Bring your Appeal to School Week: International Justice marches on for Lubanga, Bemba and Sljivancanin

Early December has been quite busy in the Hague international tribunals. The Karadzic flying circus has gotten all the attention in recent weeks, but other decisions require at least being mentionned.

At the ICC, on 2 December, the Appeals Chamber reversed the decision on the interim release of Jean-Pierre Bemba issued last August and where a single judge had decided that changed circumstances allowed for such a release. In its Judgment, the Appeals Chamber found that the pre-trial chamber had misapplied the conditions under which a person could be considered for interim release. We won't go into the details of the reversal, which is in line with the case-law of the ICC up to now, namely, that it is extremely unlikely that any defendant will ever be granted interim release, given the conditions imposed and that the Court, although pretending to apply Human Rights standards, has in effect reversed the principle of liberty and imposes incarceration as a rule.
More specifically, by taking into account the gravity of the crime and possible sentence, a condition which is not contained in article 58, the Appeals Chamber tips the balance in favour of detention. Indeed, All crimes are "grave". That is the whole point of the ICC in the first place. But the day-to-day application of the Statute leads to the fact that we have to accept a hierarchy of gravity between the crimes if the use of gravity within the Statute is to have any sense. Generally, gravity is a continuing thorn is the side of the Judges at the ICC. This is obvious in the interim release decisions, but also in the admissibility case-law where pre-trial, trial and appeal chamber have in effect given up on putting into effect article 17.1)d) of the Statute and left a total discretion to the prosecutor on the evaluation of gravity.

Still at the ICC, the Appeals Chamber yesterday, the 8 December, reversed the Trial Chamber decision on the legal recharacterisation of facts, on which I had commented on in a previous post. The Trial Chamber had decided to use Regulation 55(2) of the Regulations of the Court to pronounce of the possible change in the legal characterisation of the facts in order to include charges of sexual violence in the indictment. The Appeals Judgment is fairly uncontroversial, in the sense that it reverses a criticised decision, but its reasoning is not beyond reproach.
It first finds that Regulation 55 is not in principle incompatible with the Statute of the Court, especially with Article 61(9) on the modification of the charges after the confirmation of charges, or with general principles of international law.
The Appeals Chamber however considers that the Trial Chamber misinterpreted the Regulation because it cannot be read as allowing the Trial Chamber to take into account in its decision facts and circumstances not contained in the charges, as prescribed in article 74(2) of the Statute. Moreover, according to the Appeals Chamber, the addition of new facts and circumstances can only be done in accordance with article 61(9), which gives the prosecutor power to do so. In the words of the Appeals Chamber:

The Trial Chamber's interpretation of Regulation 55 would circumvent article 61 (9) of the Statute and would blur the distinction between the two provisions. As the Prosecutor notes, the incorporation of new facts and circumstances into the subject matter of the trial would alter the fundamental scope of the trial. The Appeals Chamber observes that it is the Prosecutor who, pursuant to article 54 (1) of the Statute, is tasked with the investigation of crimes under the jurisdiction of the Court and who, pursuant to article 61 (1) and (3) of the Statute, proffers charges against suspects. To give the Trial Chamber the power to extend proprio motu the scope of a trial to facts and circumstances not alleged by the Prosecutor would be contrary to the distribution of powers under the Statute.

In deciding that Regulation 55 is not incompatible with article 61(9), but by interpreting article 61(9) as it does, the Appeals Chambers is threading a tight interpetrative rope. Indeed, 1) the article only mentions new charges, not new facts and circumstances and 2) the distinction between the two is difficult in practice. Indeed, what would be the point of a recharacterisation if it didn't affect the charges? Even if trial judges were to recharacterise facts already contained in the charges, it would probably affect the charges themselves, for example by affecting the criminal liability, from direct responsibility to command responsibility. In effect, I do think there is some tension between the two provisions.
Which brings us back to the broader overarching problem of the interaction of civil law and common law in the founding documents. As I pointed out in my earlier post, Article 61(9) is a common law approach, giving discretion to the Prosecutor, whereas Regulation 55 is civil law inspired by giving more power to the judges. Despite the wishful thinking of many, I don't believe that the two approaches are compatible when drafted this way on a case-by-case basis with no clear and explicit relationship between the two.
Finally, a short comment on prosecutorial strategy. This is not discussed in the Appeal, but the Trial Chamber decision was a clear result of the Prosecutor wanting to have his cake and eat it. Indeed, a lot of attention has been devoted to the role of victims in that decision or the tendencies of the Judges, but the Prosecutor is also partly to blame. He chose to prosecute "only" the enlisting of child soldiers, but all through the trial, as early as his opening statement, he insisted on the conditions under which these children operated, especially in relation to sexual abuse. Despite it not being directly relevant, this was obviously done to give some extra gravitas  to the proceedings and the strategy nearly backfired. Maybe the Prosecutor will show more caution in the future.

Finally, on the same date, 8 December, the Appeals Chamber of the ICTY dismissed the motion filed on behalf of Sljivancanin for the Judgment rendered by the Appeals Chamber. In that Judgment, the Appeals Chamber had reversed the finding of acquittal against the Defendant on one of the counts and consequently imposed a sentence in relation to the finding of guilt. Judge Pocar dissented, considering that once the error of the Trial Chamber identified, the case should have been remitted the case to the Trial Chamber for a re-evaluation of the facts in light of the correct application of the law.
The main issue, as argued carefully in the motion, was whether the reversal of the finding of acquittal by the Appeals Chamber and subsequent sentencing, violated the right of Appeal of the Defendant as recognised in Article 14(5) of the ICCPR. The Appeals Chamber, in a short and undocumented decision declines to even consider the motion, considering that "the Appeals Chamber has no power to reconsider its final Judgments".
You can read the motion if you want more details on the reasoning of the Defendant's counsel, but generally I find the decision puzzling. Let's not insist on the whole idea that an acquittal can be appealed by the prosecutor in the first place. I would tend to agree that this should be barred, as in the US constitution, if only because the State (or institution) has unlimited means to get things right the first time, as opposed to the Defence, but apparently, the practice at the ad hoc tribunals is different. What is specifically puzzling here is that, on the face of it, it does appear like a clear violation of the right of Appeal as protected by Human Rights Standards. The Appeals Chamber clearly embarks on a very specific factual analysis of the evidence which is more of a First Instance role than an Appelate role, and apparently didn't recall witnesses or allow "adversarial" discussion. As pointed out by Pocar in his dissent:

The Appeals Chamber enters a conviction based on the trial record without having observed the witness testimony or the presentation of evidence, factors which may be particularly important in assessing witness credibility. In so doing, the Appeals Chamber enters, for the first time in this case, findings on matters which are primarily within the responsibility of the Trial Chamber, such as finding on issues of fact that are crucial to a verdict of guilt. Such findings are now destined to remain unchallenged, in clear violation of Sljivancanin’s right to appeal against convictions.

I don't see how it would not be in the interests of justice for the Appeals Chamber (with the exact same composition as in the impugned Judgment... hum...) to pronounce on the motion, especially when out of the 5 appelate judges, one (Pocar) wanted to send the case back to the Trial Chamber and another (Vaz) actually concurred with the finding of acquittal at the trial level.

All in all, a good week for commentators where international justice marches on, irrespective of the rights of Defence (Bemba, Sljivancanin) and setting aside the requirements of consistency in the intepretation of criminal statutes (Lubanga)...