If States are permitted to take action against a Judge in violation of the applicable international legal framework, judicial independence—a cornerstone principle of the rule of law—and the integrity of our court as such are fundamentally at risk, as is the overall project of international criminal justice.
Judge Theodor Meron, MICT President
Kudos to Judge Theodor Meron for standing up for Judge Aydin Sefa Akay, and more importantly, for judicial independence. Let’s hope his admonitions do not amount to a lone cry in the wilderness of international justice.
The crux of the Prosecution’s argument on appeal is the temporal link between Šešelj’s statements [statements threatening with “rivers of blood” and using inflammatory and derogatory epithets] and the contemporaneous or subsequent commission of crimes in various locations. The Appeals Chamber considers that a reasonable trier of fact could find such a link to be tenuous in circumstances where there was a significant lapse of time between the statement and the offences, allowing for the reasonable possibility that Šešelj’s statement did not substantially contribute to the commission of the specific crimes and other factors may have influenced the conduct of the perpetrators.
On 11 April 2018, the Mechanism for International Criminal Tribunals (MICT) issued the much-anticipated judgement in Šešelj. The outright acquittal by the Trial Chamber on three counts of crimes against humanity (persecution, deportation, and the other inhumane act of forcible transfer) and six of war crimes (murder, torture and cruel treatment, wanton destruction, destruction or willful damage done to institutions dedicated to religion or education, plunder of public or private property), was greeted with disbelief and disdain – a shocker. How could this demagogue – whom many looked up to as a god-like figure (para. 147) and acted on his inflammatory refrains against non-Serbs – be acquitted?
[T]he Mechanism is making excellent progress with its judicial work in general, all the while continuing to learn from experience, and recalibrating internal practices as necessary to ensure optimal efficiency and economy.
Reflecting on last year’s events, I noted how the Mechanism for International Criminal Tribunals (MICT) – the post-conviction judicial institution which has taken over all residual matters of the now-defunct International Criminal Tribunal for Rwanda (ICTR) and International Criminal Tribunal for the former Yugoslavia (ICTY) – was working efficiently, though parsimoniously (providing no legal aid to convicted persons unless any claims for post-conviction relief prepared by pro bono defence counsel are found to be meritorious). In retrospect, I should have presented a more guarded and less sanguine picture. It seems I may have been too generous in my assessment. Mea culpa. Continue reading “The MICT’s opaque practice of varying witness protective measures: time to recalibrate”
In 1788, Robert Burns, Scotland’s prodigious poet who is universally loved for his simple yet penetrating versus, penned the words to Auld Lang Syne – a song usually heard the world over on New Year’s Eve. Hard to find a Scot who does not know the words to and meaning of Auld Lang Syne (or the lines to most of Bobby Burns’ poems for that matter). But in case you have ever wondered, it basically means “a long time ago,” “days gone by,” or “for old times’ sake.”
The poem/song is about looking back at old memories and friendships, reminding us to cling to these special moments and bonds as we are about to forge ahead into the New Year. But it is not so much about not letting go, as opposed to not forgetting – about cherishing past friendships and the past.
Caught in the moment of singing along (or trying like the devil to remember the lines we have mechanically mumbled through in previous years) as we celebrate the coming of the New Year and make our soon-to-be unkept resolutions, we tend to unconsciously ignore the biddings of Auld Lang Syne to reflect on the year passed. Imprudently, we habitually delude ourselves into thinking that looking in the rearview mirror is a superfluous indulgence that risks impeding our desire (and perhaps necessity) of letting go of the past for the sake of moving on.
With time waiting for no one, we have already started pressing into 2018. Unquestionably, 2018 promises to be an interesting year – if for no other reason than because of 2017. Hard to predict what is in store over the next 12 months, though much like examining a treasure map or a crossword puzzle, reflecting on some of the events over the past 12 months provide us with abundant clues. Not intending to present a summary of world affairs (such as The Economist, Time Magazine, and others do every December), I will merely refer to some of the events I have posted on, primarily limited to international criminal law (ICL) matters. And for anyone interested in what I have posted in 2017, here is a chronological list. You can also check the archives section of my blog. Continue reading “Reflections on 2017: past is prologue”
When national courts are seized of a case in which the immunity of a United Nations agent is in issue, they should immediately be notified of any finding by the Secretary-General concerning that immunity. That finding, and its documentary expression, creates a presumption which can only be set aside for the most compelling reasons and is thus to be given the greatest weight by national courts. The governmental authorities of a party to the General Convention are therefore under an obligation to convey such information to the national courts concerned, since a proper application of the Convention by them is dependent on such information. Failure to comply with this obligation, among others, could give rise to the institution of proceedings under Article VIII, Section 30, of the General Convention.1 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, 2, ICJ Reports 1999, p. 62 (“ICJ Advisory Opinion on Difference Relating to Immunity from Legal Process”), para. 61.
Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, 2, ICJ Reports 1999, p. 62 (“ICJ Advisory Opinion on Difference Relating to Immunity from Legal Process”), para. 61.
See Margaret Coker, How a Top International Judge Was Trampled by Turkey’s Purge, Wall Street Journal, 29 December 2016.
If a state can arrest a Judge and the Judge has to be replaced because of that action, then our Judges are subject to the restrictions that any state may choose to impose upon them by taking away their immunity in one form or another. That goes to the very heart of judicial independence. We don’t want judges having to answer to their states or be fearful of their states if they take a certain decision or they don’t. They have to be completely independent. That’s why they have diplomatic immunity.1 Prosecutor v. Ngirabatware, MICT-12-29-R, 17 January 2017, Transcript, p. 29.
It came as no surprise that Judge Theodor Meron, the Pre-Review Judge of the Mechanism for International Criminal Tribunals (MICT) Appeals Chamber, would find that Judge Aydin Sefa Akay enjoyed (and continues to enjoy) full diplomatic immunity as a sitting judge at the MICT at the time of his arrest for allegedly participating in or being sympathetic to the attempted overthrow of Turkish President Recep Tayyip Erdogan. Judge Akay was arrested after it was discovered that he had in his 2,000-volume library a book about the alleged coup mastermind, Fethullah Gulen, and that he had downloaded ByLock, a messaging app allegedly used by the coup plotters.2 See Margaret Coker, How a Top International Judge Was Trampled by Turkey’s Purge, Wall Street Journal, 29 December 2016.
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?”
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”?
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.