Tag Archives: ICTY

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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Charles Taylor’s Conviction Upheald on Appeal

TaylorYesterday, 27 September 2013, the Appeals Chamber of the Special Court for Sierra Leone upheald former Liberian President Charles Taylor’s conviction and 50 year prision sentence for 11 counts of war crimes and crimes against humanity.

This judgment is interesting for its apparant departure from the recent jurisprudence of the International Criminal Tribunal for the Former Yugoslavia, however, this aspect will have to be analyzed in greater detail. For now, you can find the judgment here.

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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


Prosecutor v. Karadžić[1]

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


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.


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


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.


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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The Appeals Chamber Judgment of Gotovina and Markač


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.


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]


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


Prosecutor v. Karadžić[1]

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


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.


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.


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


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.


“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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Review of International Tribunal Decisions for the week of November 12, 2012

This week’s review has decisions from the International Criminal Tribunal for the Former Yugoslavia (ICTY), the Special Tribunal for Lebanon (STL) and the European Court of Human Rights (ECtHR). It has been a big week for the ICTY with appeals judgments in the Gotovina case and a contempt case. The STL has addressed the nature of interlocutory appeals and the ECtHR addressed the effect of amnesties on subsequent prosecutions for international crimes.

International Criminal Law


Prosecutor v. Karadžić[1]

Decision on Motion for Subpoena to Interview Edin Garaplija


The Accused requested an order for a defense interview of Edin Garaplija, a former operative of the ministry of the interior in Bosnia, after he refused the interview on the grounds that he could not remember the events from the war due to trauma.[2] The Accused believes the witness has information that is necessary for his defense.[3] The Chamber denied the motion.


The Chamber reiterated that a subpoena and interview or not necessary where the Accused is already aware of what the witness’ testimony will be.[4] In this case, the Accused is in possession of a video recording of a prior interview given by the witness and so there is no need to order a new interview.[5] In addition, the Chamber noted that a defense interview is not a proper mechanism to try and refresh a witness’ memory.[6]

Prosecutor v. Gotovina & Markač[7]

Judgement (Appeal)

The Appeals Chamber overturned the conviction of Generals Gotovina and Markač for crimes committed during the 1995 Operation Storm in the Krajina region of Croatia. The Chamber found that since the shelling incidents were not in and of themselves criminal, there was no Joint Criminal Enterprise and so the accused were not guilty. A more detailed discussion of this will decision will be posted at a later date.


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

Decision on Appeal Against Pre-Trial Judge’s Decision on Motion by Counsel for Mr Badreddine Alleging the Absence of Authority of the Prosecutor


Counsel for Mr. Badreddine filed an appeal against the Pre-Trial Judge’s dismissed a challenge to the validity of the indictment.[9] The substance of the appeal dealt with the length of the previous Prosecutor’s term.[10] The Appeals Chamber dismissed the appeal as unfounded and without merit.[11] The chamber also addressed the standard of certification.


The Appeals Chamber held that the case-law of the ad hoc tribunals on certification are not relevant before the STL as the Rule governing interlocutory appeals is different.[12] Certification for appeal at the STL is not discretionary once the two cumulative requirements (the issue would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial and an immediate resolution may materially advance the proceedings).[13] The Chamber also instructed the lower chambers to “ascertain the existence of the precise issue” that needs to be resolved on appeal.[14]

International Human Rights Law


Marguš v. Croatia[15]

Chamber Judgment


The case concerned the conviction, in 2007, of a former commander of the Croatian army of war crimes against the civilian population committed in 1991. He complained in particular that the criminal offences of which he was convicted were the same as those which had been the subject of proceedings against him terminated in 1997 in application of the General Amnesty Act.


The Court held in particular: that granting amnesty in respect of crimes against humanity, war crimes and genocide was increasingly considered to be prohibited by international law; and, that the application of the General Amnesty Act to the crimes committed by Mr Marguš constituted “a fundamental defect in the proceedings” for the purpose of Article 4 of Protocol No. 7, which justified a reopening of the proceedings.

[1] IT-95-5/18-T, 15 November 2012

[2] Ibid. at ¶ 1.

[3] Ibid. at ¶¶ 2-3.

[4] Ibid. at ¶ 11.

[5] Ibid. at ¶¶ 11-12.

[6] Ibid. at ¶ 11.

[7] IT-06-90-A, 16 November 2012.

[8] STL-11-01/PT/AC/AR126.2, 13 November 2012.

[9] Ibid. at ¶ 1.

[10] Ibid. at ¶ 2.

[11] Ibid. at ¶ 3.

[12] Ibid. at ¶ 12.

[13] Ibid. at ¶¶ 12-13.

[14] Ibid. at ¶ 13.

[15] Application no.4455/10, 13 November 2012. All text comes from the press release.

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