Policy papers can be instructive but do not always dictate the course of action that is ultimately taken. Much has to do with the vision, drive, and inclination of the Prosecutor. This was rather apparent with the first ICC Prosecutor, Luis Moreno-Ocampo, who was of the opinion that the goal of the court is to send a message to prevent future crimes, the so called “shadow of the court” goal. Continue reading “ICC-OTP sets out its vision: a look at the horizon”
On 5 October 2016, I was invited to participate in a seminar organized by the United Nations Office of the High Commissioner for Human Rights – Cambodia (OHCHR) in cooperation with the Bar Association of the Kingdom of Cambodia (BAKC), titled Questioning Techniques from the Defense’s Perspective and the Use of National and International Law in Legal Arguments. Held in Phnom Penh, this training was part of the Legal Dialogue Series 2016: a series of trainings organized by the OHCHR as part of its ongoing efforts to support and strengthen the development of Cambodian legal professionals, including by facilitating the dissemination of skills and knowledge from international and Cambodian lawyers at the Extraordinary Chambers in the Courts of Cambodia (ECCC) to Cambodian lawyers practicing in local courts. Continue reading “Learning from the ECCC experience”
Defense lawyers are expected to be flattered to read a purportedly positive piece from an outsider – a non-defense lawyer or someone who has never defended – on what it is they do and why.
Normally such praise-pieces never fail to comment on the obvious, such as the mother of all questions: How can we represent such criminals?, or that the facts are bad but everyone deserves a fair trial, or how clever we need to be to design creative strategies and make acceptable (i.e., passing the laugh test) arguments, and so on. Routinely, the tone is one of feigned empathy and understanding, as if what they really want to say is: you poor thing, it is a dirty job, your client is guilty, you have no choice but to put up a smoke screen of a defense and try to delay and obstruct the proceedings, but someone has to do it so, so better you than me. How thoughtful of them.
And then occasionally there is the concerted attempt by someone who has legal training but has never been in the trenches, never defended (or prosecuted) a domestic case, let alone a case involving serious international crimes, to drill down and really try to explain in a broader context what it is that defense lawyers do and why, even crediting them with making legacy contributions towards the court’s historical narrative. Wow! Alice Murgier does just that in her article “The Legacy of the Extraordinary Chambers in the Courts of Cambodia: Why Defense Work is Essential in Shaping the Historical Narrative of the Court,” posted on the Cambodia Tribunal Monitor’s website on 16 September 2016.
The rubble left from an ancient mausoleum destroyed by Islamist militants, is seen in Timbuktu, Mali, July 25, 2013.
On 27 September 2016 Ahmad Al Faqi Al Mahdi was sentenced to nine years for the war crime of attacking protected objects under Article 8(2)(e)(iv) of the Statute, specifically, “[i]ntentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives.”((Prosecutor v. Al Mahdi, ICC-01/12-01/15, Judgment and Sentence, 27 September 2016, para. 11.))
In a previous post I discussed the plea bargaining process and trial or, as I call it, slow change of plea hearing. I noted that in all likelihood Trial Chamber VIII would accept the plea agreement if satisfied that the facts proved the crimes admitted and if it found that the agreed period of time was commensurate with the gravity of the crimes. Many have written on the Al Mahdi case. Some questioned the imperative for prosecuting such low-level crimes, and for not including other crimes that Al Mahdi allegedly committed, such as murder. Others looked at the case as a major watershed for the ICC for prosecuting the destruction of religious and cultural property. All who have commented on this case have made a valuable contribution in raising awareness on the importance of combatting against culturecide. Continue reading “AL MAHDI CULTURECIDE JUDGMENT: A watershed moment for plea agreements”
We all know that trials, like games, have their unique set of rules – who does what, when can this or that be done, what is permissible or impermissible, etc. We generally refer to them as the rules of procedure and evidence. In another context we might call them the rules of the road. In sports we just call them the rules. Try playing a game without them. Worse yet, try playing a game where the referee is also a player and when it comes to his or her behavior, the rules apply or are redefined based on whim and fancy. Just how fair would such a game be?
In the trial game, the parties have the right to ask questions, but so do judges. Depending on the procedure, the judges may have the right to take the lead, leaving the prosecution and the defence to mop up. When the parties have the right to take the lead, judges are expected to ask discrete questions, mostly for clarification, and not for the purpose of pursuing a preordained result (as prosecutors of all stripes and shades do). Continue reading “Judges’ questioning: are all questions fair game?”
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”?
A few months ago, 19 April 2016 to be exact, Michael Bohlander, the International Co-Investigating Judge for the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) issued a call for submissions by the Office of the Co-Prosecutors (“OCP”), the Defence in Cases 003 and 004, and qualified amici curiae. Querying whether there was a lacuna in defining who may form a “civilian population” for the purpose of crimes against humanity, Judge Bohlander asked:
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.((Case of MEAS Muth, 003/07-09-2009-ECCC/OCIJ, Call for Submissions by the Parties in Cases 003 and 004 and Call for Amicus Curiae Briefs, 19 April 2016, D191 (“Call for Submissions”), para. 3.))
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.((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.)) 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.((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.))
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?”
