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Saturday, April 24, 2010

Future of Appeal of Dead Defendant at the ICTY (and a footnote on Garzon)

Last friday, Rasim Delic, a former Bosnia Army General, died while awaiting the result of his appeal against his three year conviction for war crimes. It has to be a relief the the tribunal that he was provisionally released and that he has not joined the list of defendants that died in the UN detention center.

His death raises interesting questions because apparently, he is the first defendant to die during the appellate phase. I must say I'm not too sure what to think about what should happen to the proceedings and wanted to throw some random thoughts out there for your consideration.

One argument is to say, as when other defendants died, that the proceedings should cease. That would be an open and shut case. But somehow, I feel, without being exactly able to argue my point yet, that the situation is different on appeal. Before the Trial Judgment, if the proceedings are stopped, the presumption of innocence means that the person dies innocent. There has been no consequence of the ongoing proceedings because, legally, it is as if they had never started. On appeal, the presumption of innocence doesn't work anymore (or does it?) and he would die guilty if the proceedings were to stop before the issuance of the appeals judgment. That somehow does not feel right.
One has to keep in mind the hybrid nature of the appellate process in international criminal courts. In most national systems, an appeal is basically a new trial and the appellate procedure suspends the sentence of the first instance tribunal. Afterwards there is usually a third degree of jurisdiction which only determines whether the lower courts have made a mistake of law, and the procedure is not suspensive. At the ICTY, the Appeals Chamber fulfills both functions. It is a judge of law, mostly, but also of fact, without there being a new trial per se (which leads to the weird procedure whereby the Appeals Chamber can overturn a finding of innocence or increase the sentence, without any chance of appeal, which  I personally find disturbing, as I've already argued, but that's a different issue). Interestingly, the Appellate procedure does not suspend the sentence.

With all this in mind, there are, in my opinion two approaches.
1) I would prefer that the appeal judgment be rendered. What is in the dock at this stage is the Trial Judgment, not the defendant anymore. I think it is in the interests of the good administration of justice that we know whether the trial chamber got it right. Especially as, from what I've seen on the website, all the appellate hearings seem to have been concluded, so the rights of everybody to be heard have been respected.
2) If the proceedings are called to an end, there remains the question of what to do with the Trial Judgment. In order to respect the presumption of innocence, I think the trial judgment should be quashed for reasons of equity.

Whatever the judges decide, the worst would be for them, faced with this novel situation in international criminal proceedings and because it is likely to happen again, to issue an unsubstantiated order that would give no indication on their reasoning.

Footnote on Garzon:
Thank you for your reactions to my thoughts on the Garzon proceedings. I wanted to add a small point, although it doesn't fundamentally change my general views on the whole situation and on the way people have reacted to it.
It appears, and I've had difficulty in finding precise information, not being a Spanish speaker, that the investigation was stopped in 2008 following a court decision. If that is the case, I do think that Garzon has a strong defense in the current proceedings. Indeed, if Garzon initiated an investigation and then went before a judge to confirm it, failed to obtain that confirmation and then stopped the proceedings, I don't see where the abuse of power would be constituted. The normal procedure seems to have been followed. It happens daily in every system where a prosecutor or investigative judge builds up a case and then is told that he got it wrong by a court. If that is an abuse of power, then every national prosecutor would be facing such charges at one point in their career. That's just how the system works.
Of course, at this stage, this is just speculation, as I can't seem to get hold of the alleged 2008 decision or its content. If anybody has it, I'd be happy to read it.

Wednesday, April 21, 2010

Some thoughts on the Garzon lovefest: next step the ICC?

In recent weeks, the media and the human rights community have concerned themselves with the case against well-known Spanish judge Baltasar Garzon, famous among other things for initiating proceedings against former Chilean President Augusto Pinochet. I've mostly read expressions of support for the Judge, but they generally confuse the different issues under consideration.

Apparently, what Garzon is being prosecuted for is for having initiated an investigation into disappearances that occurred during the Spanish Civil War and the Franco era, therefore exceeding his jurisdiction because of a 1977 Spanish Amnesty Law covering these crimes. This situation raises several questions.

The first one, that all have put forward, is the validity of the amnesty in relation to international law. More specifically, are national amnesties for international crimes, more particularly crimes against humanity, contrary to international law? A lot has been written on this issue and this is not the place to answer the question. I have written an article expanding on the different aspects to be considered. In a nutshell, I don't think this is a relevant question in the context of the Spanish national system. IF, and I insist, IF, amnesties for crimes against humanity are deemed contrary to international law, the main consequence is that thet won't be recognised by another State's courts, or by international tribunals. It does not mean that they are not applicable in the legal system of the country that adopted them, in our case, Spain (and as an aside comment, anybody who has actually read the decisions on amnesties issued by the SCSL should be weary in referring to them, given their obscure drafting and debatable legal reasoning…).
More importantly, the international illegality is irrelevant in the national setting in relation to the specific procedure that undoubtedly exists to challenge the legality of a norm. Even if the amnesty is illegal under Spanish law, whose role is it to contest this amnesty? In most of the reports I've read, commentators seem to forget that Garzon is not an investigative judge of the world community, he is an investigative judge of Spain, and is an agent of its judicial system. Some have argued that the current proceedings run counter to judicial independence. But judicial independence does not mean unaccountability. A Spanish investigative judge cannot act beyond the scope of the jurisdiction of Spanish law and go beyond the powers vested into him by Spanish Law. It is not his role to contest this law. If Human Rights organisations, or victims' groups want to file a complaint in national courts opposing the legality of the 1977 Amnesty, fair enough, it is their role, not that of an investigative judge.

Another point that is highlighted in most commentaries, is the fact that "The charges were brought by two far-right groups who fear an open investigation of the Franco-era record" (NY Times Editorial) and that "allowing politically motivated groups to use the courts to intimidate magistrates and pre-empt investigations into past injustices appears to be a step backwards for human rights". Of course I don't have any sympathy for the far-right Francoist groups who brought the allegations before the court, but I find this remark a little disingenuous, or at the very least, naive. Courts are open to everybody, irrespective of whether one likes the person or group. When Amnesty International or Human Rights Watch file Amicus Curiae before national or international courts in favor of a certain position, they also are "politically motivated" (this would require some discussion on the useful but illusory narrative that human rights are "apolitical"...). They are also trying to "intimidate" dictators into not committing war crimes. Everybody has an agenda, and I refuse to deny legal standing based on my personal ethical evaluation of the ideological content of an organisation.

Finally, many have pointed out that Spain must face its past in order to move forward. Probably. But once again, how is that relevant to evaluating whether Judge Garzon has gone beyond his mandate in the existing legal setting? If that is his fight, he should quit and join activist groups that rightly call for more accountability for the Franco-era crimes. If he takes the risk of working on the fringes of legality, as an agent of the judicial system, he must bear the consequences of his actions.

In summary:
1) Yes, amnesties for crimes against humanity might be contrary to international law, 2) yes, one can argue that Spain's amnesty law prevents the country from facing its past, but 3) Garzon is not a human rights body (such as the Inter-american court of human rights) whose function is to evaluate these issues, 4) Garzon is not a political leader or human rights activist whose function is to promote change, 5) he is an investigative judge of the system, whose function is to investigate within the existing legal framework, and thefore 6) if he goes beyond his function, whatever the valid moral reasons to do so, he should bear the consequences and 7) if he's not happy with the existing legal framework, he should quit.

However much Garzon and his supporters have wanted to portray him as a world crusader against impunity, functionally, he is "only" a Spanish investigative judge. If he wants to campaign against amnesties in the international legal order (a perfectly legitimate goal), he should leave and continue his campaign as an international activist. Personally, and I know that might seem a little far fetched, I see some parallels between Garzon and Ocampo in portraying themselves as lone crusaders against the forces of evil. It must be an Hispanic cultural trait that could be called the Don Quichotte Complex, but that could be the topic of another post.With all this in mind, I'll take a side bet on the Garzon affair paving the way for him replacing Moreno Ocampo at the ICC. He would fit the bill perfectly in terms of experience and he would not be hindered by petty considerations of respecting national rules on sovereignty, amnesties or immunities.... Any thoughts on that?

Thursday, April 8, 2010

ICC and Kenya: questions of prosecutorial communication

I've posted an extensive legal comment on the Invisible Blog on last week's decision at the ICC to allow the commencement of a formal investigation in Kenya. But important in these matters is also the question of communication and how the Court is perceived by various communities who have an interest in the functioning of the Court. As I mentioned in a previous post, I don't believe that the Court focusing on Africa is a sign of its neo-colonialist nature. But the fact remains that perceptions, whether right or wrong, are fundamental, especially for an institution that relies so heavily on governmental and non-governmental cooperation for its daily operation.
In this context, it is interesting to look at the press conference held by the Prosecutor the day after the decision.  Mr. Ocampo has once again shown his capacity to express himself in a clear and synthetic way, with strong Orwellian statements aimed at striking our hearts and minds. Here's one example:
The judges decided. There will be justice in Kenya. To contribute to the prevention of crimes during the next election we must proceed promptly. We will. There is a list of 20 suspects, but it is not binding. We envision at least two cases against one to three persons in each case. We will focus on those most responsible according to the evidence that will be impartially collected. We aim to finalize the bulk of the investigation during 2010. We will present our case before the Judges. They will decide. This is a judicial process.
On the content, there is nothing "decided" yet, the judges just allowed the commencement of a formal investigation. There have been no indictments, no arrest warrants or confirmation of charges and I would be surprised if anything notable happened in the next 18 months before the next election.

But for the purposes of this post, I'd like to focus on the form. It just seems incomprehensible that the Prosecutor of an international Court express himself in such a telegraphic fashion. Mr. Ocampo also appears in a video produced by the Hauser center where he reproduces exactly the same way of conveying ideas. And the example I give earlier does not show that he actually repeats some of sentences throughout the statement, to increase their impact...
I don't know why he believes he should express himself like this. The statement seems to be perfectly tailored for an audience that seems to be perceived as incapable of comprehending sentences longer that 5 words (Human Rights activists and Africans?...). I'm a little reluctant to attribute such thoughts to Prosecutor Ocampo, but one can't help feeling patronized when being spoken to like a child. And if it's not based on what he perceives to be what people want to hear, I don't really see any other explanation for such absence of effort in drafting a statement. Ok. We get it. Justice good. Criminals bad.

More importantly, this is not just an issue of the Prosecutor. He is also the most visible figure of the ICC. He represents the Court when he travels abroad or announces new investigations and cases. Critics of the ICC in past years invariably focus on the Prosecutor and I believe that the capacity of the Court depends, and will depend in the future on how the Prosecutor conveys his ideas to the communities whose help the ICC as a whole requires. Too often, Mr. Ocampo seems to act as a spokesperson of the Court and of the general "interests of justice". That is not his function. He is a prosecutor whose role is to gather legal evidence of the commission of crimes and provide both incriminating and exonerating facts against a defendant. His statements, both in form and in content, go beyond this by portraying him as a avenger of wrongs, on a crusade against crime, which reflects badly on the ICC (see, among other examples, Ocampo's recent "Bashir is Hitler" comment). Indeed, the ICC is but one institution in the general international framework for the advancement of international peace and security, and Mr Ocampo is but one keg of this institution. A perception of arrogance (whether real or not is not the question) on the part of the most public figure of the ICC can only be a hindrance for its ultimate success.

Q&A on the ICC and Africa: is the criticism on the legitimacy of the Court legitimate? Part 2

Question 4: The increased dissatisfaction with the ICC from the African Union seems to be based largely on the al-Bashir indictment (please correct me if you think I’m wrong). Some ICC advocates might say that this is merely a sign of African despots guarding their future impunity, and thus, the AU criticism actually shows that the ICC is heading in the right direction – that is, going after ‘the big fish’. Do you agree with this? Also, should one differentiate between support from African leaders and support from the civil society in this regard, or do you think that disappointment with the ICC is widespread in Africa?
I think I’ve broadly answered this question within my previous answers. You are right in considering that the dissatisfaction with the ICC in Africa is largely due to the Bashir arrest warrant which has made other African leaders a little weary of ICC intervention in their affairs, without their consent. As for this meaning that the ICC is going in the right direction, I told you before how skeptical I am of the “big fish” approach, despite its apparent appeal. If you really want my opinion on Darfur, I have exposed part of it in an opinion on the Hague Justice Portal, where I comment on the recent Bashir decision. I actually have my doubts, both in international law and from a policy point of view, of the Prosecutor over-insistence on the genocide charge and his reading of the political situation in Darfur. But should the prosecutor have to “read” political situations? I put some general remarks on this at the end of question 5.
On the complexity of African support for the ICC, I mentioned previously the variety of actors involved who will all have different reasons to be dissatisfied or satisfied with the court, so I think you have a good intuition in asking this question.
Question 5: What could the ICC do to regain some of the legitimacy that it appears to have lost in Africa? (Someone has suggested that the court should expand its focus beyond Africa – might this be helpful?)
Again, I have already started to answer your question in my previous answers. Legitimacy is not this monolithic object that an institution possesses or doesn’t possess. The question makes no sense as a general question. The answer depends on who you are trying to be legitimate to. For a lot of Human Rights activists, the question of Africa is irrelevant. What constitutes the legitimacy of the court is whether it is prosecuting the crimes that these activists consider as important, be that child soldiers, or forced marriage. The same is true for victims of crimes. Generally, the Court will always be “legitimate” to some and “illegitimate” to others, depending on each person’s or group’s agenda.
Linked to “legitimacy” is the question of expectations. Depending on your expectations, your disappointment will be more or less strong. And I think this is the real question that runs through all your other questions. What are the expectations of the court, and are those expectations legitimate? In my opinion, in my cases they are actually not, and this is where perception problems arise. Indeed, fundamentally, this is a Criminal Court, not an actor in peace negotiations, not primarily a “reconciler” or a granter of reparations to victims. Of course, I’m not naïve, politics are everywhere. But it is totally different to acknowledge that the ICC is one actor in a complex international political scene, and another to want to “import” international politics within the workings of the court. For example, is it really the role of the court to prosecute both sides to a conflict? I’m not sure. More broadly, should the situations investigated be equally distributed across the globe? Again, I don’t think so. Defenders of the ICC have created in my opinion too many and too high expectations of what the court is and what is should and can do, and for me this, correcting these incorrect perceptions  is the first place to start before dealing with the actual question of legitimacy.
Of course, moving back to more pragmatic considerations, and I’m sorry if my previous remarks are too theoretical for the purposes of your article, if the ICC does move to other parts of the world, it will obviously help its case in relation to this criticism. And as I mentioned before, this could happen both in Columbia and in Gaza. But one musn’t forget one important thing: the prosecutor is dependent on the fact that States must have signed and ratified the Statute. And the fact remains that the African continent contains, after Europe, the biggest number of State parties, and there are indeed a lot of crimes being committed there that are within the jurisdiction of the court. Other situations in the world would require a Security Council referral, but this is beyond prosecutorial policy and the power of the ICC as an institution. It is not really fair that the ICC should receive the criticism that should be aimed in fact the at the Security Council.
Question 6: The question of crimes of aggression is up for debate later this year. According to the Daily Telegraph, there has been talk in Britain about whether an agreement upon this crime opens the possibility of an indictment of Tony Blair. I know it is probably unlikely that an agreement would have retroactive effects, but even leaving that aside, is it not unrealistic that we will ever see Western leaders appear before the ICC (perhaps this also goes for Western soldiers, given the OTP’s refusal to go after British soldiers in Iraq)? If so, does this make the ICC vulnerable to charges of a ‘Western bias’?
In relation to aggression, you are right to point out that even  if there is an agreement on the definition at the Review Conference in Kampala later this year, it will in any case not apply retroactively.
As for the likelihood of seeing western leaders and soldiers being prosecuted at the ICC, you are probably right. But again, I’m not convinced about the “western bias” argument. The Iraq situation is quite specific, and there is no doubt (in my opinion) that the invasion of the country by the US and UK is an aggression under international law, and that specific war crimes have been committed. But most situations where western soldiers are involved are less ambiguous humanitarian or UN operations. There are often isolated cases of war crimes, but rarely the widespread situations of crimes that we all expect the ICC to deal with. Calling the fact that the ICC will more likely prosecute a perpetrator of crimes against humanity in Africa rather than a western soldier who committed a rape a “western bias” is just misplaced political correctness. Moreover, soldiers of western states are more likely to be prosecuted nationally, thus triggering the principle of complementarity. But it is totally disingenuine to use legitimate outrage about Irak to generalize on “western bias”. The fact is that in most cases, the widespread and systematic crimes that affect world peace will not be committed by western leaders and western soldiers.
Again, there is the specific situation of Irak and you mention the Prosecutor refusing to prosecute british soldiers. But this decision does make sense in the context of the ICC. For one, for reasons of jurisdiction, the prosecutor could not look at aggression. Second of all, he could only look at nationals of State parties, given that Irak is not a State party. With this in mind, the prosecutor did acknowledge that there was evidence of some cases of war crimes from british soldiers (based also on evidence provided by the British MoD), but that there was no evidence of a widespread commission of them by british soldiers and therefore decided not to pursue the investigation. Beyond the general issues with Irak, would it really be understandable that so much money be spent to prosecute these crimes (however reprehensible they are) when other situations legitimately deserve more attention, particularly applying the big fish theory?