This week has international criminal law decisions from the International Criminal Tribunal for the Former Yugoslavia (ICTY), the Extraordinary Chambers in the Courts of Cambodia (ECCC) and the International Criminal Court (ICC). The European Court of Human Rights (ECtHR) is as always our faithful representative in the in the international human rights field. This week, we have a special showing from the New York State Supreme Court in Bronx County which issued a decision dealing with immunity for those who head specialized international organizations.
International Criminal Law
ICTY
Prosecutor v. Mladić[1]
Fourth Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts Concerning the Rebuttal Evidence Procedure
Background
The Prosecution filed a motion, inter alia, requesting that the Chamber adopt a specified five-part procedure for the admission of adjudicated facts, their challenge and the Prosecution’s ability to respond to any defense challenge to those facts.[2] The Chamber denied the motion.
Reasoning
The Chamber noted that if the Prosecution were allowed to offer “rebuttal” evidence to a potential defense challenge to an adjudicated fact, the rule allowing the admission of adjudicated facts would lose its purpose.[3] However, where an adjudicated fact is admitted and the defense challenges it, the Chamber is then in the position of weighing a “fact” and evidence, something that is not conducive to finding the truth.[4] The Chamber found that once a fact has been judicially “noticed”, the standard procedure for the introduction of evidence will be sufficient by allowing the Accused to challenge the fact on cross-examination and the Prosecution to offer additional evidence thereafter, or to undermine the Accused’s evidence on its own cross.[5] Since the rules already provide for a workable procedure, the Chamber did not discuss the Prosecution’s proposal.[6]
Prosecutor v. Karadžić[7]
Order to France
Background
The Accused filed a request for the Chamber to issue a letter inviting France to make Milomir Stakić available for a defense interview at the prison facility where he is currently serving out his sentence.[8] France responded by informing the Chamber that the request was being executed, but that national law only requires the State to cooperate with the Tribunal and its organs, not the defense.[9] The Accused responded by requesting the Chamber to issue a binding order to France to cooperate with his defense team and facilitate the interview. The Chamber granted the motion.
Reasoning
The Chamber started by saying that it was in the interests of all involved to resolve these types of issues without getting the Chambers or the Registry involved.[10] But that nevertheless, the Chamber would issue a binding order to resolve the impasse in which the Accused and France seem to find themselves.[11] The Chamber concluded by noting that France has a duty to cooperate with the Accused in his investigations as well as with the organs of the court.[12]
ECCC
Case No. 003
Decision on Personal Jurisdiction and Investigative Policy Regarding Suspect
&
Case No. 003
Decision on Personal Jurisdiction and Investigative Policy Regarding Suspect [Redacted]
The International Reserve Co-Investigating Judge issued these two decisions as to the personal jurisdiction and investigate-ability of two publically un-named suspects. In each he sets out that it is a jurisdictional requirement that the suspects were officials of the Khmer Rouge, however, it is not jurisdictional that they be the most responsible or high ranking, both of which refer to the policy of investigation and prosecution. In the end, the Judge found that both suspects fell within the jurisdiction of the Court and that they should be investigated. He also ordered the decisions be made public “in view of the victims’ right to information”.
ICC
Prosecutor v. Gbagbo[13]
Second Decision on the Prosecutor’s requests for redactions
Background
On 19 April 2012, the Prosecution filed a request for redactions to several documents to which the defense did not respond.[14] He requested redactions of all Prosecution staff names, identity of translators, the date and time of interviews and information identifying prosecution sources.[15] The Single Judge partially granted the motion.
Reasoning
The Single Judge noted that the Prosecution request to redact by type and situation is not consistent with the role of the Chamber to review all redactions on a case-by-case basis.[16] However, in view of the interests “at stake”, the Single Judge will allow the redactions to be filed as proposed with individual reasons to be submitted to the Chamber, preferably at the same time as the redactions are filed.[17]
Prosecutor v. Muthaura, Kenyatta and Ali[18]
Decision on the “Request to Make Oral Submissions on Jurisdiction under Rule 156(3)”
Background
The Accused filed an appeal of the confirmation of charges decision challenging, inter alia, the jurisdiction of the Court and after the other participants filed their replies, the Accused requested permission to make oral submissions on jurisdiction.[19] The Appeals Chamber rejected the request.
Reasoning
The Chamber noted that Rule 156 says that appeals from the confirmation of charges shall be in writing unless the Appeals Chamber decides to convene a hearing.[20] It was noted that the Chamber does not need to give deference to the national legal systems where the case could otherwise be heard that would require such a hearing.[21] The Chamber found that no good reasons had been advanced for such a hearing.[22]
Prosecution v. Gaddafi & Al-Senussi[23]
Decision on the Conduct of the Proceedings Following the “Application on behalf of the Government of Libya pursuant to Article 19 of the Statute”
On 2 May 2012, Libya filed a motion challenging the admissibility of the case against Saif Al-Islam Gaddafi before the ICC.[24] The Chamber therefore had to decide on some procedural issues. The Chamber decided that the postponement request contained in the admissibility challenge and the challenge itself were two different issues that would have to be decided separately.[25] The Chamber then decided that even though Mr. Gaddafi had not been surrendered to court or appeared voluntarily, that his procedural rights must be honored by allowing his as-of-present court appointed counsel the right to submit observations during the admissibility challenge.[26] The Chamber also appointed counsel for the victims that had so far communicated with the Court.[27]
Public International Law
Supreme Court of the State of New York, Bronx County Civil Court
Nafissatou Diallo v. Dominque Strauss-Kahn[28]
(Decision on Motion to Dismiss)
Background
On 14 May 2011, an incident occurred at the Sofitel Hotel in New York City that gave rise to allegations of sexual assault against Mr. Strauss-Kahn, who at the time was the Managing Director of the International Monetary Fund. The criminal charges were subsequently dismissed, but a civil suit was filed by the alleged victim Ms. Diallo. Mr. Strauss-Kahn filed a pre-answer motion to dismiss based on absolute immunity. The Trial Judge denied his motion.
Reasoning and Comment
The case was decided on national law grounds, essentially, that the United States Congress had passed a statute that limited persons such as Mr. Strauss-Kahn’s immunity to that of “functional” immunity. As such, he had no defence of “absolute” immunity.[29] The Court also invoked an “esptoppel” theory of sorts. It held, “If Mr. Strauss-Kahn was entitled to absolute immunity […] there was ample opportunity before now to assert it. If he is correct […] the need for a criminal prosecution would have been obviated […] But his explanation for not raising immunity during the criminal proceedings […] concerned his desire to clear his name. […] however, Mr. Strauss-Kahn’s decision to deliberately forebear from asserting available immunities should not, as a matter of customary international law or fundamental fairness, be used to prevent another from exercising legal rights otherwise available. In other words, Mr. Strauss-Kahn cannot eschew immunity in an effort to clear his name only to embrace it now in an effort to deny Ms. Diallo the opportunity to clear hers.”[30]
However, there is a disturbing stream of thought in the decision, at least from the perspective of an international lawyer. The Court declares that “[t]he United States of America, through its political processes can make laws, ratify treaties or issue judicial pronouncements which require a non-citizen employee of a specialized agency, here on our soil as part of the fabric of international governance, to behave, in their private conduct, in a lawful way failing which to be answerable in courts of law or other tribunals under the same standards as their next door American neighbors. At a time when issues concerning human rights significantly shape today’s international law, customary or otherwise, it is hardly an assault on long standing principles of comity among nations to require those working in this country to respect our laws as American working elsewhere must respect theirs.”[31] This paragraph opens up the legal possibility of legislating away diplomatic immunity for other types of envoys. It also refers to international law and comity in the same breath, implying similarity in function and principle and failing to recognize the difference between the two. After all, if human rights is what matters, and the United States has legislative authority, why should ambassadors be allowed to commit crimes and benefit from immunity?
International Human Rights Law
ECtHR
Ilker Ensar Uyanik v. Turkey[32]
Chamber Judgment
Background
This case concerned the proceedings brought in Turkey by the applicant to obtain the return of his child to the United States, where he lived with his wife. She had remained in Turkey with their daughter following a holiday in that country. The Court found a violation of Article 8 (right to respect for private and family life).
Reasoning
In particular, the Court found that the Turkish courts had failed to carry out a thorough assessment of the entirety of the applicant’s family situation, omitting, among other things, to examine it in the light of the principles set out in the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”).
[1] IT-09-92-PT, 2 May 2012.
[2] Ibid. at ¶¶ 5-6.
[3] Ibid. at ¶ 17.
[4] Ibid. at ¶ 15.
[5] Ibid. at ¶ 19.
[6] Ibid. at ¶ 21.
[7] IT-95-5/18-T, 4 May 2012.
[8] Ibid. at p. 1.
[9] Ibid.
[10] Ibid. at p. 3.
[11] Ibid.
[12] Ibid.
[13] ICC-02/11-01/11, 2 May 2012.
[14] Ibid. at ¶¶ 5-6.
[15] Ibid. at ¶ 7.
[16] Ibid. at ¶ 16.
[17] Ibid. at ¶ 17.
[18] ICC-01/09-02/11 OA 4, 1 May 2012.
[19] Ibid. at ¶¶ 1-5.
[20] Ibid. at ¶¶ 9-10.
[21] Ibid. at ¶ 11.
[22] Ibid. at ¶¶ 12-13.
[23] ICC-01/11-01/11, 4 May 2012.
[24] Ibid. at ¶ 6.
[25] Ibid. at ¶ 9.
[26] Ibid. at ¶ 11.
[27] Ibid. at ¶ 13.
[28] Memorandum Decision, 1 May 2012.
[29] Ibid. at p. 9.
[30] Ibid. at p. 12.
[31] Ibid. at pp. 9 – 10.
[32] Application no.60328/09. All information is taken directly from the press release.
The {New} International Law 