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 this final post, I set out the rationale behind the civilian population requirement and argue: Continue reading “Crimes Against Humanity – Part III: Is an attack by a state or organization against members of its own armed forces an attack directed against a civilian population amounting to a crime against humanity?”
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”?
Answer: no and no. Continue reading “Crimes Against Humanity — Part II: Is an attack by a state or organization against members of its own armed forces an attack directed against a civilian population amounting to a crime against humanity?”
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?”
|1.||↑||Prosecutor 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.|
|2.||↑||Prosecutor 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.|
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”
|1.||↑||Case 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.|
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.
Now my point for indulging in this post. Continue reading “The ADC’s Continuing Relevance: MICT’s Rules Committee Practice Direction”
|1.||↑||ICTY Press Release ‘Judges’ Plenary Session Adopt Reforms Concerning Defense Counsel Teams’ (19 July 2002) http://www.icty.org/sid/8083.|
|2.||↑||MICT-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.|
In my previous post in this series I discussed some general points on amnesties and pardons, and examined the validity of domestic amnesties for jus cogens crimes with reference to some international examples of this issue in practice.
In this post I will examine the principle of ne bis in idem, or, as it is known in common law systems, double jeopardy.1“The Right to be Protected from Double Jeopardy. This right is designed to prevent the state from repeatedly subjecting a person to prosecution for offenses arising out of the same event until the desired results are achieved. It derives from a sense of fairness, and can be analogized to the civil law concept of res judicata. The non-common law countries refer to it as non bis in idem.” M. Cherif Bassiouni, Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections and Equivalent Protections in National Constitutions, 3 Duke J. Comp. & Int’l L. 235, 288 (1993). This principle prevents prosecution by a subsequent court of an individual for the same offense (and sometimes the same conduct, facts or cause of action) for which that individual was already finally convicted or acquitted. In the United States (“US”), it is enshrined in the Fifth Amendment to the US Constitution, which states: “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”
To start with, I will set out some general characteristics, underlying rationale, and exceptions to this principle. I will then discuss the question of whether the ne bis in idem principle has transnational application. I will conclude with a checklist to consider when determining the applicability of the ne bis in idem principle to bar prosecution. Continue reading “Amnesty Part III: Ne Bis in Idem in International Criminal Law”
|1.||↑||“The Right to be Protected from Double Jeopardy. This right is designed to prevent the state from repeatedly subjecting a person to prosecution for offenses arising out of the same event until the desired results are achieved. It derives from a sense of fairness, and can be analogized to the civil law concept of res judicata. The non-common law countries refer to it as non bis in idem.” M. Cherif Bassiouni, Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections and Equivalent Protections in National Constitutions, 3 Duke J. Comp. & Int’l L. 235, 288 (1993).|
Since Nuremberg, every international or internationalized criminal tribunal (ICTY, ICTR, SCSL, ECCC, ICC, STL) has adopted hybrid proceedings: mixing, matching, and manipulating procedural modalities from common law and civil law systems. I use the plural for “systems” because there is no such thing as the common law system or the civil law system. There are small and large differences among the legal traditions. In common law systems one sees significant differences between the US model, virtually exclusive to the US, and the UK model, seen the world over in the Commonwealth and former UK colonies. The civil law systems can roughly be divided into two major models, the French model (with the investigative judge) and the German model, where the prosecutor charges and investigates, though even between each of these models there can be significant differences. And of course there are also what I would call the hybrid civil law systems, as in Italy, Bosnia and Herzegovina, Macedonia, and elsewhere, where adversarial modalities have been added to the proceedings, i.e., allowing the accused to gather evidence, permitting the parties to initiate the questioning of witnesses and to cross-examine opposing witnesses with leading questions, and even placing the burden of proof on the prosecution to a standard of proof beyond a reasonable doubt. Continue reading “Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof”
The Lawyer’s Independence: A Universal Principle of Disparate Meanings
Part II – A Critical Analysis of International Legal Ethics
This post follows up on my discussion of the ethical principle of a lawyer’s independence. Though virtually all national and international codes of conduct codify the lawyer’s independence, a lawyer’s understanding of this principle and the ethical duties deriving therefrom differs depending on his or her legal tradition.
In my first post, I attempted to clarify what it means to be “independent” in the national context by discussing the lawyer’s role in the civil and common law systems and how the principle of independence is interpreted in various domestic legal systems. This post will focus on the ethical principle of a lawyer’s independence in the context of international and internationalized criminal tribunals based on the various applicable and aspirational codes of conduct.
Lawyers (hereinafter “Counsel” as generally referred to at international tribunals and courts) from different legal traditions have different experiences and are beholden to their own canons and traditions of professional ethics. What may be permissible in one national jurisdiction may not be permissible in another, and depending on the circumstance, may or may not be permissible at one of the ad hoc international or internationalized criminal tribunals, or the International Criminal Court (“ICC”). And herein lies the conundrum: with which code of conduct and with which interpretation of any of the ethical principles must Counsel abide when practicing at any of the international or internationalized tribunals? Is it as simple as saying that Counsel must abide by the code of conduct of the tribunal or court before which he or she is appearing? What if there is a conflict or a notable difference between Counsel’s national code and the court’s code? This fundamental ethical issue, which Counsel will invariably encounter in representing accused or victims before these courts and tribunals, will be the topic of another post. I merely raise this point now to highlight just how not so simple or straightforward it really is in practice to straddle codes of conduct with diverging meanings of ethical principles that textually and with an unadorned reading seem identical. Continue reading “The Lawyer’s Independence — Part II”