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?”
Tag: ICC
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?
Part III
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?”
Ahmed al Faqi al Mahdi’s trial or slow change of plea hearing at the ICC?
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?”
Amnesty Part IV: The Case Against Saif al-Islam Gaddafi Before the ICC
In the previous post I examined the principle of ne bis in idem / double jeopardy, setting out the general characteristics, underlying rationale, exceptions to the principle, and its transnational applications.
This series on Saif al-Islam Gaddafi and the ICC was prompted by the press conference organized by Gaddafi’s lawyers calling for the ICC to dismiss the crimes against humanity (murder and persecution) charges against Gaddafi for which he has been indicted. Continue reading “Amnesty Part IV: The Case Against Saif al-Islam Gaddafi Before the ICC”
Amnesty Part III: Ne Bis in Idem in International Criminal Law
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.((“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”
Amnesties and Pardons in International Criminal Law – Part II
Amnesty is defined as complete and lasting forgetfulness of wrongs and offences previously committed. Therefore, when an amnesty is given, since all deeds are consigned to perpetual oblivion and everlasting silence, no one can be accused or punished for acts before committed.((CHRISTIAN WOLFF, JUS GENTIUM METHODO SCIENTIFICA PERTRACTATUM Vol. 2, para. 989 (transl. by and Joseph H. Drake, Oxford 1995). ))
In my previous post I briefly recounted the background and recent developments in the case against Saif al-Islam Gaddafi at the ICC, and how these recent developments relate to the issues of amnesties, pardons, and ne bis in idem. I was prompted by recent news reports that Saif al-Islam Gaddafi was pardoned and released from prison after being convicted and sentenced to death, and his legal teams’ press conference and statements that the ICC should dismiss the case against Saif al-Islam Gaddafi because he was pardoned and because of double jeopardy. Continue reading “Amnesties and Pardons in International Criminal Law – Part II”
Saif al-Islam Gaddafi and the ICC: is the purported “amnesty” (or pardon) and “double jeopardy” a game-changer?
On 26 February 2011, the United Nations Security Council voted unanimously to refer the situation in Libya since 15 February 2011 to the ICC Prosecutor to hold accountable those responsible for attacks on civilians by forces under the control of those responsible. After conducting a preliminary examination, the ICC Prosecutor concluded on 3 March 2011 that there is a reasonable basis to believe that crimes under the ICC’s jurisdiction have been committed in Libya, and decided to open an investigation. Continue reading “Saif al-Islam Gaddafi and the ICC: is the purported “amnesty” (or pardon) and “double jeopardy” a game-changer?”
The ICCBA is born. Huzzah! Now for the steep climb ahead.
On 30 June and 1 July 2016, the International Criminal Court Bar Association (ICCBA) came into being. The ICCBA is the first Bar Association for Counsel and their Assistants practising before the International Criminal Court (ICC). It was launched at the ICC in The Hague, the Netherlands, thanks to the generous support of the ICC Registrar.
For some of us it has been a long journey of persistent hard work. Few believed it could happen. Even fewer rolled up their sleeves to pitch in. As one of the midwives of the ICCBA, I celebrate the birth and respect that the baby has now been handed over to the duly elected leadership. In doing so, however, I take the liberty of also delivering a figurative Finnish baby box of observations, suggestions and warnings. Continue reading “The ICCBA is born. Huzzah! Now for the steep climb ahead.”
Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof
Hybrid: Anything derived from heterogeneous sources, or composed of elements of different incongruous kinds. (The Oxford English Dictionary, Second edition, Vol. VII, Oxford University Press 1989)
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 — Part II
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”