Tag Archives: international criminal law

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.

Conclusion

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

This week has decisions and judgments from the International Court of Justice (ICJ), International Criminal Tribunal for the Former Yugoslavia (ICTY), Extraordinary Chambers in the Courts of Cambodia (ECCC), International Criminal Court (ICC) and The European Court of Human Rights (ECtHR). The subjects range from the principle of extradite or prosecute, to protective measures, appointment of independent counsel, replacing of judges, disclosure and child care.

Public International Law

ICJ

Questions Relating to the Obligation to Prosecute or Extradite

(Belgium v. Senegal)

Background

Former President of Chad Hissène Habré, who has been in exile in Senegal after leaving power, is accused of torture and crimes against humanity by former victims of his 8-year rule.[1] Belgium complained that Senegal was in violation of its legal duties under customary law and the UN torture convention for failing either to extradite or prosecute Mr. Habré, especially after their request that they do so.[2] The Court partially agreed.

Reasoning

The Court, among the many issues it addressed, noted that Belgium alleged violations both of the UN torture convention and customary international law, the first regarding only allegations of torture and the other allegations of crimes against humanity as well as other crimes.[3] These issues being distinct, their propriety before the Court had to be determined individually. The Court found that Belgium’s claim of violations of customary international law would have been premature at the time the application was filed and so were excluded from the present proceedings and so only the issue of the UN torture convention would be addressed.[4]

The Court found that while the obligation to extradite or prosecute in the UN torture convention does not contain a timeframe for implementation, that obligation must be complied with in a reasonable time.[5] The Court found Senegal in violation of its obligation to do so since after Belgium asked for his extradition, neither a prosecution nor extradition took place.[6]

International Criminal Law

ICTY

Prosecutor v. Dragomir Milošević[7]

Decision on Motion Seeking Variation of Protective Measures Pursuant to Rule 75(G)

Background

The Applicant is an attorney assigned to Mr. Milošević for the purposes of investigating the possibility of filing an applicant for review of his client’s conviction based on the potential existence of a “new fact”.[8] The Registry informed the Chamber that while it did not appose the motion, that there should be no misunderstanding of the limited scope of counsel’s appointment and that he should not have access to the information as of right.[9] The Prosecution did not oppose the motion.[10] The Chamber granted the motion.

Reasoning

The Chamber considered that the Applicant had standing to file the motion as his activity and capacity are akin to that of counsel appointed to an accused.[11] The Chamber held that the Applicant demonstrated a legitimate forensic purpose for his request and so should be granted access to confidential inter partes filings and evidence.[12]

Prosecutor v. Popović et. al.[13]

Decision on Prosecution Motion for the Appointment of Independent Counsel to Review Material Potentially Subject to Lawyer-Client Privilege

The Prosecution received material form the Serbian government, some of which appeared to have originated with the defense teams of the Popović et. al. case.[14] The Prosecution filed a request to have an independent counsel appointed to review the material so as to protect any potential lawyer client privilege and to allow the Prosecution to respect its disclosure obligations.[15] The Chamber granted the motion to the extent that it sent a request to the Presidency of the Tribunal to have a Judge appointed to review the material in camera and take appropriate actions in this matter.[16]

Prosecutor v. Stanišić & Simatović[17]

Decision Concerning the Testimony of Witness CW-1

The Chamber reconsidered its decision to call witness CW-1 due to his anticipated intention to invoke his right against self-incrimination and the significant difficulties in arranging for his testimony. As his testimony was not indispensible for the trial, the Chamber decided that calling him would result in unnecessary delay and therefore not be in the interests of justice.

Prosecutor v. Karadžić[18]

Decision on Accused’s Application for Certification to Appeal Denial of Motion for Judgement of Acquittal Under Rule 98 Bis (Count 11)

The Accused file a motion to appeal the denial of his motion for a judgment of acquittal for taking UN peacekeepers hostage on raising the legal issue of whether their participation in the conflict would deprive them of the status of protected persons for the purposes of international humanitarian law. The Chamber agreed that the issue would affect the expeditiousness of the trial and the Appeals Chamber’s resolution would be in the interests of judicial economy.

Prosecutor v. Hadžić[19]

Preliminary Order on Prosecution Motion for Judicial Notice of Adjudicated Facts and Documents

The Pre-Trial Judge ordered the Prosecution to re-file its motion for judicial notice because it did not comply with a previous guidance on the required format for such a motion.

ECCC

Case No. 002[20]

President’s Order on Replacement of Judge

The President of the Supreme Court Chamber appointed the Reserve Judge Florence N. Mumba to sit in the place of Judge Motoo Noguchi, who resigned, pending the appointment of a permanent judge to the Supreme Court Chamber bench in order to assure that cases are heard in a timely manner.

ICC

Prosecutor v. Gaddafi & Al-Senussi[21]

Decision on the OPCD “Request Pursuant to Regulation 23bis of the Regulations”

Background

The OPCD, which is currently representing Mr. Gaddafi, filed its response to Libya’s admissibility challenge wherein it included information that it requested be subject to delayed disclosure and some information that it requested never be disclosed to the public or the other parties to the challenge.[22] The Chamber partially granted the request.

Reasoning

The Chamber found that “the extent of permanent redactions sought by the OPCD defeats the purpose of a response to an admissibility challenge. Indeed, it is the understanding of the Chamber that it may base its decision on the admissibility of the case exclusively on information which is accessible to the other parties to the admissibility proceedings. Accordingly, the OPCD may not rely on submissions and material which are not duly communicated to the other parties.”[23] Accordingly the Chamber ordered the OPCD to re-file its response to the admissibility challenge in a form that can be disclosed to the other parties to the challenge and noted, “for the purposes of its decision on the admissibility of the case it will disregard the Response as filed, and will only take into account the response as re-submitted by the OPCD pursuant to the present decision.”[24]

International Human Rights Law

ECtHR

M.D. and Others v. Malta[25]

Chamber Judgment

Background

The case concerned the inability of a mother and her children to challenge a care order and the subsequent automatic and permanent removal of the mother’s parental rights following her criminal conviction for neglect of her children, and the impossibility for her to challenge that measure before a tribunal. The Court found a violation of Article 6 § 1 (right to a fair trial – access to a court) and Article 8 (protection of family life) of the European Convention on Human Rights.

Reasoning

The Court found that the Article 6 rights of the mother and children were breached because they could not challenge the care order, even if the circumstances changed, and that the mother’s Article 8 rights were breached because she had been automatically and permanently deprived of parental rights after her conviction. It also held under Article 46 (binding force and implementation of judgments), without prejudice to any general measures required to prevent any similar violations in future, that the Maltese authorities had to provide for a procedure allowing the mother the possibility to request an independent and impartial tribunal to assess whether the removal of her parental rights had been justified. It further recommended that Malta take general measures to ensure an effective access to court for persons who have been affected by a care order.


[1]Judgment of 20 July 2012 at ¶¶ 1, 13-14, 16-17.

[2] Ibid. at ¶ 1.

[3] Ibid. at ¶¶ 13-14, 53-54.

[4] Ibid. at ¶ 55.

[5] Ibid. at ¶ 114.

[6] Ibid. at ¶ 117.

[7] IT-98-29/1-A, 16 July 2012.

[8] Ibid. at ¶¶ 2-3.

[9] Ibid. at ¶¶ 5-7.

[10] Ibid. at ¶ 8.

[11] Ibid. at ¶¶ 11-13.

[12] Ibid. at ¶¶ 14-15.

[13] IT-05-88-A, 16 July 2012.

[14] Ibid. at ¶ 2.

[15] Ibid. at ¶ 4.

[16] Ibid. at ¶ 10.

[17] IT-03-69-T, 18 July 2012.

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

[19] IT-04-75-PT, 19 July 2012.

[20] Case File 002/19-09-2007-ECCC-TC/SC(15), 2 July 2012 (posted 17 July 2012)

[21] ICC-01/11-01/11, 18 July 2012.

[22] Ibid. at ¶¶ 1-2, 4-5, 7-9.

[23] Ibid. at ¶ 10.

[24] Ibid. at ¶ 12.

[25] Application no.64791/10, 17 July 2012. All text is taken from the press release.

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Everything to Everyone: the ICC and Our Hopes for a Better World

Modern International Law is in many ways characterized by the proliferation of specialized international judicial institutions with the competence to hear cases involving allegations of violations of human rights, international crimes and issues of general public international law. All the courts have exercised a limited jurisdiction. The courts either have heard cases from or involving States that had accepted the competence of the court or the compulsory nature of the court’s authority was limited to a specific State or incident.[1] Using another rubric, the courts have been limited to deciding single types of cases, interstate disputes (general public international law),[2] human rights violations[3] or criminal cases.[4] Whether intentionally or not, the international community partially departed from this format when it created the International Criminal Court (ICC or Court). This departure has led to calls for the ICC to exert its influence and enter debates that fall outside its central mandate, the prosecution of international crimes. Specifically, there have been calls for the ICC to enter the debate about Palestinian Statehood and for the Court to act as a form of human rights review of criminal proceedings in Libya. By making these requests of the Court, international actors are asking the Court to fill perceived gaps in the international system.

The Issue of Palestinian Statehood

The ICC was created in order to “end impunity” for “the most serious crimes of concern to the international community as a whole.”[5] However, this jurisdiction was not based on concepts of universal jurisdiction,[6] the idea that international crimes can be prosecuted by any criminal court in the world regardless of who committed them, the identity of the victim or the location of the crime.[7] Jurisdiction before the Court is limited to those cases where the crime took place on the territory of a State party or the accused is a national of a State party.[8] A non-State party may also accept the jurisdiction of the Court.[9] The Rome Statute, setting up the Court, does not define the term “State” nor does it provide guidance on who determines what entities are States for the purposes of granting jurisdiction to the Court. This is a problem that the other international criminal courts never faced.[10]

The issue of Palestinian Statehood arose at the ICC due to a filing made by the Palestinian Authority in 2009 purportedly accepting the jurisdiction of the Court pursuant to Article 13 of the Rome Statute.[11] The Prosecutor of the ICC eventually decided that it did not rest with his office to decide what entities are States and which are not for the purposes of accepting the jurisdiction of the Court.[12] This decision led to some rather harsh responses challenging this interpretation and supporting the idea that the ICC is a proper forum to settle the issue.[13] The argument goes, essentially, that whether an entity is a State or not is a fact that can be judicially reviewed by the professional judges at the Court therefore there is no reason to defer the issue outside the Court.

Needless to say, if the Court were to decide that Palestine is a State there would be significant repercussions both legally and diplomatically around the world. The most obvious, from the perspective of the Court, would be that Palestine could create/delegate jurisdiction to the Court for prosecuting Israeli soldiers accused of committing crimes on Palestinian territory. There would also be political ramifications at the United Nations vis-à-vis Palestinian membership in that organization. Palestine has already been granted full-membership at UNESCO by the plenary body of that organization.[14] The membership of UNESCO and the UN are essentially the same.[15] It stands to reason then that a vote at the UN General Assembly on Palestinian membership would be a positive one. The reason this has not occurred is that UN membership is premised on a UNSC recommendation, which has not occurred.[16]

One way to look at the Palestinian request is as part of a larger quest to obtain recognition of its Statehood in face of the failure of the UN to take up the issue. There have been attempts to bring the issue to a vote at the UN, there was the UNESCO bid and then the ICC application. Of the three, the only judicial determination would be the ICC as the ICJ is not available to Palestine.[17] This is a better way to understand the Palestinian application. Considering the problems that would likely arise for the still new ICC regarding enforcement of any arrest warrants against Israeli officials, [18] the only real purpose of the application was the attempt to obtain recognition.[19]

Human Rights Review

Another distinction with other international criminal courts is that the ICC is “complimentary” to States and cannot pursue a case if it is under investigation, has been investigated and/or prosecuted at the domestic level.[20] The exception to this rule, making the case inadmissible, is when the State’s prosecution or investigation was undertaken where the State was unwilling or unable to prosecute the case.[21] These terms are defined in the Rome Statute as meaning those cases where the prosecution was undertaken to shield the accused, are subject to undue delay or the proceedings were “inconsistent with an intent to bring the person concerned to justice” and those cases where the judicial system is unable to act, respectively.[22] The long and the short of this principle is the ICC has the authority to take over a prosecution, notwithstanding a State’s ongoing investigation/prosecution where the Court determines the proceedings are inconsistent with bringing the accused to justice.[23] This provision was designed to prevent States from shielding accused from the jurisdiction of the Court, it was not envisaged as a review mechanism to ensure that States provide accused with a fair trial as such.[24] Likely in part for this reason, the Rome Statute does not supply standards or instructions for evaluating whether a State proceeding is fair, only references to situations where proceedings are designed to shield the accused.

Mr. Gaddafi after being taken into custody in Libya

Whether or not the ICC should have a human rights supervisory function has become a live issue in the admissibility challenge by Libya in the case against Saif Al-Islam Gaddafi. Members of Mr. Gaddafi’s appointed defense team in the Office of Public Counsel for the Defence have publically stated that he will not receive a fair trial in Libya.[25] Amicus in the case have filed a brief that dedicates pages, not to whether or not a trial will shield Mr. Gaddafi from the ICC, but to whether or not the judiciary is fair and free from executive interference and the balance of prosecutions of pro and anti-Gaddafi forces.[26] The arguments goes that if Libya will not afford Mr. Gaddafi a fair trial then it falls to the Court to assume jurisdiction and try him for his alleged crimes.

Any review of the human rights sufficiency of the Libyan courts at the moment would likely result in a fantastic description of dysfunction. And as has already been noted, there is no reason to believe that Mr. Gaddafi will receive a fair trial in Libya. The attractiveness of a human rights review function for the ICC is that it provides a mechanism to prevent human rights abuses. It is all the more appealing in the case of Libya because there is no other judicial institution (internal or international) that could hear such a claim.[27] However, any decision upholding the admissibility of the case would create practical problems especially in obtaining custody of the accused so that he may stand trial in The Hague.[28]

Everything to Everyone

The ICC’s deciding human rights issues is similar to the calls for the Court to decide the issue of Palestinian Statehood. Both instances involve situations where there is no other international body/court that is exercising independent review over the political decisions of the State or organization in question. Add to this the frustrated and failed attempts to reform the United Nations[29] and to force States to submit to outside human rights review.[30] The result is a sort of perfect storm encouraging those dissatisfied with the current state of the international order to view the ICC as a new opportunity to change the way the world works. Because the ICC is a new actor, and its role has not yet been defined, there is an opportunity to introduce a different way of doing things thereby modifying the status quo. Such efforts are consistent with the view, held in some parts, that the ICC was created in part to fill these gaps in enforcement due to failed attempts UN reform.[31]

Because of the current state of international relations the ICC finds itself at the intersection of many different and competing interests. Actors lacking another outlet to raise their issues turn to the ICC because it is available. However, convenient this may be, it does not address the underlying dilemma: should an international criminal court (and one that does not represent the entire international community at that) hear and resolve issues of general international law and conduct human rights reviews?

Judges at the ICC

As a matter of competence, there is no reason why the judges at the ICC could not hear cases involving and decide on issues of public international law or human rights. The bench is comprised of experts in international law and criminal law. The problem is rather another, that in deciding on such issues the Court could potentially exert its jurisdiction over cases involving non-States party thereby significantly expanding the Court’s mandate. Such an extension would be a robust assertion of authority in the face of resistance from the States involved who are against such decisions. It would also be a grand reframing of the purpose of the ICC. The Court was created to prevent impunity, not to oversee the admission of new States to the international community or to supervise State criminal justice systems to make sure they are in conformity with human rights law. These last two competencies more or less fall to the United Nations and human rights courts respectively.

None of this is to say that the Court should not weigh in on these issues. The issue of the validity of an acceptance of the ICC’s jurisdiction under Article 13 is something that it would seem natural for the Court to decide. While it is not directly asserted in the Rome Statute that a State must comply with an accused’s procedural rights, it is not 100% excluded either. The point is that should the Court decide to weigh in on these issues, which to date it has not, it should do so knowing that at this early stage of the Court’s development, going against the interests of States whose assistance is needed may not be the best move. This is doubly true considering that the text of the Rome Statute does not directly support such a supervisory role.


[1] One need think only in the first instance of the International Court of Justice (ICJ) which can only hear cases where all the parties effected have agreed to the court’s jurisdiction and are parties to the case. See on the second point, Monetary Gold Removed from Rome in 1943 Case (Italy v. France, United Kingdom and United States), judgment of 15 June 1953, available at http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=cd&case=19&code=gold&p3=4. When it comes to courts with limited compulsory jurisdiction one need only think of the International Criminal Tribunal for the Former Yugoslavia (ICTY).

[2] This would be the ICJ again, it is not a human rights court although it does from time to time take IHRL into account in the inter-State context.

[3] One example of this is the Inter-American Court of Human Rights.

[4] Again, one can think of the ICTY here.

[5] Preamble, Rome Statute of the International Criminal Court, 2187 UNTS 38544 (1998) (Rome Statute).

[6] See, Article 12, Rome Statute.

[7] Malcolm N. Shaw, International Law, 687 (6th ed. 2008).

[8] See, Article 12, Rome Statute. There is also the possibility of a United Nations Security Council (UNSC) referral, however, this is not a relevant factor for our purposes here.

[9] Ibid.

[10] The ICTY, International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL) were all created with the involvement of the UNSC. Also, both the SCSL and the Extraordinary Chambers in the Courts of Cambodia (ECCC) were created with the permission and involvement of the relevant States.

[13] One such response can be found on Prof. Schabas’ blog here, http://humanrightsdoctorate.blogspot.it/2012/04/prosecutor-and-palestine-deference-to.html.

[16] The UNSC created a committee to study the idea of Palestinian Statehood in a political move that shelved the issue for the moment.

[17] Conceivably, the General Assembly could request an advisory opinion.

[18] I discussed this previously on this blog, here, https://thenewinternationallaw.wordpress.com/2012/04/05/the-prosecutor-and-palestine/. It is also worth noting the difficulties related to enforcing arrest warrants against Sudanese officials and those related to the situation in Libya.

[19] Those who disagreed with the Prosecutor’s decision also seemed to feel that Palestine satisfies the criteria of Statehood. See, Schabas’s blog, supra.

[20] Article 17(1), Rome Statute.

[21] Ibid.

[22] Article 17(2), (3), Rome Statute.

[23] I fold all the subsection of Article 17(2) into this formulation for reasons that will become clear later on.

[24] Prosecutor v. Gaddafi & Al-Senussi, ICC-01/11-01/11, Prosecution responpose to Application on behalf of the Government of Libya pursuant to Article 19 of the ICC Statute, ¶¶ 27 – 32, 42 (5 June 2012).

[26] Prosecutor v. Gaddaffi & Al-Senusi, ICC-01/11-01/11, Lawyers for Justice in Libya and Redress Trust’s Observations Pursuant to Rule 103 of the Rules and Procedure and Evidence, ¶¶ 11 – 21 (8 June 2012).

[27] Libya is a member of the African Union and the African Charter on Human and People’s Rights, but has not accepted the jurisdiction of that Court to hear individual petitions.

[28] It is well known that the Libyan Authorities do not want to hand Mr. Gaddafi over to the Court.

[29] Attempts and proposals have been around for years to reform the United Nations, especially the Security Council to make it more representative amongst other things.

[30] One can think specifically of ACtHPR, Femi Falana v. The African Union, Application No. 01/2011. It has been discussed on this blog here, https://thenewinternationallaw.wordpress.com/2012/06/30/review-of-international-tribunal-decisions-for-the-week-of-june-24-2012/.

[31] Matthias Neuner, The Security Council and the ICC: Assessing the First Ten Years of Coexistence, 18 New England Journal of International and Comparative Law 283 (2012).

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A Rose by Any Other Name: International Crimes or Crimes Against Humanity?

No matter what anyone may say, the names we give to concepts matter a great deal. They have an impact on the way we think about them. For example, in domestic American politics there is an ongoing debate over the value of the recent medical insurance overhaul. Those in favor of the modifications call it the “Affordable Care Act”, while those who are against the changes call it “Obama-care”. Both names apply to the exact same identical thing, but one brings forth a personal platform while the other implies a certain usefulness or characteristic. The name international law likewise has traditionally affected the way scholars and judges thought about the discipline. The name itself, “inter-national”, implies that its rules apply to and among nations, or in modern terms, States.[1]

A terminology that started as a description of this branch of law has become its definition. This contributed to the assertion that “inter-national” law does not apply to or recognize, inter alia, individuals as subjects of the law.[2] While the exclusion of the individual as a subject of international law is still asserted by some, it is now commonly accepted that the individual is a subject of international law as the beneficiary of rights and assignments of duties in human rights law and international criminal law.[3] This has lead some to suggest that international law has evolved into something more akin to a global law.[4] My scope is much more modest in that I will focus on only one branch of international law. I would like to suggest that the time has come to reevaluate the name given to what we currently call “international criminal law”. The basis for this reevaluation is two fold: (1) the name no longer reflects (if it ever truly did) the nature of the subject matter and (2) many national legal orders do not identify international crimes as “international”, but rather have more nuanced names for the discipline. I will conclude by suggesting more accurate names to describe this discipline.

The first reason to discard the moniker of international criminal law relates to what the term itself means. As mentioned, the word “inter-national” implies that the behavior or relationships to be regulated by this body of law occur between States. Criminal law, of course, references a body of law creating and punishing crimes. It is axiomatic that State crimes do not currently exist in modern international law. The International Law Commission’s Articles on State Responsibility do not include such a category of international violations even though such terminology was used in earlier drafts.[5] At the same time, international criminal tribunals do not have jurisdiction over States for the crimes within their jurisdiction even when those acts are attributable to a State.[6] The crimes themselves also do not envisage a State as the victim, but rather individuals or collectives of individuals.[7] Nothing about the perpetrator or the victim then is directly “inter-national”.

The origin of international crimes, however, helps explain the terminology currently used in diplomatic and academic discourse. The first modern international criminal prosecutions took place at the end of the Second World War and were based primarily on violations of treaties.[8] Treaties, by definition, are “inter-national” agreements.[9] The crimes were therefore acts in violation of “inter-national” law. Additionally, the crimes were perpetrated in the context of a conflict between States and by individuals associated with one of the parties to that conflict and in furtherance thereof.[10] Neither of these conditions still holds in regards to modern international criminal law.

It is generally accepted that the laws of armed conflict criminalizing, inter alia, the mistreatment of protected persons, apply equally during “inter-national” armed conflicts, intra-national armed conflicts and conflicts between two non-State groups within and between several States.[11] Under the last scenario, a conflict between two or more non-State groups, the consent of treaty law of a particular State is less relevant. Neither group necessarily has agreed to be bound by the laws of war. Consent however is not required because customary law criminalizes the behavior anyway. What we have under these conditions is a body of law that directly governs the acts of individuals working on behalf of non-State entities regardless of the consent or any specific State.

Outside of the arena of war crimes, it is also generally accepted that there is no need for State involvement for the commission of “crimes against humanity”, an autonomous branch of international criminal law.[12] Groups that are unaffiliated with a particular State can set the widespread or systematic attack against a civilian population in motion that is necessary for their commission. Private individuals without the involvement of a State, likewise, can commit genocide.[13] These crimes therefore do not carry any link with States, let alone a connection to acts between States, to require the moniker of “inter-national”.

As this brief description shows, the term “inter-national” does not reflect the nature of the crimes under consideration. They do not necessarily relate to actions between States, but rather to certain acts that for one reason or another have been criminalized by the international community at the supranational level.

The second reason that reevaluating the name of “international criminal law” is that the crimes normally associated with this name are often referred to under different names in national legal systems. I will list just a few here for the purpose of illustration. Cape Verde criminalized “inter-national” crimes in a section of its penal code called “Crimes Against the International Community”; Estonia refers to these crimes as “Offenses Against Humanity and International Security”; France refers to them as “Crimes Against Humanity and Against Persons”; Georgia calls them “Crimes Against Humanity”; Guatemala calls them “Crimes of International Transcendence”; and some former Soviet States refer to the crimes as “Crimes Against Peace and Safety of Mankind”. There is little if any continuity between these terms and even less with the idea of “inter-national” crimes.

The lack of any meaningful connection to the term “inter-national” and the diversified practice of naming the same discipline within national legal systems both suggest that the name “international criminal law” is on its way to being an anachronism if it is not already. There still remains the question of what the discipline should be called. One option would be to use the classic Latin phrase crimes hostis humani generis. Another option would be to invent a new term such as “crimes against global order” or “crimes of universal concern”. The better choice would be to adapt the term “Crimes Against Humanity” to describe the entire field of law instead of a single subset of crimes. This has already been done implicitly by some of the national systems listed above. The sub-branch of the field now referred to as crimes against humanity can be referred to as “human rights crimes” thereby further casting light on its relationship both to human rights law and its separation from war crimes and humanitarian law.[14] This kind of renaming scheme would better reflect the content of the law and its modern context.


[1] The word “international” is an adjective defined as meaning “existing, occurring, or carried on between two or more nations.” Nation in turn is defined as “a large aggregate of people united by common descent, history, culture, or language, inhabiting a particular country or territory.” However, this second word in this context is best understood as the State, the modern version of which (at least in the European sense) is the Nation-state. A classic definition of international law is offered in Nuovo Diritto Internazionale Pubblico by Pasquale Fiore in 1888, at p. 20 as that which “regulates and directs the relations of and between nations”.

[2] L. Oppenheim, International Law (2nd Ed), p. 107 (1911).

[3] See, Malcolm Shaw, International Law (6th ed), p. 45 (2008).

[4] Giuliana Ziccardi Capaldo, Diritto Globale (2010).

[5] Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries (2001), A/56/10, pp. 81-83 (“From the first it was recognized that these developments had implications for the

[6] See, inter alia, Articles 1, 25, Rome Statute of the International Criminal Court.

[7] See, Articles 6-8, Rome Statute of the International Criminal Court. There is the possible exception of the Crime of Aggression, however, no court currently can exercise jurisdiction over that crime.

[8] See, Article 6, IMT Charter; IMT Judgment (“To assert that it is unjust to punish those who in defiance of treaties […] attacked neighbouring (sic) States […] is obviously untrue […]. Occupying the positions they did in the Government of Germany, the defendants, or at least some of them, must have known of the treaties signed by Germany, outlawing recourse to war for the settlement of international disputes; they must have known that they were acting in defiance of all International Law when in complete deliberation they carried out their designs of invasion and aggression.”)

[9] Article 2, Vienna Convention on the Law of Treaties, 115 U.N.T.S. 331.

[10] Article 6, IMT Charter.

[11] See, Report of the Secretary-General Pursuant to Paragraph 5 of Security Council Resolution 955 (1994), S/1995/134, ¶¶ 11-12 (13 February 1995).

[12] Prosecutor v. Ruto, Kosgey & Sang, ICC-01/09-01/11, ¶ 184 (23 January 2012).

[13] Prosecutor v. Jelisić, IT-95-10-T, ¶ 100 (14 December 1999).

[14] I have made this argument at greater length in an article in the New England Journal of International and Comparative Law, vol. 18.1 (2012).

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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

ICTY

Prosecutor v. Karadžić[1]

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

Background

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.

Reasoning

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]

ICTR

Ntabakuze v. Prosecutor[7]

Judgment

Background

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.

Reasoning

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.

STL

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

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

Background

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.

Reasoning

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]

ICC

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

ECtHR

Putintseva v. Russia[20]

Chamber Judgment

Background

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.

Reasoning

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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Participation of Victims in the International Criminal Court

Pre-Trial Chamber I made the first decision relating to victims’ participation in proceedings before the International Criminal Court (ICC) on the 17th of January 2006 concerning the Situation of the Democratic Republic of Congo. At that moment, the Chamber, while clarifying the difference between the victims of a situation and the victims of a case, held that the status of victims must be in accordance with the definition set out in Rule 85 of the Rules of Procedure and Evidence. In accordance with the Rule a victim has to be a natural person that has suffered harm as a result of a crime that falls under the jurisdiction of the ICC. Subsequently, while observing issues of identity, personal interest, reparation and protective measures, the Chamber declared the role of victims was to be limited to making statements before and after the confirmation of charges, they would not generally speaking have the capacity to present evidence.[1]

The different views between and within the parties on the role and capacity of the victims during the trial (and the relationship of such capacity to the right to a fair trial) led Trial Chamber I to invite the parties and participants of the case of The Prosecutor v. Thomas Lubanga Dyilo to submit their views on the “role of victims in the proceedings leading up to, and during, the trial”.[2] The Trial Chamber requested the filing of submissions from the defense, the Office of the Prosecutor, the legal representatives of the victims, and the Office of Public Council for Victims, as well as requesting the Registry to report on consultations carried out for these filings. The resulting decision of the Trial Chamber on victims’ participation took into account and was based on the parties’ views relating to the status of victims and witnesses and their relation to an expeditious trial. The Trial Chamber further interpreted these views in light of the relevant provisions of the Statute,[3] the Rules of Procedure and Evidence,[4] the Regulations of the Court,[5] and the Basic Principles and Guidelines on the Right to a Remedy, together with Reparations for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, [6] and the Convention on the Rights of the Child.[7]

In order to set the distinction between a natural and a legal person, the Trial Chamber recalled the necessity of bearing in mind the context of the situation in the Congo and thus to consider the difficulties of applicants to acquire or produce official identity documents. Furthermore, to ensure that victims are not unfairly deprived of an opportunity to participate for reasons beyond their control, the Trial Chamber held official identification documents, non-official documents, and other relevant documents and valid relationships to establish the identity of a ‘natural person’. Additionally, the Trial Chamber held that it would consider any information that the Victims Participation and Reparation Section that it considers relevant. On evidence that the applicant suffered harm as a result of a crime committed within the jurisdiction of the ICC, the Trial Chamber once it has established that the applicant is a natural or legal person, is to decide if this is a case of ‘sustained direct harm’. The Rome Statute does not establish a definition of the concept of harm. However, the Basic Principles the Chamber set out defined harm as the victim’s suffering, either individual or collective in a variety of different ways which include physical or mental injury, emotional suffering, economic loss or substantial impairment of his or her fundamental rights.[8]

As such, the Trial Chamber determined that such participation is not restricted to those who are victims of the crimes contained in the charges confirmed by the Pre-Trial Chamber, and that such a restriction is not provided for in the framework of the Rome Statute. On the other hand, the Trial Chamber, recalling its jurisdiction ratione materia and ratione temporis, defined its jurisdiction on any crime committed in the territory of a State Party or by a national of a State Party, and hence it is necessary that the harm was suffered as a result of the crime committed in the territory of a State Party of by national of a State Party. [9]

It follows that a victim of any crime which is within the jurisdiction of the ICC can potentially participate in international proceedings before the ICC. Nevertheless, it would not be in the interest of justice for all such victims that they be permitted to participate, given that evidence and issues would frequently be wholly unrelated. In consequence, and in the light of Article 68 (3) of the Statute, granting participation rights to many victims “would not serve any useful purpose” and the Chamber will decide proprio motu whether there should be joint representation.

The report to the Chamber of the Registry’s Victims Participation and Reparation Section declared that the matter at issue is the substantive evidential link between the victim and the evidence, as well as considering the background of the personal interest and affection of the trial towards the victim. For this purpose, the Chamber has to determine whether to authorize a victim to participate in the proceedings. This involves an initial determination using the standard of proof, and the examination of a discrete written application stating the reasons why the interests of the victim are affected by the case before the Chamber. These documents are thus examined on a case-by-case basis.

The interests of the victim must relate to the evidence of alleged crimes and the issues the Chamber will be considering in its deliberations on the charges. On the other hand, the interest of victims are multiple and dependent, but nevertheless with a shared interest for access to justice, that the Chamber must ensure. Therefore, participation may be decided on the basis of evidence, requested in an appropriate manner and consistent with the rights of the defense to a fair and expeditious trial.

In Lubanga, the Trial Chamber recalled the victims’ right of consultation, subject to the restrictions of confidentiality and protection of national security information, and consequently the presumption for the legal representative to be granted access to all public filings, and opportunely other confidential material upon request and without protective measures.

With regard to evidence, the Lubanga Trial Chamber defined that victims during trials may be requested pursuant the mission of the Court to establish the truth and evidence, and in accordance to the Statute and the Rules of Procedure and Evidence.[10] It is the discretion of the Trial Chamber to rule on the admissibility and relevance of evidence, taking into account the victims and in accordance with the Statute, and to permit victims to participate in closed and ex parte hearings and through written submissions.[11] Despite the defense arguments, the consideration of evidence at different stages was held to be without prejudice to the rights of the accused and the maintenance of the presumption of innocence, and thus in accordance with Regulation 56 of the Regulations.

Furthermore, the Lubanga Chamber rejected the notion that anonymous victims should not be permitted to participate in the proceedings, and recognized in accordance with the Rules the special needs for children and elderly victims, victims with disabilities, and victims of sexual and gender violence participating in the proceedings, when it is a matter of safeguarding their integrity, physical and psychological well-being, dignity and private life, protective and special measures defined in the Statute. [12]

In conclusion, the Lubanga Trial Chamber rejected the characterization of victims and witnesses urged by the defense, and took into account the special needs arising from this dual status and balanced possible impacts on the rights of the defense.

It follows that the victims are allowed to participate through application to the Chamber at any stage provided their relevance and interest to the evidence, and the participants are provided access to the entire public record and index of the case. However, it should be mentioned that Judge Rene Blattman in his Separate and Dissenting Opinion defended an imprecise definition of victim that does not allow effective rights of participation and may threaten the rights of the accused. He contended that it is against the general principles of criminal law, such as the principle of legality, not to link the status of victim and consequent rights of participation to the charges confirmed against the accused. Such a situation may not be in accordance with the procedural assertions and the adjudication that the Statute does not limit the Chamber’s jurisdiction.

All in all, the decision of the Trial Chamber was intended to provide the parties and participants with the general guidelines related to the participation of victims throughout the proceedings in general terms, to be complemented by the Trial Chamber on an applicant-by-applicant basis. Victim participation must enjoy meaningful effect and always ensure that its application does not result in an unfair trial. The evidence given by the victims, acquired through filtration and relevance, and its relation throughout the stages of the trial, it is not only respectful to the parties but also substantial in the acquisition of truth.[13]


[1] In exception of a/001/06 and a/0003/06 which were granted on a sole question to the Prosecutor’s witness.

[2] Order setting out schedule for submissions and hearing regarding the subjects that require early determination. ICC-01/04-01/06-947 and ICC-01/04-01/06-985.

[3] Article 21(1), Article 21(3), Article 68(1) – (3) and Article 69(3).

[4] Rule 85, Rule 86, Rule 87, Rule 88(1), Rule 89(1), Rule 90, Rule 91, Rule 92 and Rule 131(2).

[5] Regulation 79(2) and Regulation 56.

[6] Principle 8 and Principle 9.

[7] Article 3(1) and Article 12(2).

[8] 8th Principle.

[9] Article12 of the Statute

[10] Article 69(3) and Rule 91(3).

[11] Article 68(3) and 69(4).

[12] Article 68(1).

[13] Cassese, Antonio, International Criminal Law, Oxford (2008); Cryer, Robert: International Criminal Law, Cambridge (2007); Decision of the International Criminal Court Trial Chamber I: Prosecutor v. Thomas Lubanga Dyilo, 18 January 2008; Baumgartner, Elisabeth: Aspects of Victim Participation in the Proceedings of the International Criminal Court, International Review of the Red Cross, Vol. 90 (2008); Boyle, David: The Rights of Victims: Participation, Representation, Protection, Reparation, Journal of Criminal Justice 4 (2006) 307 et seq; De Hemptinne, Jerome & Rindi, Francesco: ICC Pre-Trail Chamber Allows Victims to Participate in the Investigation Phase of the Proceedings, Journal of Criminal Justice 4 (2006) 342 et seq; Stahn, Carsten & Olasolo, Hector & Gibson, Kate: Participation of Victims I Pre-Trial Proceedings of the ICC, Journal of Criminal Justice 4 (2006) 219 et seq.

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Review of International Tribunal Decisions for the week of April 23, 2012

This week has decisions from the International Criminal Tribunal for the Former Yugoslavia (ICTY) on appellate practice and the confidentiality of documents. The Extraordinary Chambers in the Courts of Cambodia (ECCC) issued a decision on the propriety of ex parte communications between the Court and the Prosecution. The International Criminal Court (ICC) issued several decisions dealing with issues ranging from legal aid to amicus curiae.  The Special Tribunal for Lebanon (STL) issued a decision on participation in a judicial conference and the European Court of Human Rights (ECtHR) issued several chamber judgments. Most importantly, the Special Court for Sierra Leone (SCSL) issued a partial version of the judgment in the case against Charles Taylor, the former president of Liberia.

International Criminal Law

ICTY

Prosecutor v. Šešelj[1]

Decision on Amicus Curiae Prosecutor’s Motion to Strike the Appellant’s Brief and Urgent Motion for Stay of Deadline

Background

The Accused was convicted of contempt of the tribunal and filed an appeal brief of 33, 606 words, or 24,606 words over the word limit.[2] The Amicus Prosecutor filed a motion to strike the brief in its entirety.[3] The Chamber granted the motion.

Reasoning

The Chamber noted that the Accused should have filed a request to submit an oversized appeal brief before filing the brief instead of as part of the brief.[4] In any case, the motives given for the accused did not explain why he need additional space or were irrelevant to the appeal.[5] The Chamber accordingly granted the Amicus Prosecutor’s request and granted the Accused the opportunity to file an appeal brief within the assigned word limit.[6]

Prosecutor v. Karadžić[7]

Decision on the Accused’s Motion to Unseal ICMP Exhibits

Background

The Trial Chamber previously heard testimony from the director of the International Commission on Missing Persons (ICMP) about matching the genetic material of those killed in Bosnia during the war with survivors and received numerous documents relating the DNA matching under seal.[8] The Accused filed a motion asking that the Chamber unseal the documents.[9] The Prosecution responded, inter alia, that the information should be kept confidential under Rule 75 allowing protective measures for victims and witnesses.[10] The Chamber granted the motion in part.

Reasoning

The Chamber rejected the submission that the exhibits could be kept confidential under Rule 75 as the individuals who donated their genetic material to the ICMP are not witnesses before the tribunal simply because information they provided made its way into the evidence of the Tribunal.[11] The Chamber, however, recognized the inherently private nature of DNA information and ordered that any such information be redacted under Rule 54.[12]

SCSL

Prosecutor v. Taylor[13]

Judgment

Charles Ghankay Taylor, the former President of Liberia, was convicted today on all counts of an 11-count indictment which alleged that he was responsible for crimes committed by rebel forces during Sierra Leone’s decade-long civil war. The Special Court’s Trial Chamber II found unanimously that Mr. Taylor aided and abetted RUF and AFRC rebels in the commission of war crimes and crimes against humanity in Sierra Leone.

Mr. Taylor was convicted on Count 1 for acts of terrorism (a war crime), on Count 2 for murder (a crime against humanity), on Count 3 for murder (a war crime), on Count 4 for rape (a crime against humanity), on Count 5 for sexual slavery (a crime against humanity), on Count 6 for outrages upon personal dignity (a war crime), on Count 7 for cruel treatment (a war crime), on Count 8 for inhumane acts, including mutilations and amputations, (a crime against humanity), on Count 9 for the recruitment, enlistment and use of child soldiers, on Count 10 for enslavement (a crime against humanity), and on Count 11 for pillage (a war crime).

The Prosecution had not alleged that Mr. Taylor had committed these crimes in person, but that he participated from Liberia in the commission of crimes by AFRC and RUF rebels and, under Articles 6.1 and 6.3 of the Special Court Statute, was individually responsible for them. The Chamber found that he had aided and abetted the rebels by providing them with arms and ammunition, military personnel, operational support and moral support, making him individually responsible for their crimes.

ECCC

Case 002[14]

Decision on IENG Sary’s Appeal Against the Trial Chamber’s Decision on its Senior Legal Officer’s Ex Parte Communications

Background

The Trial Chamber filed a memorandum denying the Accused’s request that the Trial Chamber Senior Legal Officer copy all the parties on communications related to trial management issues and the Accused appealed.[15] The Supreme Court Chamber ruled the appeal was inadmissible.

Reasoning

An immediate appeal to the Supreme Court Chamber under these circumstances must allege an act that would be a violation of Internal Rule 35, an act interfering with the administration of justice, something that the defence did not do in this case.[16] The Chamber reiterated that there is no general right to an interlocutory appeal.[17] Therefore, the Chamber held that the request failed to satisfy the requirements for admissibility.[18]

ICC

Prosecutor v. Katanga & Chui[19]

Decision on the Urgent Requests by the Legal Representatives of Victims for Review of Registrar’s Decision of 3 April 2012 regarding Legal Aid

Background

The Legal Representative for the principal group of victims wanted funding for a trip to the Democratic Republic of the Congo (DRC) for himself and his legal assistant so that they could update their clients and get more detailed information from some of their clients.[20] The Registrar rejected the request for funds as the legal assistant based in the DRC could carry out those functions.[21] The Legal Representative asked the Chamber to find that the planned trip falls within the legal aid that the Registrar is to cover, that the Registrar should cover the expenses of his legal assistant to travel with him to the DRC and, in the alternative, if the Legal representative were to pay his own way to have the Registry pay for logistical support and security.[22] The Chamber rejected the Legal Representative’s requests.

Reasoning

The Chamber started by setting out that review of requests for legal aid is not the same as an administrative decision such as reviewed by the President and so a more flexible standard is appropriate.[23] The Chamber set out that it,

must assess (a) whether the Registrar has abused her discretion; (b) whether the Registrar’s decision is affected by a material error of law or fact; and (c) whether the Registrar’s decision is manifestly unreasonable. The Chamber will only intervene if counsel can show that the Registrar’s decision falls foul of one or more of these criteria.[24]

No one suggested that the Registrar abused her discretion and so that issue was not addressed by the Chamber.[25] The Chamber likewise found that there was no error of law or of fact.[26] The last issue was based entirely on whether it was unreasonable of the Registry to have the view that the legal assistant in the DRC could adequately carry out the necessary functions without a trip from counsel in The Hague.[27] The Chamber felt that this was not unreasonable and therefore upheld the Registry’s decision.[28] As to the request for aid for the legal assistant from The Hague because the Registry had yet to rule on such a request.[29]

Prosecutor v. Ruto, Kosgey & Sang[30]

Decision on the “Application of the Victims’ Representative pursuant to Article 83 of the Regulations”

Background

The Legal Representative for the victims was informed that her mandate would end with the confirmation of the charges and that any victim participation after that point would be up to the Trial Chamber.[31] The Victims filed a request with the Appeals Chamber to order that the mandate of the Legal Representative be extended until the representation scheme for the trial is put in place.[32] The Appeals Chamber rejected the request.

Reasoning

The Chamber set out that before reaching the merits of the request, that it first had to be determined if the Legal Representative still represented the victims because of the termination of the Pre-Trial proceedings and the end of the mandate.[33] The Chamber held that because counsel as a general matter under the code of conduct represents his or her client until he withdraws or the case ends, the Legal Representative still represents the victims in the current proceedings and so the end of the mandate does not equate to a termination of representation.[34] The consequence of the mandate ending was that the Registry would only pay for pre-approved acts in connection with the case, something the Chamber found to be reasonable considering the stage and posture of the case.[35]

Prosecutor v. Gaddafi & Al-Senussi[36]

Decision on the “Application on behalf of Mishana Hosseinioun for Leave to Submit Observations to the Pre-Trial Chamber”

Background

Ms. Hosseinioun filed a motion requesting permission to file observations pursuant to Rule 103 asking the Chamber to order that she be allowed to visit Mr. Gaddafi in custody in Libya so that she might help him obtain counsel.[37] The chamber denied the motion.

Reasoning

“The Chamber observes that Ms Hosseinioun effectively requests that the Chamber authorise and facilitate contact between her and Mr Gaddafi, in order to give him access to what she deems to be appropriate legal advice. She does not seek to provide the Chamber with observations which may be “desirable for the proper determination of the case”, as required by Rule 103 of the Rules. The reasoning advanced by Ms Hosseinioun to justify her request is thus misplaced and contrary to the intended purpose of the amicus curiae role in the proceedings before this Court. Accordingly, the Application must be rejected.”[38]

Prosecutor v. Katanga & Chui[39]

Décision relative à la requête de la Défense de Germain Katanga tendant à l’admission d’extraits du jugement prononcé dans l’affaire Lubanga

Background

The Accused filed a motion for the Chamber to admit certain paragraphs from the recent judgment in Lubanga regarding intermediaries P-143 and P-316 and the Prosecutor and Victims opposed the motion.[40] The Chamber rejected the motion.

Reasoning

The Chamber noted that there is no explicit legal basis for the request.[41] The issue is not one of the principle that evidence be oral and be able to be cross examined, but if it is appropriate to admit new evidence at this stage of the proceedings after the close of the parties’ cases.[42] The Chamber decided that the conclusions of the Trial Chamber in Lubanga are not of such value as to justify re-opening the case to admit new evidence at this juncture.[43]

Prosecutor v. Gaddafi & Al-Senussi[44]

Decision on “Government of Libya’s Appeal Against the ‘Decision Regarding the Second Request by the Government of Libya for Postponement of the Surrender of Saif Al-Islam Gaddafi’” of 10 April 2012

Background

On 22 March 2012, the government of Libya filed a “notification” that it intends to challenge the admissibility of the case against Saif Al-Islam and requesting for the second time that the Pre-Trial Chamber postpone the request for the surrender of the accused to the ICC.[45] The Pre-Trial Chamber rejected this second postponement request and Libya filed this appeal.[46] The Appeals Chamber rejected the appeal.

Reasoning

The appeal was filed pursuant to article 82(1)(a) of the Rome Statute which provides that either party may appeal, inter alia, a decision on jurisdiction or admissibility.[47] The decision of the Pre-Trial Chamber on the surrender of the accused was not a decision on the admissibility of the case.[48] Therefore, the appeal is inadmissible and should be dismissed.[49]

Prosecutor v. Gaddafi & Al-Senussi[50]

Decision on OPCD Requests

Background

Since the arrest of Mr. Gaddafi and the subsequent litigation on his being transferred to the court, the Chamber was of the view that three issues still remained to be decided: (1) the ability of the OPCD (representing Mr. Gaddafi) to have privileged communications with him; (2) the need to give Mr. Gaddafi the ability to select counsel of his choosing and; (3) and issues related to his eventual transfer to the Court.[51]

Reasoning

The Chamber started by noting that Article 57(3)(b) of the Statute gives the Chamber authority to seek legal representation after they “have been arrested or [have] appeared pursuant to a summons under article 58”.[52] Libya argued that Mr. Gaddafi was not arrested pursuant to an order from the Court and therefore Article 57 does not apply, however, the Chamber disregarded this saying the ability of the Court to order compliance with the Accused’s right to a defence before the Court cannot be conditioned on a State’s compliance with an arrest warrant from the court.[53] The Chamber therefore ordered that the OPCD be given the opportunity to engage in privileged communications with Mr. Gaddafi.[54] The Chamber also requested that the Libyan authorities inform the OPCD, in a timely manner, of the location of the accused so that the OPCD can maintain contact with him.[55] Finally, the Court denied an OPCD request for an ex parte conference on the transfer of the Accused to the Court.[56]

STL

Prosecutor v. Ayyash, Badreddine, Oneissi & Sabra[57]

Order by the Judge Rapporteur on Requests for Participation in Judicial Conference

Background

The Judge Rapporteur ordered that a judicial conference be held in his chambers and that the Prosecution and Defence attend.[58] The Defence Office request that it also be able to attend as did the Victims’ Participation Unit.[59] The Judge granted the Defence request but denied the victims request.

Reasoning

The Judge considered that the Accused requested that the Defence Office be allowed to attend any confidential sessions so that the office would be better able to assist the Accused in their defense.[60] He granted that request. The Victims’ Participation Unit requested to participate so as to safeguard the interests of the victims, however, they did not identify how participation at this juncture (or lack thereof) would affect the victims’ interests and so he denied the request.[61]

International Human Rights Law

ECtHR

Mathloom v. Greece[62]

Chamber Judgment

Background

The case concerned an Iraqi national who was kept in detention for over two years and three months with a view to his deportation, although an order had been made for his conditional release. The court found a violation of the Convention.

Reasoning

The Court found, in particular, that the Greek legislation governing the detention of persons whose expulsion had been ordered by the courts did not lay down a maximum period and therefore did not satisfy the foreseeability requirement under Article 5 § 1.

Yordanova and others v. Bulgaria[63]

Chamber Judgment

Background

The case concerned the Bulgarian authorities’ plan to evict Roma from a settlement situated on municipal land in an area of Sofia called Batalova Vodenitsa. The chamber found a violation of the right to respect for private and family life.

Reasoning

The Court found that the removal order had been based on a law, and reviewed under a decision-making procedure, neither of which required the authorities to balance the different interests involved.


[1] IT-03-67-R77.3-A, 23 April 2012.

[2] Ibid. at ¶¶ 5, 10.

[3] Ibid. at ¶ 6.

[4] Ibid. at ¶ 11.

[5] Ibid. at ¶¶ 13-14.

[6] Ibid.

[7] IT-95-5/18-T, 25 April 2012.

[8] Ibid. at ¶ 1.

[9] Ibid. at ¶ 2.

[10] Ibid. at ¶ 3.

[11] Ibid. at ¶ 8.

[12] Ibid. at ¶ 9.

[13] SCSL-03-1-T, 26 April 2012. All information on this case is taken from the Press Release.

[14] Case File No. 002/19-09-2007-ECCC-TC/SC(14), 25 April 2012.

[15] Ibid. at ¶¶ 1-2.

[16] Ibid. at ¶ 13.

[17] Ibid. at ¶ 15.

[18] Ibid. at ¶16.

[19] ICC-01/04-01/07, 23 April 2012.

[20] Ibid. at ¶ 1.

[21] Ibid. at ¶ 2.

[22] Ibid. at ¶ 4.

[23] Ibid. at ¶ 9.

[24] Ibid.

[25] Ibid. at ¶ 11.

[26] Ibid. at ¶¶ 12-18.

[27] Ibid. at ¶ 19.

[28] Ibid. at ¶¶ 20-21.

[29] Ibid. at ¶ 23.

[30] ICC-01/09-01/11 OA 3 OA 4, 23 April 2012.

[31] Ibid. at ¶¶ 1-8.

[32] Ibid. at ¶ 9.

[33] Ibid. at ¶ 18.

[34] Ibid. at ¶ 21.

[35] Ibid. at ¶ 23. A substantially similar, but procedurally different, decision was issued in the case of Prosecutor v. Muthaura, Kenyatta & Ali on the same day.

[36] ICC-01/11-01/11, 24 April 2012.

[37] Ibid. at ¶ 3.

[38] Ibid. at ¶ 5.

[39] ICC-01/04-01/07, 26 April 2012.

[40] Ibid. at ¶ 1.

[41] Ibid. at ¶ 12.

[42] Ibid. at ¶ 14.

[43] Ibid. at ¶ 18.

[44] ICC-01/11-01/11, 25 April 2012.

[45] Ibid. at ¶ 5.

[46] Ibid. at ¶¶ 6, 8.

[47] Ibid. at ¶ 12.

[48] Ibid. at ¶ 15.

[49] Ibid. at ¶ 16.

[50] ICC-01/11-01/11, 27 April 2012.

[51] Ibid. at ¶ 9.

[52] Ibid. at ¶ 10.

[53] Ibid. at ¶ 11.

[54] Ibid. at ¶ 12.

[55] Ibid. at ¶¶ 14-15.

[56] Ibid. at « 15.

[57] STL-11-01/PT/AC/R176bis, 24 April 2012.

[58] Ibid. at ¶ 1.

[59] Ibid.

[60] Ibid. at ¶ 2.

[61] Ibid. at ¶ 4.

[62] Application No. 48883/07, 24 April 2012. All information on this case is taken from the Press Release.

[63] Application No. 25446/06, 24 April 2012. All information on this case is taken from the Press Release.

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