Internal Investigation Opened against members of the Prosecutor's office at the ICTY

The conduct of the OTPs of international tribunals has often been questioned with regards to witnesses. I recently blogged about the stay of proceedings in the Lubanga trial at the ICC, following the Prosecutor's refusal to follow the court order requiring him to provide a list of certain intermediaries whose conduct in relation to witnesses had been questioned by the defense. At the Special Court for Sierra Leone, there have been allegations that prosecution witnesses were bribed to obtain their testimony.

In relation to this, I have just become aware of this order from Trial Chamber III in the Seselj case, ordering an independent amicus curiae investigations into allegations by the defendant that the Prosecutor exercised pressure on a certain number of witnesses to secure evidence against him.

The motion for contempt proceedings against, among others, Carla del Ponte was initially filed confidentially in 2007 and the Chamber had ordered "ordered a stay for purposes of ruling on the Motion for Contempt until the conclusion of the trial in order to avoid delaying the start of the trial". However, in light of new evidence, the Chamber decided to exercise its proprio motu powers to reconsider its decision.

The Defense provided a list of alleged misconduct by the Prosecution, as illustrated in the following paragraph:

17. The Statements allege as fact that the Prosecution indeed contacted these persons and that interviews were indeed conducted by investigators working for the Prosecution. As such, the Statements mention sleep deprivation during interviews, psychological pressuring, an instance of blackmail (the investigators offered relocation in exchange for the testimony they hoped to obtain), threats (one, for example, about preparing an indictment against a witness if he refused to testify), or even illegal payments of money. According to certain Statements, the testimony produced from the interviews with the investigators from the Prosecution was not (or almost never) re-read by the persons signing it. In the Statement signed by [redacted], there is even an account of him allegedly signing the first page and the members of the Prosecution allegedly signing his initials on the other pages themselves. In the Statement signed by [redacted], there is mention that he allegedly had an interview with the members of the Prosecution in a public place. Lastly, in the Statement signed by [redacted], it is mentioned that he was allegedly poisoned.

 In light of this, the Chamber held that:

29. This information is taken quite seriously by the Chamber, which refuses to allow any doubt to fester concerning a possible violation of the rights of the Accused and concerning the investigation techniques employed by certain members of the Prosecution in this case.

 and therefore "the Chamber finds that an amicus curiae ought to investigate the Motion for Contempt and inform the Chamber whether there exist prima facie sufficient grounds to initiate a proceeding for contempt against certain members of the Prosecution." The investigator should be designated by the Registrar (which hasn't done it yet, to the best of my knowledge) and will be given 6 months to investigate.

Given the gravity of the alleged conduct, one would also expect the proceedings to be stayed until the conclusion of the investigation, but apparently this has not been ordered.

Hat-tip to Priyanka

Bangladesh War Crimes Tribunal: step forward for the fight against impunity, leap back for the rights of the defense...

I had completely missed the fact that Bangladesh created this year a special Tribunal to prosecute the crimes committed during the 1971 war of independence against Pakistan. The Tribunal started functioning in March this year, at the same time as Bangladesh ratified the Rome Statute, and apparently issued its first arrest warrants this week.

One aspect that caught my attention is the denomination given in one article: "International Criminal Tribunal", and the fact that it was set up with the assistance of the UN. Are we therefore in the presence of a new hybrid Court? In fact, the denomination is not the official name of the court, and there was no formal agreement between the UN and the country, so it's a purely national tribunal.
[UPDATE: The confusion on the name of the tribunal is due to a mistake by the JURIST: ICT stands for "International Crimes Tribunal", not "International Criminal Tribunal". See ICTJ report issued July 30th]
[UPDATE: The JURIST has corrected the mistake]

Another interesting aspect is the applicable law, the 1973 International Crimes (Tribunals) Act, which was amended in 2009. As pointed out by Steven Kay at ICLB, it's an interesting and little known piece of post-Nuremberg and pre-UN war crimes tribunal legislation".

It gives the tribunal jurisdiction over crimes against humanity, genocide, crimes against peace, violations of the Geneva Conventions, and "any other crimes under international law", the last one raising obvious questions in respect to the principle of legality.

Apart from jurisdiction, I saw three other notable features of the procedure. 

The section on the rights of the accused is quite succinct. It reads as follows:

17. (1) During trial of an accused person he shall have the right to give any explanation relevant to the charge made against him.

[...]

(3) An accused person shall have the right to present evidence at the trial in support of his defence, and to cross-examine any witness called by the prosecution.

The accused basically has a right to defend himself against the charges. What a relief... and there is no mention of the presumption of innocence.

The section on evidence is also quite striking:

19. (1) A Tribunal shall not be bound by technical rules of evidence; and it shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and may admit any evidence, including reports and photographs published in newspapers, periodicals and magazines, films and tape-recordings and other materials as may be tendered before it, which it deems to have probative value.

[...]

(3) A Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof. 

(4) A Tribunal shall take judicial notice of official governmental documents and reports of the United Nations and its subsidiary agencies or other international bodies including non-governmental organisations.

 At least, the Act is honest about its desire for expeditiousness. I'm just a little curious as to what "non-technical procedure" is... It sounds like a nice way of saying "absence of procedure"... Also, the scope of possible judicial notice is quite wide, to say the least. The Bangladesh Government is well know for its spotless and impartial record in reporting, and the UN and NGOs always get it right. Why not just take judicial notice of the accused's guilt (everybody probably knows he's guilty) and not have a trial at all...

Finally, in terms of judgment and sentence (Article 20), there is no mention of the burden of proof for conviction and the Act provides for the application of the death penalty.

Once again, the rights to a fair trial take a back seat to the fight against impunity, despite the legitimacy of the latter depending in large part on the respect of the former. In this case, the UN and NGOs should distance themselves from this endeavor (I've done a rapid search on google, but failed to find any condemnation. If anybody cares to point me towards them if they exist? to be fair, a HRW report does call for respect of the rights of the defense and non-application of the death penalty) which appears to be a mockery of justice.

Just to be clear, I'm not suggesting that Bangladesh can't do want it wants. If that is what the Bangladesh population want, fair enough. But the international community cannot and should not officially support it.

[UPDATE: The Criminal Law Forum has a Special Issue on the Bangladesh Tribunal this month]

[UPDATE: I was using the version of the Act before the 2009 amendments (i've updated the link to the law with the correct version now). The parts I analyse are however unchanged. But to be fair and comprehensive, I should point out that they did add a new provision which states that:

(2A) The Tribunal shall be independent in the exercise of its judicial functions and shall ensure fair trial.

And to think that I was doubting that in light of the rest of the Act... I'm totally reassured now...]

The First Judgment at the (un)Extraordinary Chambers in Cambodia and the question of Crimes against Humanity

The Extraordinary Chambers in the Courts of Cambodia (ECCC), which started functioning in 2006 after lengthy negotiations to try the (remaining) leaders of the Khmer Rouge Regime, issued its first Judgment today in the trial of KAING Guek Eav alias "Duch", the former commander of the infamous S21 prison.

The Judgment was going to have a tough time to maintain the drama of the end of the trial which saw some  extraordinary (no pun intended) bickering between the co-counsels, with one of them being fired and the other suddenly launching in a virulent challenge to the jurisdiction and the legitimacy of the Chamber, despite apparently not having raised the issue previously, and then creating some confusion on the plea entered by his client.

Various comments can be made on this Judgment, for example on victim reparations, and on sentencing. I'd like to briefly focus on its discussion of crimes against humanity.

Indeed, One question which was going to be an issue from the start was the content of customary law at the time the crimes were committed, more specifically in relation to crimes against humanity and the link with the existence of an armed conflict. If today, there is really no doubt, after the case-law of the ad hoc tribunals and the Statute of the ICC, that crimes against humanity can be committed in time of peace, things are not so clear for1975-1979, which is the scope of the temporal jurisdiction of the ECCC.

The Chamber finds that the nexus was no longer required in 1975. Maybe it is right, but it is not convincing. Indeed, the reasoning is just as poor as it was in Tadic. I reproduce the (concise) argumentation of the Chamber for the sake of clarity:

291. In particular, the Chamber notes that Article 5 of the ECCC Law does not require a link between crimes against humanity and armed conflict. Although Article 6(c) of the Nuremberg Charter required a nexus between crimes against humanity and armed conflict, such a nexus was not included in the 1945 Control Council Law No. 10, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the 1954 International Law Commission’s Draft Code of Offenses against the Peace and Security of Mankind, the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, and the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid. The notion of armed conflict also does not form part of the current-day customary definition of crimes against humanity.

292. International tribunals that have subsequently considered the issue have also found that the notion of crimes against humanity existed independently from that of armed conflict under customary international law prior to 1975. The ICTY Appeals Chamber has stated that the armed conflict requirement in Article 6(c) of the Nuremberg Charter was a jurisdictional issue, thus implying that it was not required under customary international law even in 1945. The Grand Chamber of the European Court of Human Rights has noted that, while the nexus with armed conflict initially formed part of the customary definition of crimes against humanity, this nexus may no longer have been relevant as of 1956. The Group of Experts for Cambodia appointed pursuant to General Assembly Resolution 52/135 similarly concluded that “[t]he bond between crimes against humanity and armed conflict appears to have been severed by 1975.” The Chamber therefore considers that the lack of any nexus with armed conflict in Article 5 of the ECCC Law comports with the customary definition of crimes against humanity during the 1975 to 1979 period.

Let's analyse this in order:

• Control Council Law N°10: Yes, the definition of crimes against humanity does not include the nexus with armed conflict (Article II.1.a). However, article I makes the London agreement, which enacts the Nuremberg Statute and which does contain the nexus, an "integral part of this Law". So it is not that clear. Especially as the Nuremberg Principles adopted by the ILC reproduce the Charter of Nuremberg, with the armed conflict nexus, not Control Council Law N°10...
• 1948 Genocide Convention: even if conceptually, I'm in favor of considering genocide as a sub-category of Crimes against Humanity, it was not legally conceived in this way at the time. Genocide is a discrete crime and the fact that the armed conflict nexus is not contained in the definition of genocide is not relevant for knowing if it is still contained in the definition of crimes against humanity. And even if one considers that Genocide is a sub-category of crimes against humanity, the disappearance of the nexus for one form of a crime, does not logically necessarily indicate disappearance for the totality.
• 1954 Code of Crimes: does not even mention crimes against humanity!
• 1968 Convention on non applicability of Statute of limitations: more tricky, as it, at the same time, says that it can be committed both in time of war and in time of peace, and says that it is defined by the Nuremberg Charter which does include the nexus. 
• 1973 Convention on Apartheid: Same as for genocide, the absence of the nexus for one occurrence of crimes against humanity, does not logically imply the absence of the nexus for all crimes against humanity. You could even argue that it the specific nature of Apartheid that justifies the exclusion of the nexus. Also, the Convention only came into force in 1976, so one can wonder at the customary nature of the content of the treaty at that point in time...  
• Tadic: The Appeals Chamber in Tadic deals with the issue in the same way. Affirming with little evidence that the nexus no longer exists. More specifically, it considers that it "was peculiar to the jurisdiction of the Nuremberg Tribunal" and that "there is no logical or legal basis for this requirement" (§140). For one, it doesn't explain why it was "peculiar". Second of all, the question of the "logical" basis is not relevant for a court of law the function of which is to apply the law, not question its logic. I could point out several instances of lack of logic in the drafting of the ICC Statute, but it doesn't mean that Judges should be allowed to change it as they see fit. And thirdly, linked to the second point, the "legal" basis is that it is in the law! The drafters of the Nuremberg Statute decided to put the nexus there, so that constitutes the legal basis for the nexus.
• ECHR and group of experts: nothing much to add to this, apart from 1) questioning the relevance of these statements for the ECCC and 2) pointing out that "may no longer have been relevant" and "appears to have been severed" hardly seems like strong enough evidence to rely on to establish the content of a customary norm with sufficient certainty as to conform with the principle of legality.

But even if one were to accept these references, what is notable is the absence of evidence relating to the traditional components of customary law. I was taught in university that you needed to establish both opinio juris and state practice in order to identify the existence of a customary rule, not international case law or pronouncements by experts. However, the expression "opinio juris" appears nowhere in the reasoning and there is no mention of state practice whatsoever at this point in the argumentation (Eichmann is given as the sole example of  State practice for prosecution of crimes against humanity earlier on in the Judgment). The ECCC therefore managed, and it is quite a feat, to be even less convincing than Tadic, which at least formally claimed that the nexus "has been abandoned in subsequent State practice with respect to crimes against humanity", without however quoting even one relevant national criminal code...

I suppose that after the slamming of JCE by the ECCC Pre-Trial Chamber in the Ieng Sary Case, I had unreasonable expectations, but it turns out that in fact, there is nothing extraordinary about the Extraordinary Chambers in the Courts of Cambodia...

Some Additional Thoughts on the ICJ Advisory Opinion

I've read through the main opinion and the other opinions and it confirms my initial impressions during the issuance of the Opinion yesterday afternoon.

On jurisdiction, I was a little puzzled by the length of the discussion on the question of whether the Court should exercise its discretion in relation to the question. It all seemed quite basic stuff, given past case-law of the Court which has generally said that 1) the fact that the Security Council is dealing with something doesn't mean another organ can't discuss it and 2) the political dimensions of a question do not prevent a legal analysis. However, some dissenting opinions (Bennouna, Skotnikov, Keith, Tomka) actually thought that the Court should have declined to answer the question.

On the scope of the question, I'm generally not in disagreement with the opinion. Some separate opinions consider that it was too narrow. Judge Simma said it applied too strictly a "tired" version of the Lotus logic that what is not proscribed is allowed. For him, there is a more public law aspect to international law today, and the Court should have done a more thorough search of the relevant law on independence before answering the specific question. Judge Trindade, in a separate opinion 1,5 times the size of the majority opinion, launched himself in a emotional, but in my opinion ultimately irrelevant plea for taking into account "human suffering" as a criteria for independence. Equally, Judge Yussuf thought the Court could have taken the opportunity to define the scope of self-determination in a post-colonial world. Others (Koroma) thought that it was still too broad and that the Court went beyond its powers in considering that when the GA explicitly mentioned the authors of the UDI as the "Provisional Institutions of Self-Government of Kosovo", they actually didn't mean that, and wanted to know who the authors are. I would tend to agree with that actually. The fact, as the Court points out, that this was not discussed in the GA debates, doesn't necessarily mean that it was an open issue, it might just mean that it was a settled issue. By second guessing the GA like it does, the Court is opening itself to the criticism of why it is re-interpreting the question in this instance, and not in another (for example, by saying that the GA really wanted to know if Kosovo was an independent State).

Which brings me to my main point of contention with the decision: that the authors of the UDI were not acting in their official capacity as Members of the Assembly. The reasoning is just as unconvincing as I thought. The authors of the declaration met in the Assembly, called a special session of that Assembly, and met as the democratically elected representatives of the people in elections set up under the control of the Constitutional Framework, which is the only basis for their right to be present in the assembly to make the UDI in the first place. But they are still considered as private citizens by the Court, based on their intent to be so considered. How can you evaluate whether someone is bound by a legal framework based on the subjective desire not to be bound?
In this sense, I can only agree with Koroma:

5. It is also question-begging to identify the authors of the unilateral declaration of independence on the basis of their perceived intent, for it predetermines the very answer the Court is trying to develop: there can be no question that the authors wish to be perceived as the legitimate, democratically elected leaders of the newly-independent Kosovo, but their subjective intent does not make it so. Relying on such intent leads to absurd results, as any given group ⎯ secessionists, insurgents could circumvent international norms specifically targeting them by claiming to have reorganized themselves under another name. Under an intent-oriented approach, such groups merely have to show that they intended to be someone else when carrying out a given act, and that act would no longer be subject to international law specifically developed to prevent it.

 And Bennouna:

44. The facts that the authors of the Declaration, members of the Assembly of the Provisional Institutions of Self-Government of Kosovo, cited the breakdown of negotiations and that they did not intend to act within the framework of the interim régime of self-government (Advisory Opinion, paragraph 105) do not by themselves change the legal nature of an act adopted by the Assembly of the Provisional Institutions of Self-Government of Kosovo. In law, it is not merely because an institution has adopted an act exceeding its powers (ultra vires) that the legal bond between the institution and the act is broken. In such a case, the institution must be considered to be in breach of the legal framework that justifies and legitimizes it.

45. Similarly, it is not because the Assembly trespassed on the powers of the Special Representative (Advisory Opinion, paragraph 106) by involving itself in matters of Kosovo’s external relations that it must be considered as acting in a different capacity or as an entity no longer related to the Provisional Institutions of Self-Government of Kosovo. Here as well, the Assembly simply committed an act which is illegal under international law.

Although I'm the first one to defend the ICJ against those who claim that it says what it didn't say, in this part of the decision, i'm struggling to see how the reliance of the ICJ on the intent of the authors of the UDI, and is not an implicit endorsement of the declaration itself.

One final comment on the applicable law. I've read in some comments already that the Constitutional Framework and UNMIK resolutions should not necessarily be considered as applicable international law because "after all they are intended to take effect only within a particular domestic system of law". I would actually side with the ICJ on that one. The question is not the setting (all law is meant to be applied in a specific setting), it's the nature of the norm and the applicable legal order. For me, a territory under UN administration cannot be seen as a national legal order. There's no "national" at this point, or "domestic". Moreover, the source of legal, judicial and even constitutional authority in Kosovo clearly derived from a Security Council Resolution. I don't find it therefore scandalous to conclude that the norms adopted in this context are at least international enough, and sufficiently integrated in the international legal order, to be considered as relevant international law for the ICJ. But I'll have to consider this "hybrid" issue further in my PhD (forthcoming...).

And to conclude on a little poetic note, showing that law needn't necessarily be dry, I love the final line of Bennouna's opinion:

Such declarations are no more than foam on the tide of time; they cannot allow the past to be forgotten nor a future to be built on fragments of the present. 

ICJ Kosovo Opinion Files for Download

The ICJ Website still seems to be unavailable. Here is a link to the opinion, and the separate and/or dissenting opinions by Judges Bennouna, Koroma, Skotnikov, Keith, Sepulveda-Amor, Trindade, Yusuf, Simma and Tomka.

Live from ICJ: Kosovo declaration of independence not in violation of international law, but the Court DOES NOT validate Kosovo independence!

I'm at the ICJ right now with my iphone, so sorry for the typos.
The Court just finished delivering its advisory opinion on the Kosovo declaration of independence.
Having established jurisdiction, it Unsurprisingly adopted a very narrow reading of the question, considering  that it was not asked:
1) to evaluate the legal consequences of declaration
2) whether Kosovo has actually obtained Statehood
3) whether the recognition by other States was legal
4) whether there is a general right under international law to declare independence or secession.
Therefore: the question is really whether the specific declaration was in accordance with international law (both general and specific)?

The Court found that in general international law, there is no prohibition of declarations of independence and that issues of territorial sovereignty or secession are not relevant within the strict boundaries of the question to be answered on the legality of the declaration.

Moving to the lex specialis of SC Res. 1244 and the Constitutional Framework, the Court considered that they were the international law basis for the authority of Kosovo institutions and the boundaries of their powers, at the time of the declaration of independence.

Moving to the interpretation of this applicable international law, it was meant at a temporary solution for the stabilisation of Kosovo.

Illogically, the Court then considers the author of the declaration BEFORE analysing whether the lex specialis contained a clear prohibition of declaration of independence. Here the judgment appears a little hazy (i'll have to to read the decision). The Court seems to consider the subjective perception of the authors of the declaration as not acting under the established legal framework. But whether you are bound by a legal framework doesn't depend on your subjective desire to be or not to be bound. It's an objective test. This is the whole point of ultra vires challenges! The Court in any case finds that the authors were just individuals, rather than the Kosovo Assembly! I'm not convinced at the reasoning at this point. If the French MPs meet in the French Parliament, to which they have access by virtue of their parliamentary Status, i think there is a presumption that they are acting in their official capacity.
Coming back to the contet of the lex specialis, the Court considered that it is silent as to the final Status of Kosovo, suggesting negotiation rather than requiring it, thus not explicitly excluding unilateral declarations. Moreover, a Resolution is only binding on its recipients, which don't include the authors of the declaration as
defined above.

All in all, not a surprising decision. The jurisdictional part and the framing of the question were to be expected. It also makes some interesting comments on the relationship between the various organs of the UN. The key point turned out to be the exact author of the declaration. The conclusion in itself is not that shocking, but the reasoning seems a little poor. In any case, as it stands, the Opinion isn't very useful. Basically, any group of random individuals can declare independence without violating international law... Fantastic...

[UPDATE: the press is characteristically getting it wrong, with for example, Le Monde's headline saying that the ICJ "validates Kosovo Independence", the BCC's headline being, in a slightly less inaccurate way that "Kosovo Independence not illegal", or CNN saying that "Kosovo Independence Legal"... Unsurprinsingly, Serbian websites are more accurate... ]

Is Chad really under an obligation to arrest Bashir?

The news today has been filled with reports about the visit of President of Sudan, Omar Bashir, to Chad, and calls for Chad, which is a State Party to the ICC to arrest him. Beyond any discussion of the political opportunity of such an act, every commentary seems to take for granted that Chad is under a legal obligation to do so.

CNN has a "Court official" (probably OTP...) on the record saying that:

Chad is legally obliged to arrest Omar al-Bashir and hand him over to the International Criminal Court.

According to Human Rights Watch:

Chad should not flout its obligations to arrest al-Bashir if he enters Chad. 

 Same tune at Amnesty International:

If it were not to arrest him, Chad would violate its obligations under the Rome Statute of the International Criminal Court, which it ratified in November 2006.

 I'm not sure that's actually true. Sure, the Statute, at Article 86 provides that (my emphasis):

States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.

 However, "in accordance with the provisions of the Statute", there is in fact no automatic obligation to cooperate in relation to the execution of an arrest warrant. Indeed, Article 89 provides that the Court must make a request for cooperation to a State. The request must contain specific information outlined in Article 91 (such as a copy of the arrest warrant). Only then does the Statute provide (Article 89(1)) that (my emphasis):

States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.

To my knowledge, there hasn't been such a request.

Second of all, even if the ICC had made a request for cooperation, the fact that Sudan is not a State Party can trigger the application of Article 98(1), according to which:

The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.

It's arguable that Bashir, as an acting head of State, does benefit from diplomatic immunity, in application of the ICJ Arrest Warrant Case (for a discussion of the immunity question in the Bashir case, see here). If that were the case, not only would Chad not be under an obligation to cooperate, but the request itself would be contrary to the Statute.

So, all in all it's far less obvious than claimed, that Chad is in fact under an automatic obligation to arrest and surrender Bashir. Of course, in a week where the Prosecutor himself has publicly considered that the issuance of an arrest warrant is proof of guilt (See commentaries of this by William Schabas and Kevin John Heller), one stops being surprised by poor legal argumentation...

Partial retrial ordered in Haradinaj

The ICTY Appeals Chamber just released its Judgment in the Haradinaj, Balaj and Brahimaj case. The Trial Chamber, in its April 2008 Judgment had acquitted the first two, and convicted the third for two counts of torture. The Appeals Chamber decided, with the President Judge Robinson dissenting, to partially quash the two acquittals and order a partial re-trial, because:

49. [...] the Trial Chamber failed to take sufficient steps to counter the witness intimidation that permeated the trial and, in particular, to facilitate the Prosecution’s requests to secure the testimony of Kabashi and the other witness. Given the potential importance of these witnesses to the Prosecution’s case, the Appeals Chamber finds that, in the context of this case [of systematic witness intimidation], the error undermined the fairness of the proceedings as guaranteed by the Statute and Rules and resulted in a miscarriage of justice.

Several comments about this decision.

For one, the basis for the motion by the Prosecutor was a "breach of the Prosecution's right to a fair trial". But since when does a Prosecutor have fair trial rights? He's an organ of the judicial system. Fair Trial rights exist to protect the defendants in their relation with the judiciary, not one organ of the judiciary against another organ of the judiciary. As Patrick Robinson puts it in his dissenting opinion:

17. By virtue of the burden placed on the Prosecution to prove the guilt of the accused person beyond reasonable doubt, the position of the Prosecution is in many ways different from the position of the accused person. Thus, the Prosecution has duties, which the Defence does not have, and the Defence has rights, which the Prosecution does not have. Properly analysed, the relationship between the Prosecution and Defence is not symmetrical; it is, because of the aforementioned burden, asymmetrical.

This is yet another example of a misapplication of human rights principles due to the decontextualisation of the reason of their existence and therefore a complete misunderstanding of their ethos and telos. In a similar fashion, the ICC Prosecutor had claimed a "right of appeal" when leave to appeal had been refused in the early witness participation decisions in the DRC situations. The Appeals Chamber at the time had rejected the motion.
It should be pointed out, however, that in the course of its reasoning, the Chamber does not really take up this idea of "prosecution fair trial rights". It does so once:

46. this decision again inappropriately prioritised logistical considerations over the Prosecution’s right to a fair trial.

[UPDATE: The Chamber issued on 23 July a corrigendum where it says that in paragraph 46, it meant to say "fairness of the proceedings" and that the mistake is due to a "clerical error". Blame it on the clerks... I'm sure that explains Tadic as well...]

but refers more generally to the "fairness of the proceedings", as illustrated by the above quoted passage. This is far less controversial, and shows that the issue could have been solved without opening the can of worms of Prosecution rights. And it therefore begs the question of why the Prosecution framed the question in this way in the first place. One worrying conclusion is that the OTP (and the Chamber when it picks up on it that one time) didn't see the semantic difference between "interests" (which the Prosecutor has), "rights" (which the Prosecutor doesn't have) and "the fairness of the proceedings" (as a general principle of good administration of justice). You would expect professional jurists to know that words have a meaning...

The Appeals Chamber missed an opportunity to explicitly reject the Prosecutor's reasoning. What it does here is a little more confusing, because it agrees with the Prosecutor, but doesn't clearly indicate that it is so doing on a different (and more accurate) reasoning, as you generally see in decisions. [Reading the judgment too fast the first time around, I actually got confused and, in the absence of a clear rejection of the OTP's reasoning, attributed the Prosecution argument to the Appeals Chamber. Thank you to my anonymous commentator for setting the record straight! And in my defense, the Chamber does refer to "Prosecution fair trial rights" once and Robinson himself must have considered the majority decision unclear, because he takes upon himself to clarify the situation.]

A problematic aspect is the standard of review. Given that the Trial Chamber was exercising a discretionary power, it has a certain leeway in its decision-making which in turn usually means that the Appeals Chamber only interferes when there is an obvious misuse of discretion. However, what the Appeals Chamber does here is substitute what it would have done if it had been the Trial Chamber. This is beyond the scope of the function of the Appeals Chamber, as highlighted in Judge Robinson's dissent:

7. The question of how many extensions to grant, whether one, two, or one hundred, or whether to stay or adjourn the proceedings, relates to the detailed day-to-day management of the case and is a matter best determined by the Trial Chamber in light of all the relevant circumstances. This is not a judgement for the Appeals Chamber to make. I would have granted more than three extensions or adjourned or stayed the proceedings, and the Majority itself might have done the same, but that is irrelevant. For it is not the appellate function to determine the sufficiency of the extensions granted by the Trial Chamber absent a clear indication of an abuse of the Trial Chamber’s discretion. And were we to do so, we would simply be substituting our own exercise of discretion for that of the Trial Chamber without any proper basis.

In effect, it appears from the Judgment that the Trial Chamber did in fact take into account the circumstances of the case and the importance of the witnesses by granting three consecutive extensions to the Prosecutor in order to allow him to secure witness testimony, so clearly, on the face of it, it did take into account relevant factors for the exercise of its discretion.
More generally, given the length of proceedings at the ICTY, the idea that the Prosecutor is not given enough time seems slightly puzzling. In this case, the indictments were issued in March 2005 (so presumably, the investigation had already been going on for a while), it took 2 years for the trial to begin in March 2007, and it lasted about 10 months, until January 2008. Even accounting for the specific difficulties of international investigations in difficult circumstances, you'd expect the Prosecutor to have had enough time to prepare a good case in that time and that its solidity would not depend on a last minute hiccup with a couple of witnesses... and even in this event, there comes a moment when it is legitimate for a Trial Chamber to move the proceedings forward in the interests of the defendants and in light of the right to be judged without undue delay. In the absence of proof of witness intimidation or tampering, at some reasonable point in time, the Defendant should not bear the consequences of the Prosecution's failure to secure sufficient evidence for a conviction.

A final general comment. Once again, we have a dissenting opinion which seems to make more sense than the majority decision. I'm not familiar enough with all the case-law of the tribunal to claim that dissenters always get it right, but my empirical experience is that I generally agree with the dissents (Schomburg on JCE, Pocar on reversal of acquitals). I think it might have to do with the fact that once a judge has taken the step towards dissent, he frees himself of the shackles of the internal politics of consensus which leads to sometimes inconsistently argued collective decisions, as illustrated in the present case, whereas dissenting opinions will have more chances of being intellectually consistent, and therefore make more sense. Any thoughts on that?

Another Fair Trial issue for today: Sljivancanin Appeals Judgment to be revised

In one of the ongoing sagas of this blog, and on a day apparently dedicated to fair trial issues (see previous post), the Appeals Chamber of the ICTY issued a decision today granting the motion to review of the Appeals Judgment in the Slivancanin case. The Judgment had controversially added, with two judges dissenting, a new conviction for aiding and abetting murder as a violation of the laws and customs of war. As I commented in the past, a first request for review for initially rejected. However, Counsel made a new motion based on the existence of new evidence, which was heard early June. It is this new fact as defined by article 26 of the Statute that compels the Chamber to allow the possible revision of the Judgment. 

The new fact, which is witness evidence that the accused did not in fact express the mens rea for the crime in a conversation, contrary to what had been found by the Appeals Chamber. In accepting this, the Chamber finds that (p. 4):

Although the Panic New Fact was discoverable through due diligence by Sljivančanin’s counsel, review of the Mrksic and Sljivančanin Appeal Judgement is necessary because the impact of the Panic New Fact, if proved, is such that to ignore it would lead to a miscarriage of justice.

This is of course perfectly reasonable... but is a little ironic given the way the case unfolded. Indeed, the Trial Chamber had drawn no conclusion from the conversation between Mrksic and Sljivancanin under consideration. It was only the Appeals Chamber which inferred from the conversation that Mrkšić must have told Šljivančanin that he had withdrawn the “JNA” protection from the prisoners of war held at Ovčara, subsequently "relied on these findings to conclude that Sljivančanin possessed the mens rea for aiding and abetting murder as a violation of the laws or customs of war" (p. 3). How could the defense be expected to provide evidence on an event that the Trial Chamber had not even found as being relevant? It is only with the Appeals Judgment, where the judges are basically reviewing evidence as if they were the trial chamber, that the Defense can actually know what evidence it has to contest. That's hardly compliant with fair trial rights!

The granting of the motion is obviously a step in the right direction for making sure those rights are respected, but it doesn't remedy the profound flaw of a process which allows the Appeals Chamber to de facto review evidence as a Trial Chamber would and reverse acquittals without any possible appeal from the new conviction in clear contradiction with human rights standards.

When is a "Fair Trial" really a "Fair Trial" ?

Commenting on a recent decision by PTC I at the ICC, William Schabas invites comments on the powers of the Chamber in relation to media statements by members of the OTP. In a nuthsell:

The Chamber chastised Beatrice le Frapper du Hellen, who is a senior official in the Office of the Prosecutor, for remarks that she made in an interview with the lubangatrial.org blog.
The Chamber referred to the fact that much of the Lubanga trial has not been open to the public.Accordingly, the public needs to be able to trust the published statements of those involved in the case, as reflecting, in a suitably balanced way, the evidence that has been heard and the decisions that have been made. It is important that in media statements there is a clear and accurate description as to whether issues that are reported have been decided or are still unresolved. Most importantly, and as a matter of professional ethics a party to proceedings is expected not to misrepresent the evidence, to misdescribe the functions of the parties or the Chamber, or to suggest or imply without proper foundation that anyone in the case, including the accused, has misbehaved.
The Chamber said that Beatrice le Frapper du Hellen had not abided by these principles.'in a manner that is prejudicial to the ongoing proceedings (in the sense that they tend to prejudice the public's understanding of the trial), which tends to bring the Court into disrepute'. It said it would take no further action than to express 'the strongest disapproval of the content of this interview' but warned that 'if objectionable public statements of this kind are repeated the Chamber will not hesitate to take appropriate action against the party responsible'.

And the problem as identified by Professor Schabas is as follows:

This issue is not expressly regulated by the Rome Statute or the Rules of Procedure and Evidence, and we may well ask on what the Trial Chamber might base its authority to 'take appropriate action' in the case of 'objectionable public statements'. This is part of a larger issue that is looming with respect to the implied or inherent powers of the judges at the Court. In last week's decision on the stay in Lubanga, the Trial Chamber seemed to think it had the power to order the Prosecutor to do certain things, such as reveal names of 'intermediaries'. But does it really have such a power? I think that its authority to stay proceedings in the event of a flagrant denial of the right to a fair trial cannot be questioned, and to that extent the decision certainly has a legal basis. But that is because the Chamber controls the trial itself. But can it make orders, and sanction people, for activity outside of the courtroom? Where does this power come from? And if it exists, where does it end? Should I, as an ICC-obsessed blogger, start to worry that I might too be subject to 'appropriate action' if I make an 'objectionable public statement'? I am inclined to think that it could stay the proceedings if a third party - such as myself - made an 'objectionable public statement' that drastically compromised the fairness of the trial itself, but that it can do no more than that.

On principle, I don't find it shocking that within its powers to ensure that fair trial requirements are met, a Chamber could exercise control over the conduct of the parties, in, and out of court. However, the key issue here, before dealing with the exact scope of that control, is what do we mean by "fair trial"? In my opinion, any conduct should affect "fair trial" in a strict procedural interpretation. For example, if the OTP was paying defense witnesses not to testify, or using intermediaries that provide false evidence.
This being said, in this decision, I believe they have much too broad an approach to the notion of "fair trial". Fair trial is to be evaluated within the proceedings, not outside. This is not a trial by jury, where the the members of the jury might be influenced by unbalanced press reports. The Judges at the ICC are professionals that in theory should not be affected by what a party might say in the press. The "public's understanding of the trial" is not a component of "fair trial". Indeed, whether the general public gets a correct picture of the proceedings (whatever that means... given that perceptions of a trial will always vary depending on the viewer's original bias) is none of the judges' business, even if from a broader perspective, one can only wish that fair reports of the trial be available to the public.

With this in mind, I don't see anything that affects the fair trial of Lubanga in the interview given. Of course the OTP is going to say that its witnesses are reliable, if not it wouldn't have chosen them in the first place. For similar reasons, it is not surprising that the OTP will express trust towards its intermediaries. It is the opposite that would be astonishing. And there's nothing shocking in the OTP expressing its belief that Lubanga is guilty, if not they wouldn't have initiated the case in the first place. Moreover, nothing in those statements undermine the power of the Chamber to effectively determine whether the the witnesses are reliable, the intermediaries trustworthy and Lubanga innocent or guilty. Each one is within his institutional role.
This doesn't mean that one cannot regret the rhetorical shortcuts adopted by OTP members, most notably Mr. Ocampo (recall when he compared Bashir reelection to Hitler's election...). These statements are certainly careless, inappropriate and possibly give a warped image of the ICC, but they are not strictly speaking fair trial issues. If made in Court, these statements could be questioned by the bench, based on basic principles of civility, rather than fair trial requirements. This is what happened in Sierra Leone where David Crane was chastised for referring to "Dante's inferno" and the "hounds of hell" in one of his opening statements.
As for third parties, given my strict approach to fair trial, I do not believe that the critical blog musings of William Schabas or myself could constitute a violation of fair trial requirements and therefore taken into account for a stay of proceedings. If not, all academic or NGO activity on an ongoing case should come to a stop until the verdict... More generally, given the global media exposure of these trials, having such a broad approach to fair trial as seems to be adopted by the Trial Chamber, would mean that no defendant in an international criminal court could be said to be able to get a fair trial because they are nearly always portrayed as guilty in the press, in clear violation of the presumption of innocence...

In relation to the exact powers of the Chamber if there is a violation of fair trial requirements, I don't think there is a general rule. It depends on the nature of the violation. For example, in the case of the intermediaries, I believe there is indeed a case to be made that the Chamber has power to order the OTP to provide the names, given its general powers in insuring disclosure of relevant materials for the adequate preparation of the defense case. For others conducts not covered by explicit powers of the Chambers, I think that the only power would indeed be a stay of proceedings until the conduct stops. Disciplinary measures could only be taken by the Chamber in the specific case of the offences against the administration of justice listed in Article 70 of the Statute. In other cases, another body, such as the Presidency or the ASP, would be competent to deal with orders and sanctions. As for statements, given my strict approach to fair trial, I think they would rarely constitute a violation of that right in the first place, but if they did, a stay of proceedings would equally be the only available tool for the Chamber.

Bashir and Genocide in Sudan: Second time lucky for the OTP

Yesterday, Pre-Trial Chamber I issued a second decision on the prosecution's application for an arrest warrant against Omar Al Bashir for charges of genocide. This decision follows the March 2009 decision by PTC I, which had initially rejected the genocide charges, and the February 2010 Appeals Chamber judgment overturning the decision, because the wrong standard of proof had been applied. In effect, the first PTC I decision had considered that genocidal intent had to be the only reasonable conclusion. The AC held that this was too stringent a standard at this stage of the proceedings, and that the OTP only needs to show that genocidal intent is one reasonable conclusion.

Given this state of affairs, it is not surprising that PTC I amended its original decision to include three charges of genocide, which are to be the subject of a separate warrant of arrest. As I had argued back in February, I think that this is the correct standard to be applied at this stage of the proceedings, so there is nothing much to add on the decision itself. I would nonetheless like to raise one point before I consider other issues: the binding effect of Appeal Chamber decisions. Indeed, the PTC considers that:

1. It must be established at the outset that the key findings of the Appeals Decision [sic] are binding on the Chamber in this case and determine the scope of the present decision.

Stare decisis makes sense as a rule of thumb, but I couldn't find it anywhere in the Statute or the RPE (it was a cursory reading, so please correct me if I missed it). Also, the PTC gives no source for its statement, when it is usual for it to refer to the relevant provisions of the Statute. So I wonder whether there is in fact a rule of binding precedent at the ICC and what would be the consequences of its absence if a PTC were to systematically decide not to follow a debatable AC interpretation of the Statute.

Beyond this, the decision touches upon some other broader considerations, which have been raised elsewhere. 

For one I agree with William Schabas, that the Prosecutor will still need to prove genocide during trial (if it ever takes place) and the case-law of the ICTY shows how hard that can turn out to be. More generally, this over-reliance on genocide as a political tool is problematic, and in my view also counter-productive. Regular readers of this blog will already know my criticism of the haphazard use of the "genocide label" and the fact that I actually call (with little chance of success) for the removal of genocide as an international crime.

I also agree with Dapo Akande, that the Court is systematically not dealing with the issue of Head of State immunity, given the fact that Sudan is not a State party. His way to deal with that is to apply the reading of the Genocide Convention done by the ICJ in the Genocide Case, according to which a party to the Convention would have an obligation which would call for State Parties of the ICC to cooperate with the ICC in Bashir's arrest, as an international court dealing with Genocide the jurisdiction of which they have accepted, as provided by Article VI of the Convention, and this would apply irrespective of immunities which are explicitly removed by article IV of the Convention. 

I'm personally a little weary of all those "new" elements being read into the genocide convention over the years (like the claim that it gives rise to State responsibility for genocide...). More specifically, I would say that given that the Convention does not enact universal jurisdiction, the obligation to cooperate with an international tribunal can only rest on a State which actually has a duty to prosecute under the Convention, i.e, the territorial State. In any case, I think this reasoning cannot be applied to non-State parties to the ICC, given that they won't have accepted the jurisdiction of the Court. 

The question of immunity is just one of many that arise from the application of the Security Council referral to a non-State party. I remain convinced that the whole mechanism, which basically gives power to the Security Council to make a treaty binding on a State which is not a party to it, is contrary to international law... but I fear that in this case, just as when I argue for the end of genocide as an international crime, I am fighting a already lost war...

The Lubanga Trial is stayed, the slapstick comedy continues... but isn't the joke wearing a little thin?

Yesterday, Trial Chamber I of the International Criminal Court ordered another stay of proceedings in the Lubanga case because the Prosecutor is consistently refusing to apply orders made by the Court to disclose to the Defense the identity of an victims intermediary, following claims of misconduct. The Chamber had found that there was no security risk for the intermediary in the event of a partial disclosure to selected persons, confirmed by the Victims and Witnesses Unit. Despite this, the Prosecutor argued that:

The Prosecution is sensitive to its obligation to comply with the Chamber's instructions. However, it also has an independent statutory obligation to protect persons put at risk on account of the Prosecution's actions. It should not comply, or be asked to comply, with an Order that may require it to violate its separate statutory obligation by subjecting the person to foreseeable risk. The Prosecutor accordingly has made a determination that the Prosecution would rather face adverse consequences in its litigation than expose a person to risk on account of prior interaction with this Office. This is not a challenge to the authority of the Chamber, it is instead a reflection of the Prosecution's own legal duty under the Statute.

 To which the Chamber answered:

27. No criminal court can operate on the basis that whenever it makes an order in a particular area, it is for the Prosecutor to elect whether or not to implement it, depending on his interpretation of his obligations. The judges, not the Prosecutor, decide on protective measures during the trial, once the Chamber is seized of the relevant issue, as regards victims, witnesses and others affected by the work of the Court, and the prosecution cannot choose to ignore its rulings. It is for the Chamber to determine whether protective measures are necessary (following consultation with the VWU under Article 68(4) of the Statute); their nature; and whether they are consistent with the accused's right to a fair trial. These are issues for the Court, and the Court alone, to determine, having heard submissions and having considered all the information the judges consider necessary and relevant. The Prosecutor now claims a separate authority which can defeat the orders of the Court, and which thereby involves a profound, unacceptable and unjustified intrusion into the role of the judiciary.

28. The Prosecutor has chosen to prosecute this accused. In the Chamber's judgment, he cannot be allowed to continue with this prosecution if he seeks to reserve to himself the right to avoid the Court's orders whenever he decides that they are inconsistent with his interpretation of his other obligations. In order for the Chamber to ensure that the accused receives a fair trial, it is necessary that its orders, decisions and rulings are respected, unless and until they are overturned on appeal, or suspended by order of the Court.

 As a consequence:

31. Therefore, the Prosecutor has elected to act unilaterally in the present circumstances, and he declines to be "checked" by the Chamber. In these overall circumstances, it is necessary to stay these proceedings as an abuse of the process of the Court because of the material non-compliance with the Chamber's orders of 7 July 2010, and more generally, because of the Prosecutor's clearly evinced intention not to implement the Chamber's orders that are made in an Article 68 context, if he considers they conflict with his interpretation of the prosecution's other obligations. Whilst these circumstances endure, the fair trial of the accused is no longer possible, and justice cannot be done, not least because the judges will have lost control of a significant aspect of the trial proceedings as provided under the Rome Statute framework.

This is not the first time that the proceedings are slowed down due to prosecutorial delay. Some years ago, he had failed to disclose evidence obtained through the UN, which had led to a stay of proceedings, and even a decision on the release of Lubanga (which was of course overturned on appeal). The Prosecutor had grudgingly complied with the order at the time, but this time clearly claims that he would be under a Statutory obligation not to comply.
The Chamber's irritation with the Prosecutor is apparently reaching new levels, and it is interesting that it evokes the possibility of applying Article 71 of the Statute, which provides that

"the Court may sanction persons present before it who commit misconduct, including disruption of its proceedings or deliberate refusal to comply with its directions, by administrative measures other than imprisonment, such as temporary or permanent removal from the courtroom, a fine or other similar measures provided for in the Rules of Procedure and Evidence."

The possible sanction, according to the RPE (rule 171), are up to 30 days of removal from the proceedings and even, if the person is an official of the Court, up to 30 days of interdiction of exercising their function before the Court. In the unlikely event that the Chamber did apply this to Mr. Ocampo, he could swap stories with Garzon on the scandalous limitations to judicial independence for those untiring defenders of universal rights... But it would be unfair to put all the blame on the Prosecutor for the delays in the Lubanga Trial. The judges, with the Requalification of Charges fiasco, also have contributed to turning this first ICC Trial in a textbook case of poor judicial management.

Indeed, beyond this case, is highlighted once again the difficult interaction between the Prosecutor and the Chambers, and the continuing struggle for "power" over the proceedings, which has not failed to come up at every step of the proceedings, whether at the pre-investigative phase, when the PTCs tried to force OTP  decisions in CAR and Sudan, in the investigative phase, with the issue of victim participation, in the case selection, with the prosecution wrestling full control over gravity from spineless chambers, and now in the trial phase. It's difficult to know if the problem is structural (multiplying institutions with more, and therefore conflicting powers), or personal, due to the particular approach adopted by the OTP. But if it does last, it can only end badly, for the defendants, for victims, for the long-term legitimacy of the Court, and ultimately for the credibility of international justice...

Palestine and the ICC (follow-up): asking the right question and giving the wrong answer

Following our (really long) online debate some months back (see here and here), Michael Kearney has published another opinion on the declaration of the PA under article 12(3) of the Rome Statute. It very clearly highlights the different approaches to Palestinian Statehood and argues (along with Alain Pellet, who issued his own opinion on this) that a functional approach should be adopted to allow the declaration of the PA under 12(3). The paper might be called "asking the right question", but I fear once again that it's not giving the right answers...
I won't redo all the debate again, but I have two nagging questions that remain unanswered for me in this reasoning.

1) One argument is that the PA has criminal jurisdiction over the crimes, so it can transfer the jurisdiction. But how is material jurisdiction over the crimes relevant for 12(3)? This provision follows 12(2)  which provides that:

In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:

(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;

(b) The State of which the person accused of the crime is a national.

 There is no mention of material jurisdiction here. It's territory and nationality. Criminal jurisdiction over the crime is actually not a criteria under article 12 which is not a question of transfer of jurisdiction, but acceptance of jurisdiction in relation to territory and nationality. If not this would have two strange consequences 1) let's imagine a State where a certain war crime was committed but where the prosecution of such a crime would not be possible under its national criminal code. It could still become a Party or make a 12(3) declaration. Making criminal jurisdiction an extra criteria under 12 would mean that the ICC could only prosecute crimes in States which have themselves provided for the prosecution of the crime. Hardly the will of the drafters... 2) at the other extreme, it would mean that any State having implemented universal jurisdiction could make a 12(3) declaration. Criminal jurisdiction is only relevant when it comes to complementarity and whoever claims that it is relevant for article 12 needs to show me through what magic the two criteria of 12(2) (territory and nationality) suddenly became three...

2) A simple question: would you agree that the phrasing of the provision which talks about a "State which is not a Party to this Statute", implies that an entity that can make a declaration under 12(3) is also an entity that can actually sign the Rome Statute? I personally don't see any other interpretation of 12(3), and in that case, it begs the further question: if you're supporting the PA's declaration, why not support its signature of the Statute? That would certainly send a strong message to the international community and force the ASP to come up with a clear answer as to what is a "State" for the meaning of the Rome Statute.

I look forward to some answers!