EARLY RELEASE: Has IRMCT President Carmel Agius moved the goalposts? (Part 2)

[W]hile it has been consistently emphasized that the two-thirds point is a mark of eligibility and not an automatic right to release, the Mechanism has inherited a long standing practice of granting requests for early release upon completion of two-thirds of a sentence absent particular circumstances that warrant against it. This practice was initiated by Judge Claude Jorda, during his tenure as President of the ICTY, and continued by subsequent Presidents of the ICTY thereafter.

President Meron in Corić, para. 38

In Part 1 I promised to settle the question of whether International Residual Mechanism for Criminal Tribunals (IRMCT) President Carmel Agius has moved the goalposts and perhaps even demanded confessions of guilt from convicted persons by adopting additional factors for early release. To answer this question, we must first look at the history of early release at the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the IRMCT, and how the jurisprudence has evolved over the past 20 plus years. In this post I will deal with the practice directions. I will then end the series in the next post by examining a number of cases, which should provide a good basis to draw some conclusions and some best practices. Continue reading “EARLY RELEASE: Has IRMCT President Carmel Agius moved the goalposts? (Part 2)”

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EARLY RELEASE: Has IRMCT President Carmel Agius moved the goalposts? (Part 1)

1967 Parole Hearings Man: Ellis Boyd Redding, your files say you’ve served 40 years of a life sentence. Do you feel you’ve been rehabilitated?


Red: Rehabilitated? Well, now let me see. You know, I don’t have any idea what that means.


1967 Parole Hearings Man: Well, it means that you’re ready to rejoin society…


Red: I know what you think it means, sonny. To me it’s just a made up word. A politician’s word, so young fellas like yourself can wear a suit and a tie, and have a job. What do you really want to know? Am I sorry for what I did?


1967 Parole Hearings Man: Well, are you?


Red: There’s not a day goes by I don’t feel regret. Not because I’m in here, or because you think I should. I look back on the way I was then: a young, stupid kid who committed that terrible crime. I want to talk to him. I want to try and talk some sense to him, tell him the way things are. But I can’t. That kid’s long gone and this old man is all that’s left. I got to live with that. Rehabilitated? It’s just a bullshit word. So you go on and stamp your form, sonny, and stop wasting my time. Because to tell you the truth, I don’t give a shit.

The Shawshank Redemption (1994)

A sentence imposed by some of the international(ized) criminal tribunals or courts, including the International Residual Mechanism for Criminal Tribunals (IRMCT), rarely reflects the years a convicted person will end up serving, just as eligibility for early release rarely corresponds with early release. Yet convicted persons, confusingly, consider early release upon eligibility as a given – an entitlement, as if it were a right. You cannot blame them. As they see it (as do many of us on the defense), baked into the sentence is the factor of eligibility for early release after serving the mandatory portion of the sentence, which, at the IRMCT, is 2/3 of the sentence imposed.

Early release is neither novel nor unique practice at the IRMCT. First adopted by the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) despite the absence of an express statutory provision, it is a time-tested and well-established practice in domestic penal systems. Continue reading “EARLY RELEASE: Has IRMCT President Carmel Agius moved the goalposts? (Part 1)”

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Book Review: EXTRAORDINARY JUSTICE – Law, Politics, and the Khmer Rouge Tribunals

EXTRAORDINARY JUSTICE – Law, Politics, and the Khmer Rouge Tribunals, by Craig Etcheson, Columbia University Press, 2020, 488 pages, $65.00

My central thesis in this work is that the law is at base an ideological enterprise, an ideology we can generally label as “legalism.” But – and this is crucial – the law is not a single, unified ideology. Rather, there are several different approaches to the concept of law, and we can see the animating principles underlying those different approaches in the way that war crimes tribunals are negotiated, operated, and concluded. I call these three approaches to law classical legalism, strategic legalism, and instrumental legalism. All three are long-standing, widespread, potent, and enduring. And the outcome of struggles among proponents of these different approaches determine much about how any particular war crimes tribunal ultimately unfolds.

The establishment of the Extraordinary Chambers in the Courts of Cambodia (ECCC) is a complex story, beginning in the late 1970s and early 1980s as the atrocities taking place during the Democratic Kampuchea (DK) regime (1975-1979) became known. A show trial took place in August 1979. Pol Pot and my client, Ieng Sary, were held to account for all that had occurred. After the 1991 Paris Peace Agreement – which led to probably the fairest election in Cambodia’s history in 1993 – bringing to book the leaders of the DK regime and other responsible high-level Khmer Rouge cadre started to gain some momentum. Eventually, on 6 June 2003, an Agreement was hammered out between the Cambodian government, controlled by the Cambodian People’s Party (CPP), and the United Nations (UN).

Getting to this Agreement, what the parties (purportedly) understood to have agreed to, what emerged from this Agreement – i.e., the procedural framework of an international(ized) criminal tribunal or specialized chamber within a national court system, its jurisdictional contours and applicable law, its hybridity of personnel, personality, and their interactions (national and international) in making the ECCC happen, and how it has operated – is what EXTRAORDINARY JUSTICE – Law, Politics, and the Khmer Rouge Tribunals is all about. Continue reading “Book Review: EXTRAORDINARY JUSTICE – Law, Politics, and the Khmer Rouge Tribunals”

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ICC Prosecutor Fatou Bensouda decides to investigate the situation in the Philippines: was it appropriate to do so two days before the end of her tenure?

As I stated many times before, the Court today stands at a cross-roads in several concurrent situations, where the basis to proceed is legally and factually clear, but the operational means to do so are severely lacking. It is a situation that requires not only prioritization by the Office, which is constantly being undertaken, but also open and frank discussions with the Assembly of States Parties, and other stakeholders of the Rome Statute system, on the real resource needs of the Court that will allow it effectively to execute its statutory mandate. There is a serious mismatch between situations where the Rome Statute demands action by the Prosecutor and the resources made available to the Office. As the end of my term approaches, I reiterate my call for a broader strategic and operational reflection on the needs of the institution, and what it is intended to achieve – in short, an honest reflection on our collective responsibility under the Rome Statute to advance the fight against impunity for atrocity crimes. The victims of these egregious crimes deserve nothing less.  —  Prosecutor Fatou Bensouda, 14 June 2021

Former ICC Prosecutor Fatou Bensouda

Before the virtual ink was dry on the press release, questions were being raised as to whether it was appropriate for ICC Prosecutor Fatou Bensouda to forward a request to investigate the situation in the Philippines pursuant to Article 15 of the Rome Statute just two days before the end of her tenure. The request was actually filed on 24 May 2021, but for some, even that was too close for comfort – believing that such a momentous decision (making a request to investigate a situation) should be left for her successor, Mr. Karim A. Khan, QC. The short answer is yes, Prosecutor Bensouda acted appropriately. Here is why. Continue reading “ICC Prosecutor Fatou Bensouda decides to investigate the situation in the Philippines: was it appropriate to do so two days before the end of her tenure?”

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Book Review: ADAPTING INTERNATIONAL CRIMINAL JUSTICE IN SOUTHEAST ASIA – Beyond the International Criminal Court

ADAPTING INTERNATIONAL CRIMINAL JUSTICE IN SOUTHEAST ASIA – Beyond the International Criminal Court, by Emma Palmer, Cambridge University Press, 2020, 325 pages, $85.00

Principles of sovereignty, related fears of international interference or selective prosecutions, a preference for domestic proceedings, the influence of other states such as the United States, and the existence of other priorities – including development and threats to stability arising from armed conflict – are all features of the debate about international criminal justice in Southeast Asia, although they may also be relevant beyond the region. (p. 237)

When I first arrived in Cambodia in 1994 to train human rights advocates to act as public defenders for the Cambodia Defenders Project, followed by a year of training judges and prosecutors (1995-1996), foreigners working at NGOs and international organizations were beating the drums of accountability – raising the prospect of bringing to trial those responsible for the atrocities that had occurred before, during, and after the Democratic Kampuchea (DK) period. The NGO industry was flourishing. It was like the wild West with experts, much like out-of-town hired guns, offering their services – much of which I would say was half-baked at best. I rarely heard local Cambodians calling for trials or justice; the primary, if not exclusive, preoccupation was having a roof over one’s head, food on the table, and schooling for the children.

Back then Cambodia was much different, though some things, as in the rule of law, have remained the same. There were only a handful of Cambodian lawyers (mainly from abroad), no bar association, a medley of applicable criminal codes and procedures, an untrained and unsophisticated judiciary (ditto for prosecutors), ethically challenged police (highly corrupt), and an exhausted yet hopeful population looking to promising days ahead. Continue reading “Book Review: ADAPTING INTERNATIONAL CRIMINAL JUSTICE IN SOUTHEAST ASIA – Beyond the International Criminal Court”

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THE STL BILLION DOLLAR RULE 61 PROCEEDING: a charade of consequence to ICL 

Even if your goose habitually lays golden eggs, it will still be cooked. — Neil Gaiman

It was not curiosity that killed the goose who laid the golden egg, but an insatiable greed that devoured common sense. — E.A. Bucchianeri

In my previous post I discussed how the Special Tribunal for Lebanon (STL) has squandered not just time and money, but also the good will of its funders who bought into the idea of establishing an international(ized) ad hoc tribunal to effectively prosecute domestic crimes, and in so doing, benefit International Criminal Law (ICL) by adding to its list of crimes under Customary International Law (CIL), the crime of terrorism.

I may be oversimplifying things. But when you cut through the fog of how and why the STL was established (aside from expected knee-jerk reactions at the domestic level by interested/subjective parties such as the victims’ family, friends, and political allies) it is what it is. Less charitably, it would appear to have been a vanity/ego project of the late professor, turned judge, Antonio Cassese, who aside from trying to solidify into ICL his concoction of Joint Criminal Enterprise (JCE) – now discredited, in part, due to his (and his colleagues’ who went along) reliance on bogus supporting jurisprudence – wished to further place his mark in ICL history by heralding a new crime in CIL, to wit: terrorism. I’m calling it bluntly as I see it. Continue reading “THE STL BILLION DOLLAR RULE 61 PROCEEDING: a charade of consequence to ICL “

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Happy STL Begging Games! And may the odds be in justice’s favor

‘Mr. Limbkins, I beg your pardon, sir! Oliver Twist has asked for more!’


‘FOR MORE’ said Mr. Limbkins. ‘Compose yourself, Bumble, and answer me distinctly. Do I understand that he asked for more, after he had eaten the supper allotted by the dietary?’


‘He did, sir,’ replied Bumble.


‘That boy will be hung’ said the gentleman in the white waistcoat. ‘I know that boy will be hung.’


Oliver Twist, Charles Dickens

Due to the severe financial situation currently facing the Special Tribunal for Lebanon (STL), on 3 June 2021, Trial Chamber II canceled the commencement of the Ayyash trial scheduled for 16 June 2021. It also suspended all decisions on filings presently before it, and any future filings, until further notice. Mr. Salim Jamil Ayyash is charged with five counts, including acts of terrorism in relation to three attacks against prominent Lebanese political figures, Mr. Marwan Hamade, Mr. Georges Hawi, and Mr. Elias El-Murr, carried out on 1 October 2004, 21 June 2005, and 12 July 2005 respectively, connected with the terrorist attack that killed former Lebanese Prime Minister Rafik Hariri.

Poor thing, the STL. The inevitable has arrived. After years of being on an extravagantly gluttonous diet, the STL, with cap in one hand and bowl in the other, is forced to beg for more funds so it can carry on. Whether the STL should have been set up in the first place (I think not) is debatable, though it cannot complain that it has not had sufficient time and resources to carry out its mandate.

What does not seem debatable, however, is its failure to live up to the hype of those who promoted its creation and the expectations of those funding it. With the deepest of sympathies to the victims, the STL has proved to be an expensive, unrewarding, and ill-conceived boondoggle. Perhaps this is a watershed moment, an exquisite time to re-think whether the STL should declare victory and close its doors (revisionist legacy narrative to follow). Continue reading “Happy STL Begging Games! And may the odds be in justice’s favor”

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The ICC OTP’s Draft Policy on Situation Completion: rounding out the policy trilogy

The Prosecutor’s decision whether to prosecute a case, or otherwise how to manage it, will be informed by a rigorous process of internal peer review of the evidence, including the participation of senior members of the Office assigned to other situations as well as relevant subject-matter specialists (law, analysis, sexual and gender-based crimes, children, etc.).  (para. 28)

Nearly two decades after the International Criminal Court (ICC) was founded, the Office of the Prosecutor (OTP) circulated its Draft Policy on Situation Completion. It “completes a trilogy of policy papers describing the life cycle of the Office’s operations in a situation,” to be read along with the other two policy papers, the Policy Paper on Preliminary Examinations (2013) and the Policy paper on case selection and prioritisation (2016). It runs just over 21 pages. Less is generally more, but in this case, less is because more (as in substance) is wanting.

Some initial observations. Continue reading “The ICC OTP’s Draft Policy on Situation Completion: rounding out the policy trilogy”

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Book Review: SHOCKING THE CONSCIENCE OF HUMANITY

SHOCKING THE CONSCIENCE OF HUMANITY – Gravity and the Legitimacy of International Criminal Law, by Margaret M. deGuzman, Oxford University Press, 2020, 217 pages, £80.00/$90.00

Global adjudicative authority is the authority that national and supranational institutions exercise when they adjudicate crimes on behalf of the global community…. [T]he moral justification for global prescription is the global community’s interest in preventing harm to human dignity. Global prescription is thus justified for all non-minimal harms to human dignity, and is most strongly legitimate for those in which the global community has the greatest interest. In contrast, the legitimacy of global adjudication depends not only on the strength of the global community’s interest in adjudication, but also on whether that interest outweighs any countervailing interests. (p. 98)

Prosecutors in national jurisdictions exercise their authority on what to charge or not charge, based on several variables, with gravity not playing much of a role – at least not in the context understood and applied in charging international crimes. Gravity is more likely to come to the fore at sentencing. It makes sense. The legislature criminalizes conduct based on societal/community norms. Thus, whether a particular set of circumstances should be prosecuted generally does not factor gravity into the mix, as such, when the evidence supports a reasonable assessment that the requisite elements in establishing the commission of a crime are met. Put differently, if in the prosecutor’s opinion, the evidence is qualitatively sufficient to meet his or her burden of proof in establishing that a particular individual committed crimes, save for ancillary factors that militate against prosecution, the prosecutor is expected to charge and prosecute that individual. I am oversimplifying for the sake of brevity, but the point is that in national prosecutions, “gravity” plays a lesser role on whether to charge or not. Even then, usually, there are criteria that guide prosecutors and judges – as readily apparent when fashioning sentences. Continue reading “Book Review: SHOCKING THE CONSCIENCE OF HUMANITY”

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MISAPPREHENDING THE ESSENCE OF NO CASE TO ANSWER & WHY IT IS INTRINSIC TO ICC TRIAL PROCEEDINGS: interpreting an accused’s fair trial rights through an inquisitorial victim-oriented humanitarian-centered prism  

In my view, the rights of these 700 plus victims to express their views and concerns, as well as their rights to truth, justice and reparations, and to have an effective remedy, were at stake in this case. Having placed emphasis only on the rights of the accused, Judges Henderson and Tarfusser prematurely terminated the proceedings, without providing reasons. In doing so, they did not seem to have considered the rights of the victims. I recall the human rights are interconnected and indivisible, and there is no one human right that is more important than another. In my view, in no case can the rights of two accused be preferred over the rights of more than 700 victims without more, especially through a procedure that is not envisioned in the Statute, while the rights of the victims are duly established under the Statute.… [E]ven if Judges Henderson and Tarfusser, being minded to acquit, had concerns as to the liberty of the accused, there was no need to terminate the trial prematurely as the Trial Chamber had been seized of submissions on the continued detention of the accused and the judges could have granted provisional release. Instead, Judges Henderson and Tarfusser decided not to entertain such submissions and rather acquit the accused, halfway through the trial, under the no case to answer motions.

Dissenting Opinion of Judge Luz del Carmen Ibáñez Carranza

 

Occasionally a circumstance comes along when not correcting the record, when not speaking truth to power, when remaining silent out of fear of ruffling powerful feathers, is as uncomfortable as trekking in shoes a half-size too small, with a stone, or worse yet, a sharp thorn, in them. Here is one of those occasions. Aside from finding Judge Luz del Carmen Ibáñez Carranza’s understanding of no case to answer procedure at the ICC flawed and ill-conceived, as a defence lawyer I find her above quoted dissenting remarks shocking, even scandalous. So, let me bring some clarity on the seemingly pesky no case to answer procedure by discussing its purpose and why under the adopted ICC regime it is not only appropriate, but indispensable. I will then deal with Judge Ibáñez Carranza’s comments which seemingly suggest that judges should, in some instances, apply a utilitarianism test when deciding to what extent they should afford an accused their right to the presumption of innocence and whether, for the sake of the victims, the prosecution should be given a pass when unable to meet its burden of proof. Continue reading “MISAPPREHENDING THE ESSENCE OF NO CASE TO ANSWER & WHY IT IS INTRINSIC TO ICC TRIAL PROCEEDINGS: interpreting an accused’s fair trial rights through an inquisitorial victim-oriented humanitarian-centered prism  “

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