Oral arguments in Prlić et al. concluded this Tuesday before the International Criminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamber – some 12 years since I began representing Dr. Jadranko Prlić. The Appeal Judgement is expected by November. When all is said and done, it will have taken over 13 years from the time the accused turned themselves over to the ICTY to the conclusion of the appeal proceedings.
What a journey! Lawyers, assistants, investigators, and interns have come and gone. Babies born, brothers, sisters, mothers, and fathers departed. Heart attacks suffered, kidneys replaced, weight gained, hair lost. Engagements, affairs, marriages, and divorces. And wrinkles, lots of wrinkles. No one spared. Continue reading “And the waiting goes on …”
“It’s like déjà vu all over again.”1 Perhaps the most memorable and exquisite quote of American professional baseball player, manager, coach, and Hall of Famer, Yogi Berra.
On 23 February 2017, it was reported that “Bosnia” filed a formal request with the International Court of Justice (“ICJ”) to reconsider its 2007 decision in the Serbia Genocide case, in which it found that Serbia had neither been involved in nor committed genocide. The ICJ did however find, curiously, that Serbia “violated the obligation to prevent genocide, under the Convention on the Prevention and Punishment of the Crime of Genocide, in respect of the genocide that occurred in Srebrenica.”2 International Court of Justice (“ICJ”), Case Concerning Application of The Convention on the Prevention and Punishment of The Crime of Genocide, Bosnia and Herzegovina v. Serbia and Montenegro, Judgment, 26 February 2007, para. 471.
Bosnia and Herzegovina (“BiH”), the actual name of the country, did not file for reconsideration. What was submitted to the ICJ – which has yet to be made public3Last checked 7 March 2017, the ICJ public record does not show the application filed on the 23rd of February 2017. – was a unilateral request by one of the three members of the BiH Presidency, Bakir Izetbegović (the son of Alija Izetbegović), currently serving as the Bosniak member of the Presidency of BiH.
Perhaps the most memorable and exquisite quote of American professional baseball player, manager, coach, and Hall of Famer, Yogi Berra.
International Court of Justice (“ICJ”), Case Concerning Application of The Convention on the Prevention and Punishment of The Crime of Genocide, Bosnia and Herzegovina v. Serbia and Montenegro, Judgment, 26 February 2007, para. 471.
Last checked 7 March 2017, the ICJ public record does not show the application filed on the 23rd of February 2017.
Last night, 16 November 2016, Justice Richard Goldstone, former Justice of the Constitutional Court of South Africa and the first Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR), delivered the second lecture in the joint lecture series co-hosted by Temple Garden Chambers (TGC) and the British Embassy. His lecture, fittingly titled The International Criminal Court – Current Challenges, was a sobering reminder on just how political and politicized international courts are, starting with his own appointment as ICTY and ICTR Prosecutor (members of the UN Security Council could not agree on a prosecutor primarily over petty political and sometimes retaliatory reasons). Continue reading “Review of Justice Richard Goldstone’s 16 November Lecture on the ICC’s Current Challenges”
On 20 September 2016 a press release was issued by the United Nations Mechanism for International Criminal Tribunals (“MICT”), also referred to as “the Mechanism”, describing a presentation given by MICT President Judge Theodor Meron at The Hague Institute for Global Justice. The press release described President Meron’s view that the MICT presented itself as a new model for international justice. Under this model, courts could be more streamlined and cost-effective by having a roster of judges on call who would step into the breach only when needed, as opposed to being in situ, collecting a full-time salary with benefits. This model is likely the brave new world and is being advocated by some who are looking for alternatives or complements to the International Criminal Court (“ICC”). Continue reading “The MICT model: panacea or chimera?”
This is the third and final post dealing with the call for submissions by International Co-Investigating Judge Michael Bohlander of the ECCC who is currently investigating Cases 003 and 004. Querying whether there was a lacuna in defining who may form a “civilian population” for the purpose of crimes against humanity, Judge Bohlander asked the parties and the amici:
Whether, under customary international law applicable between 1975 and 1979 [the temporal jurisdiction of the ECCC], an attack by a state or organisation against members of its own armed forces may amount to an attack directed at a civilian population?
As I noted in the first post, Judge Bohlander hinted that previous discussion on interpreting who constitutes a “civilian population” may have overlooked policy aspects such as whether there is a distinction between soldiers and civilians, and that such distinction “might only make sense if speaking of soldiers and civilians of an enemy population.” He then opined or concluded – at least so it appears from his words – that “it would seem beyond dispute that a regime which in peace times tried to cleanse its own armed forces of, for example, all soldiers holding a particular ethnicity or faith, would be engaging in crimes against humanity, because the victims’ combatant quality merely because they are soldiers would be entirely irrelevant in this context…” and that “there is no reason to think otherwise if such a campaign happened in the course of or otherwise connected to an armed conflict.”(para. 5)
The first post dealt with the contextual background relevant to Judge Bohlander’s question and provided a synopsis of the overarching arguments put forward by the International Co-Prosecutor (“ICP”) and the amici who responded to the call for submissions. Positions of the majority were relatively the same: a state or organization’s own forces can constitute a civilian population for the purposes of crimes against humanity. The second post covers the amici’s and ICP’s arguments in detail though a series of questions inherent in their arguments.
In the previous post I introduced the question raised by Judge Bohlander, the International Co-Investigating Judge for the ECCC, in his call for submissions: “whether, under customary international law applicable between 1975 and 1979 [the temporal jurisdiction of the ECCC], an attack by a state or organisation against members of its own armed forces may amount to an attack directed at a civilian population” for the purposes of crimes against humanity. After setting out the context and relevance for posing this question, I provided a brief synopsis of the submissions.
In this post, I will deal the overarching arguments put forward by the amici and International Co-Prosecutor (“ICP”) in submitting that under customary international law between 1975 and 1979, a state or organization’s own armed forces can constitute a civilian population for the purposes of crimes against humanity. I will do so by answering the questions that emerge from their arguments, which I listed in the previous post.
In customary international law, is the term “civilian population” given a broad interpretation to include members of a state’s own armed forces? And would excluding soldiers from the definition of “civilian population” lead to an “absurd result”?
On 22 August 2016, Ahmad Al Faqi Al Mahdi entered a guilty plea before the Trial Chamber for destruction of cultural monuments in the UNESCO world heritage site in Timbuktu, Mali.1Prosecutor v. Al Mahdi, ICC-01/12-01/15-T, Video Recording of the Admission of Guilt, 22 August 2016, available at https://www.icc-cpi.int/mali/al-mahdi. Despite having admitted to the crimes charged, the case proceeded to a two-day trial. The judgement and sentence are expected by 27 September 2016.2Prosecutor v. Al Mahdi, ICC-01/12-01/15-T-6-ENG, Transcript of the Trial Hearing, 24 August 2016, available at https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/12-01/15-T-6-ENG.
Interesting as it may be to debate the merits of going after the likes of Al Mahdi and the significance of this case (see e.g., Mark Kersten in Justice in Conflict (2 posts) or Owen Bowcott’s article in The Guardian), I am interested in the trial. Or is it a trial? After all, Al Mahdi pled guilty, acknowledged the factual matrix in the charging document as accurately reflecting his conduct, and voluntarily, knowingly, and intelligently (understandingly) waived guaranteed fair trial rights, in particular the rights to be presumed innocent, against self-incrimination, and to have the prosecution prove each charge against him beyond a reasonable doubt.
So what is there to try? Why put Al Mahdi through the crucible of having to retell that which presumably he has already told the Prosecutor or force him to effectively prove his guilt (having entered a guilty plea, there is a presumption that Al Mahdi is guilty) for the crimes for which he has already accepted responsibility and for which he is willing to bear the consequences? Continue reading “Ahmed al Faqi al Mahdi’s trial or slow change of plea hearing at the ICC?”
One has a moral obligation to take responsibility for one’s actions, and that includes one’s words and silence, yes, one’s silence …
Roberto Bolaño, By Night in Chile
A couple of weeks ago I posted a commentary that appeared in the Cambodia Daily concerning Henri Locard’s remarks while being examined by International Co-Lawyer for Accused Khieu Samphan, Ms. Anta Guisse, and his out-of-court remarks about the defence in general, which also appeared in the Cambodia Daily.
Locard’s out-of-court remarks prompted the Nuon Chea Defence to file a submission requesting a. that the press article that reported on Locard’s remarks be placed on the case file, and b. for the Trial Chamber to disregard Locard’s testimony because, having prejudged Nuon Chea’s guilt, Locard’s testimony was “not impartial or neutral and therefore fails to meet the criteria required to be considered expert evidence.” The Co-Prosecutors responded.1Case of NUON Chea, 002/19-09-2007-ECCC/TC, Co-Prosecutors’ Response to Nuon Chea’s Rule 87(4) Request to Admit into Evidence a Document an Article Concerning Henri Locard (2-TCE-90), 16 August 2016. Hence this post.
The Co-Prosecutors have no objections to the press article being included in the case file. What other position could they take? Hardly a bold manifestation of fairness.
The Co-Prosecutors did however object to the Nuon Chea Defence’s characterization of Locard and his testimony. Despite Locard’s in-court and out-of-court remarks, the Co-Prosecutors find him to be an erudite, objective and credible expert witness. Predictable. Although, what else could they be expected to say? It takes a particularly honest and moral sense of a prosecutor’s higher duty to justice to step out of the adversarial boots and cease vouching for a demonstrably defective witness. Continue reading “ECCC Prosecutorial Awakening is No Profile in Courage”
The Association of Defence Counsel Practising Before the International Tribunal for the Former Yugoslavia, commonly referred to as the ADC-ICTY, is the association of defence counsel formally recognized by the ICTY. As part of the completion strategy of both the ICTY and the International Criminal Tribunal for Rwanda (ICTR), the International Residual Mechanism for Criminal Tribunals (MICT) was established for both these courts. Trials, appeals, and post-conviction relief have been under the MICT since 1 July 2012 for the ICTR and 1 July 2013 for the ICTY, as ongoing matters are winding down.
The ADC-ICTY remains the only professional association recognized as the official and exclusive association of any of the past and present international and internationalized courts or tribunals. In October 2002, Rule 44 of the ICTY Rules of Procedure and Evidence (RPE) was amended to make membership in an association of defence counsel compulsory,1ICTY Press Release ‘Judges’ Plenary Session Adopt Reforms Concerning Defense Counsel Teams’ (19 July 2002) http://www.icty.org/sid/8083. firmly establishing the ADC-ICTY as the sole professional association dedicated to the interests of all defence counsel – and by extension their staff – practicing at the ICTY.
The original draft of the MICT RPE did not include this requirement, but after the ADC-ICTY requested an amendment, the final version of the Rules included the requirement of compulsory membership of an association of defence counsel in Rule 42. With the MICT coming into existence, the ADC-ICTY was selected to continue in its capacity as the association for counsel practicing before the MICT. The ADC-ICTY was initially provisionally recognized in December 2012 and has been functioning as the de facto Association for the MICT. This recognition was confirmed on 24 August 2015.2MICT-12-01/25-08-2015/(5-3), Decision Recognizing the ADC-ICTY as an Association of Defence Counsel Practicing at the Mechanism, 24 August 2015. Other budding associations at international or internationalized courts and tribunals would do well to emulate the lessons learned by the ADC-ICTY over the past 14 years.