunately, as of this writing, the answer is unclear.

Case 003[24]

Considerations of the Pre-Trial Chamber Regarding the Appeal Against Order on the Admissibility of Civil Party Applicant [Redacted]


Case 004[25]

Considerations of the Pre-Trial Chamber Regarding the Appeal Against Order on the Admissibility of Civil Party Applicant [Redacted]

In both of these cases the Pre-Trial Chamber failed to come to the required majority regarding the appeal of the civil party applications in the above-mentioned cases. In both cases, the national judges set forth that they agreed with the denial of civil party status on because there were not yet any accused in either case. The international judges disagreed, and would have held that appeals be granted. The internal rules set out that in such circumstances (failure to achieve the required majority) the impugned decision stands.


Prosecutor v. Ayyash et. al.[26]

Order on Preliminary Questions Concerning the Crime of Criminal Association Addressed to the Appeals Chamber Pursuant to Rule 68(G) and 71(A)(ii) of the Rules of Procedure and Evidence

On 8 February 2012 the Prosecution filed a request to amend the indictment that raises issues of applicable law that have not already been addressed by the Appeals Chamber.[27] The Pre-Trial Judge felt it was necessary to forward certain legal questions to the Appeals Chamber “in order to ensure compliance of the proceedings with the interests of justice.”[28] The Pre-Trial Judge sought the Appeals Chamber’s view on the elements of the crime of criminal association under the Lebanese criminal code in light of the duty to apply the law in a manner consonant with international principles and rules binding on Lebanon.[29] The Pre-Trial Judge was particularly interested in the difference between the crimes of conspiracy and criminal association and whether they can be cumulatively charged.[30]

[1] IT-04-84bis-T, 27 February 2012.

[2] Ibid. at ¶¶1, 14-15.

[3] Ibid. at ¶ 2.

[4] Ibid. at ¶¶ 14-15.

[5] Ibid. at ¶ 19.

[6] Ibid.

[7] Ibid.

[8] ICTR-99-54-T, 13 February 2012. This decision was publically available until recently (issues with the website).

[9] Ibid. at ¶¶ 1, 7, 11.

[10] Ibid. at ¶¶ 3-5.

[11] Ibid. at ¶ 12.

[12] Ibid.

[13] ICC-01/09-01/11 OA 3 OA 4, 29 February 2012.

[14] ICC-01/09-02/11 OA 4, 29 February 2012.

[15] Ruto, Kosgey & Sang at ¶ 2. All citations will be to the Ruto case as the two decisions are substantively identical.

[16] Ibid. at ¶¶ 3-4.

[17] Ibid. at ¶ 13.

[18] Ibid. at ¶ 9.

[19] Ibid at ¶ 10.

[20] ICC-02/05-01/12, 1 March 2012.

[21] Ibid. at ¶¶ 2-3, 52.

[22] Case File No. 003/07-09-2009-ECCC-OCIJ, 24 February 2012.

[23] Ibid. at ¶ 2.

[24] Case File No. 003/07-09-2009-ECCC/OCIJ (PTC 01), 28 February 2012.

[25] Case File No. 004/07-09-2009-ECCC/OCIJ (PTC 01), 28 February 2012.

[26] STL-11-01/PT, 2 March 2012.

[27] Ibid. at ¶ 6.

[28] Ibid. at ¶ 9.

[29] Ibid. at ¶¶ 13- 14.

[30] Ibid. at ¶¶ 15-16.

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