Tag Archives: international criminal tribunal for the former yugoslavia

Is there such a thing as a Bar on Double Jeopardy in International Criminal Law?

On February 3, 2014, the Office of the Prosecutor (OTP) at the International Criminal Tribunal for the Former Yugoslavia (ICTY) filed a request to reconsider the acquittal of former Chief of Staff of the Yugoslav Army Momčilo Perišić for aiding and abetting crimes committed in Sarajevo and Srebrenica between 1993 and 1995. He was acquitted by the Appeals Chamber of the ICTY based on the legal determination that in order to aid and abet crimes, one must have a specifically directed the crimes in question. Subsequent decisions by the ICTY have called this legal finding into question. The OTP now seeks to undo what it sees as an injustice. Should they be allowed to reopen the case after acquittal on appeal?

The Rules of Procedure and Evidence (RPE) of the tribunal allow for a decision or judgment to be “reviewed.” Rule 119 provides as follows:

Where a new fact has been discovered which was not known to the moving party at the time of the proceedings before a Trial Chamber or the Appeals Chamber, and could not have been discovered through the exercise of due diligence, the defence or, within one year after the final judgement has been pronounced, the Prosecutor, may make a motion to that Chamber for review of the judgement. If, at the time of the request for review, any of the Judges who constituted the original Chamber are no longer Judges of the Tribunal, the President shall appoint a Judge or Judges in their place.

The formal requirements for such a motion are that there is a new “fact” and, in this case, that the request is made within one year of the issuance of the judgment in question.

Starting with the second requirement, we can see that it has clearly been satisfied. The Perišić judgment was issued on February 28, 2013, while the request was filed on February 3, 2014, just under the wire. The more interesting question is whether a determination of law is a new “fact” that can be raised to review a judgment of acquittal. I do not believe it is. Legal interpretations should not be considered “facts” for the purpose of a review of a judgment of acquittal for two reasons, one dealing with a simple interpretation of the rule and the other with general principles of justice.

The rule requires there to be a new “fact” that was not discoverable at the time in order to review a judgment. “Facts” are items of proof tending to demonstrate that the underlying crime in fact took place. These indicia are then interpreted in light of applicable law to see if they satisfy the elements of the crime in question. The OTP’s request in this case is not related to the first half of this equation, the facts, but to the second part, the law. The OTP should not be allowed to change the result of the trial simply on the clear wording of the rule.

Even if the differing legal interpretations should be considered as “facts,” they would still have to be “new,” or undiscoverable at the time of the original proceedings. This is clearly not the case here. The OTP made arguments along the lines being advanced in the request for review. It is just that the Appeals Chamber at the time rejected those arguments and made a contradictory ruling of law. Now, based on other authority, the OTP wishes to have that ruling reconsidered, this is nothing more than an attempt to get a second bite at the apple.

It is a general principle of justice that a person shall not be tried more than a single time for the same crime. This is known both as the prohibition on double jeopardy and the principle of ne bis in idem. It is enshrined in various national constitutions and international human rights documents. The rule not only protects individual rights but, like the related doctrine of res judicata, provides a needed finality to judgments and legal proceedings. The OTP in this case already had its chance to prove the crimes allegedly committed by Mr. Perišić. They failed to do so as the Appeals Chamber made a legal ruling, one that cannot be appealed as the chamber is the final instance of appeal, excluding his culpability. The OTP would like to revisit that judgment now and have Mr. Perišić re-judged based on a different legal standard. This is exactly what the prohibition on double jeopardy is designed to prevent. Justice cannot be effected through the application of a system that violates basic principles of justice.

There is a debate right now in international criminal law as to whether aiding and abetting requires there to be “specific direction.” Indicia at the moment appears to be moving away from such a requirement. Whatever the outcome of this legal evolution will be, it should not be used to retry those who have already been acquitted on appeal.



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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 19, 2012

This week saw decisions from the International Court of Justice (ICJ), the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Court (ICC) and the European Court of Human Rights (ECtHR). They cover issues of sovereignty over islands, admission of evidence, amicus curiae submissions and the right to a fair trial.

Public International Law


Territorial and Maritime Dispute (Nicaragua v. Colombia)[1]


The ICJ decided by unanimous vote to reject Nicaragua’s claim to sovereignty over several disputed islands in the Caribbean Sea and instead favoured Colombia’s claim. The issue was decided not by what territories the countries possessed at the time of independence, but based on Colombia’s continual action and presentation that it was the sovereign over the disputed islands, especially considering the lack of any such action on the part of Nicaragua.

International Criminal Law


Prosecutor v. Stanišić & Simatović[2]

Decision on Prosecution Motion for Reconsideration of the Decision Denying Admission of D456


The Chamber had denied the admission of a defence exhibit on the grounds that there were problems with the original and the translation.[3] The Prosecution asked for this decision to be reconsidered as those faults had been corrected.[4] The Chamber granted the request.


The Chamber considered that the correction of the previous deficiencies constituted a new fact that could permit reconsideration.[5] The document in question had been examined by several defense witnesses and discussed at length during the proceedings.[6]The Chamber noted that there was no duty to explicitly indicate how an exhibit tendered through a witness is to be used in the party’s case as the witness testimony would give it context.[7] The document in question was also not “new evidence” as it had been discussed at trial.[8] For these reasons, the Chamber found that the accused would not be prejudiced by its admission and reconsidered its prior decision denying admission of the exhibit in question.[9]


Prosecutor v. Katanga & Chui[10]

Décision relative à la mise en œuvre de la norme 55 du Règlement de la Cour et prononçant la disjonction des charges portées contre les accuses

The Trial Chamber decided to sever the charges against the two accused and will issue a decision on the guilty or innocence of Mr. Chui pursuant to article 74 of the Rome Statute on 18 December 2012.

The Chamber that the mode of criminal responsibility charged against Mr. Katanga may be subject to modification also issued a notification. All participants were asked to submit their observations on this possibility by 15 January 2013.

Prosecutor v. Ruto & Sang[11]

Decision granting the application of Kituo Cha Sheria for leave to submit observations


Kituo Cha Sheria (Center for legal empowerment) submitted an application to provide observations on the methods of victim participation in this case.[12] The Chamber granted the request.


“The Chamber notes that Kituo is a non-governmental human rights organization operating in Kenya. “Shortly after the 2007/2008 post election violence (“PEV”), Kituo designed a project aimed at facilitating effective community participation in the Truth Justice and Reconciliation Process in Kenya, as well as victims’ participation in the ICC process. As part of the aforementioned project, Kituo is currently undertaking outreach to 2007/2008 PEV victims with the aim of promoting victim participation in the ICC process.” ^° Kituo is in contact with victims who appear to be within the scope of the Muthaura and Kenyatta case and it is “conducting awareness sessions on victims’ participation in ICC proceedings”. Given its specialised knowledge and experience, the Chamber considers that Kituo is an appropriate organization to submit observations as amicus curiae in relation to the implementation of the system of victims’ representation and participation.”[13]

International Human Rights Law


Harabin v. Slovakia[14]

Chamber Judgment


The case concerned the imposition of a disciplinary sanction on the President of the Slovak Supreme Court for having prevented an audit at that court, and in particular his complaint that several of the judges who decided his case were biased. The Court found a violation of the right to a fair trial.


Under Slovak law, disciplinary proceedings against the president of the Supreme Court could only be decided by a majority of the plenary of the Constitutional Court. Faced with a situation where the parties challenged seven of its thirteen judges for bias, the Constitutional Court had had to balance between two interests, namely the need to respond to the requests for exclusion of those judges and the need to maintain its capacity to determine the case.

The Court [the European Court of Human Rights] considered that in that balancing exercise the Slovak Constitutional Court had failed to take an appropriate stance under Article 6. Firstly, two of the judges challenged by Mr Harabin and two of the judges challenged by the Minister had been excluded in earlier set of proceedings involving Mr Harabin. Given that doubts were therefore likely to arise as to their impartiality, the Constitutional Court should have – but had not – given convincing arguments as to why the challenges could not be accepted in the disciplinary proceedings. Secondly, the Constitutional Court had not taken a stand as to whether any of the other reasons evoked by the parties would have justified the respective judges’ exclusion.

Only after answering the parties’ arguments and establishing whether or not the challenges to the judges were justified could the question have arisen as to whether there was any proclaimed need and justification for not excluding any of the judges. The need to maintain the Constitutional Court’s capacity to determine the case could therefore not justify the participation of the judges in respect of whose alleged lack of impartiality the Constitutional Court had failed to convincingly dissipate doubts.

[1] Judgment of 19 November 2012. All in formation was taken from the court’s press release.

[2] IT-03-69-T, 21 November 2012.

[3] Ibid. at ¶ 1.

[4] Ibid. at ¶ 2.

[5] Ibid. at ¶ 6.

[6] Ibid. at ¶ 7.

[7] Ibid at ¶ 9.

[8] Ibid. at ¶ 10.

[9] Ibid. at ¶ 11.

[10] ICC-01/04-01/07, 21 November 2012. All information in this summary was taken from the English press release.

[11] ICC-01/09-01/11, 15 November 2012.

[12] Ibid. at ¶ 3.

[13] Ibid. at ¶ 8.

[14] Application no. 58688/11, 20 November 2012. All informaiton was taken from the press release.

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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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Review of International Tribunal Decisions for the week of October 29, 2012

This week’s review has decisions from International Criminal Tribunal for the Former, the Special Tribunal for Lebanon (STL) and the International Criminal Court (ICC). The decisions range from issues dealing with provisional release, trial in absentia and the fitness to stand trial.

International Criminal Law


Prosecutor v. Hadžić[1]

Decision on Hadžić’s Urgent Request for Provisional Release


The Accused requested provisional release for a few days in order to attend his mother’s funeral.[2] The Prosecution objected on grounds that he did not meet the grounds for provisional release.[3] The Chamber denied the motion.


The Chamber denied release on the grounds that the Accused evaded arrest for years and that he had significant motives to try and abscond given the seriousness of the charges against him.[4]


Prosecutor v. Ayyash, Badreddine, Oneissi & Sabra[5]

Decision on Defence Appeals Against Trial Chamber’s Decision on Reconsideration of the Trial In Absentia Decision


The Accused face a trial in absentia and their counsel, with no contact from the Accused, requested that the in absentia decision be reconsidered on the grounds that such a trial prejudiced their clients’ rights. The Appeals Chamber rejected the appeal.


The Appeals Chamber rejected the appeal essentially because the Accused could challenge any eventual conviction, could make themselves known and participate in the trial and that they had received sufficient notification of the trial to participate if they so chose.


Prosecutor v. Katanga & Chui[6]

Order in relation to the request by duty counsel of DRC-D02-P-0236, DRC-D02-P-0228 and DRC-D02-P-0350 to be transferred to hearings before the Court of Appeals of The Hague

The Chamber requested that two witnesses before the Court be transferred to the Court of Appeals in The Hague in order to attend the appeals in their domestic asylum case.

Prosecutor v. Gbagbo[7]

Decision on Two Defence Requests in Relation to the Hearing Scheduled for 30 October 2012


On 30 October 2012, the Court was to hold a hearing on the continued detention of the Accused.[8] The Accused requested that the hearing be in closed session, that the OPCV be excluded from parts of the hearing and that he be allowed to assent himself.[9] He also requested a postponement of the hearing.[10]


The Single Judge denied the request for postponement due to the fact that the Accused would not suffer any prejudice form holding the hearing as scheduled.[11] The Single Judge, on the other hand, ordered that while the mainstay of the proceedings should be in open session, those parts dealing with sensitive material shall be held in closed session outside the presence of the public and the participating victims.[12] The Judge also authorized the Accused’s absence.[13]

Prosecutor v. Gbagbo[14]

Decision on the fitness of Laurent Gbagbo to take part in the proceedings before this Court


The Accused filed a motion to delay the start of the confirmation of charges hearing on the grounds that he was not fit to stand trial.[15] In the end the Single Judge found the Accused fit to stand trial.


The Single Judge noted that there is no specific provision in the applicable law of the Court that addresses fitness to stand trial, but rather must be consider a part of the fundamental right to a fair trial.[16] Such standards are applicable through Article 21(3) which requires that the Rome Statute be interpreted “consistent[ly] with internationally recognised (sic) human rights” as they “underpin every aspect of the Statute”.[17] In this respect, the Single Judge found that the jurisprudence of the European Court of Human Rights to be particularly on point.[18] That Court noted that in order “effective participation” requires that the accused be able to understand the proceedings and be able to explain to his representation “his version of the events, point out any statements with which he disagrees and make them aware of any facts which should be put forward in his defence (sic).”[19] The ICTY also adopted a similar position.[20] The Single Judge therefore adopted a similar comprehensive factual analysis to evaluate the accused’s ability to participate in the proceedings.[21]

The Single Judge evaluated three medical reports one of which said the Accused was fit to stand trial.[22] However, considering testimony, the Single Judge was convinced that the Accused was fit to stand trial with modifications to procedure to assist him in light of his current medical problems.[23]

[1] IT-04-75-T, 31 October 2012.

[2] Ibid at ¶ 2.

[3] Ibid. at ¶ 3.

[4] Ibid. at ¶ 9.

[5] STL-11-01/PT/AC/AR126.1, 1 November 2012. Details taken from the headnote to the decision.

[6] ICC-01/04-01/07, 17 October 2012.

[7] ICC-02/11-01/11, 26 October 2012.

[8] Ibid. at ¶ 6.

[9] Ibid. at ¶ 8.

[10] Ibid. at ¶ 9.

[11] Ibid. at ¶¶ 12-14.

[12] Ibid. at ¶ 16.

[13] Ibid. at ¶ 17.

[14] ICC-02/11-01/11, 2 November 2012.

[15] Ibid. at ¶ 1.

[16] Ibid. at ¶ 43.

[17] Ibid. at ¶ 45.

[18] Ibid. at ¶ 46.

[19] Ibid. at ¶ 47.

[20] Ibid. at ¶ 49.

[21] Ibid. at ¶ 51.

[22] Ibid. at ¶¶ 67-68.

[23] Ibid. at ¶¶ 101-102.

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Review of International Tribunal Decisions for the weeks of October 15 & 23, 2012

This week’s review has decisions form the International Criminal Tribunal for the Former Yugoslavia (ICTY), the Special Tribunal for Lebanon (STL) and the European Court of Human Rights (ECtHR). The range from the legality of the tribunals, protective measures to extradition.

International Criminal Law


Prosecutor v. Stanišić & Simoatović[1]

Decision on Serbia’s Requests for Provisional Protective Measures In Relation to Defence Documents


Serbia requested provisional protective measures for several documents in the possession of the defense.[2] Some of the documents were voluntarily provided by Serbia to the defense and some were Serbian documents independently acquitted by the Defense.[3] The Prosecution objected to the request for protective measures for the documents not provided by Serbia on the grounds that the State lacked standing to make the request.[4] The Chamber granted the request for provisional protective measures.


The Chamber noted that neither the rule nor the Appeals Chamber jurisprudence provided for, nor denied, the granting of protective measures for material not supplied by a State but otherwise originating from its official documents.[5] The Chamber then noted that the purpose for the relevant rule was to protect the national security interests of a State and thereby promote cooperation with the Tribunal.[6] However, such an order would apply on to use at the Tribunal and not to the source of material, which could do as it so pleases.[7] With these limits in mind, the Chamber granted the provisional protective measures.


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

Decision on the Defence Appeals Against the Trial Chamber’s “Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal”


The Defense challenged the legality of the Tribunal before the Trial Chamber and lost, this is the resulting appeal. The Appeals Chamber also rejected the Defense challenge.


The Appeals Chamber rejected the Defense challenge finding that the UN Security Council created the Tribunal and that such decisions were not reviewable by the Tribunal. This is because the decision was based on “a plethora of complex legal, political, and other considerations” for which no “meaningful standard of review” existed. Furthermore, the existence and means for dealing with a threat to international peace and security “lies in [the Security Council’s] discreation”.

International Human Rights Law


Makhmudzhan Ergashev v. Russia[9]

Chamber Judgment


The case concerned the Russian authorities’ decision to extradite a Kyrgyzstani national, who is an ethnic Uzbek, to Kyrgyzstan. The Court found a violation of the European Convention.


The Court held that, at present, there was a real risk Mr Ergashev would be ill-treated if extradited, in particular in view of the widespread use of torture against members of the Uzbek minority in the southern part of Kyrgyzstan. Given the current situation, it was doubtful that the local authorities could be expected to abide by the central government’s assurances that he would not be ill-treated.

It was the first time the Court examined on the merits the risk of treatment proscribed by Article 3 in Kyrgyzstan, where clashes between ethnic Kyrgyz and ethnic Uzbeks had erupted in 2010.

Smolorz v. Poland[10]

Chamber Judgment


The case concerned a journalist who published a highly critical article on the subject of communist-era architecture in the city of Katowice, Poland. He received a civil penalty for having damaged the good reputation of one of the architects named in the article. The Court found a violation of the applicant’s right to the freedom of expression


The Court held, in particular, that Mr Smolorz and his opponent were public figures who had been engaged in a public debate concerning an issue that could be described as “historical”. The Court found that the Polish courts had demonstrated rigidity and had given insufficient consideration to the context and nature of the disputed article. It also reiterated that the registers of sarcasm and irony were perfectly compatible with journalistic freedom of expression.

[1] IT-03-69-T, 19 October 2012.

[2] Ibid. at ¶¶ 1, 5.

[3] Ibid. at ¶¶ 2-4.

[4] Ibid. at ¶¶ 2, 4.

[5] Ibid. at ¶¶ 13-14.

[6] Ibid. at ¶ 15.

[7] Ibid. at ¶ 16.

[8] STL-11-01/PT/AC/AR90.1, 24 October 2012. These notes are taken from the Headnote of the decision, a more detailed discussion will follow at a later date.

[9] Application no. 49747/11, 16 October 2012. All text is taken from the press release.

[10] Application no.17446/07, 16 October 2012. All text is taken from the press release.

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