Updated and expanded edition of my book is out

Third, updated and expanded, edition of my book on the law and jurisprudence of the international criminal tribunals and courts has been published with Eleven international publishers.

See publisher's website and table of contents. 

This book provides the most comprehensive overview of the law and jurisprudence of the international and internationalized criminal courts and tribunals concerning procedure, evidence, and human rights. It analyses the origin and evolution of the relevant statutory provisions and provides the rationale behind the evolution. This edition reflects developments of the law and jurisprudence since the previous edition and expands its subject matter. The cited jurisprudence and law is up to date as on 1 September 2021.
The Law and Jurisprudence of the International Criminal Tribunals and Courts contains a digest and analysis of relevant decisions and judgements as well as the law of the ICC and other international courts and tribunals. It also provides references to the relevant judgements of the ECtHR and the views of the CCPR. It will be of interest to practitioners, scholars, and law students interested in international criminal justice.

Crimes against “humaneness”? The Russian interpretation of Crimes Against Humanity

It is generally recognized that the term ‘humaneness’ is the least appropriate among several candidates in the English language for use with crimes against humanity.
Yet, this term has been used by one of the official languages of the United Nations — Russian. Crimes against humanity has been translated as ‘crimes against humaneness’ — prestupleniya protiv chelovechnosti — in the Russian versions of statutes of international criminal tribunals and courts. This translation distorts the concept of crimes against humanity and diminishes the gravity of this group of crimes. Indeed, the post-Nuremberg meaning of the term ‘humanity’ has evolved into ‘humankind’.

Journal of International Criminal Justice | Oxford Academic published my article “Crimes against ‘Humaneness’? The Russian interpretation of Crimes Against Humanity” (see here).

The article analyses the circumstances leading to the appearance of this term in the Russian version of draft Article 6(c) of the Statute of the International Military Tribunal in Nuremberg. It demonstrates inconsistencies in Russian official translations of the notion which have resulted in interpretative confusions.

My new book

My new book  about to be published with Intersentia Publishers (see here).

The book provides the most comprehensive overview of the law and jurisprudence of the ad hoc international criminal tribunals and courts, and the International Criminal Court. It also includes relevant jurisprudence of the European Court of Human Rights and practice of the UN Human Rights Committee.
It examines the nature and evolution of the relevant statutory provisions of the international criminal tribunals and provides the rationale behind the evolution.

The book contains a digest and analysis of relevant decisions, orders and judgements and the law of the ICTY, ICTR, SCSL, ECCC, ICC, as well as the relevant judgements of the ECtHR.
It also analyses the origin and evolution of some procedural rules of the ICTY, ICTR, and SCSL.

Table of contents

Is the first ICC acquittal accidental?

It seems that the acquittal in the Ngudjolo case has exposed a serious flaw in the Office of the Prosecutor of the ICC - the shortfall of professional criminal investigators.
The accused has been acquitted mainly because of poor quality (lack of credibility) of the prosecution evidence.
For some reason, from the very beginning, the OTP has neglected the role of the experienced professional field investigators in the ICC investigations. In the early days of the ICC, according to the vacancy announcements for the investigators’ positions, an experience in conducting journalistic or NGO investigations would qualify a person for the job. One may argue that, while assistance of these categories might be useful in conducting criminal investigations it is no substitute for the relevant experience.

In this regard I would like just to repeat what I wrote in my article “Special Commentary: International Criminal Justice – Some Flaws and Misperceptions” in Criminal Law Forum (see the accepted author’s version of the article here):

“Experienced police field investigators are indispensible in international tribunals. They have the necessary professional training in investigation techniques related to crime scene investigation, protection of witnesses, working with informants and insiders, proper handling of evidence an so on. It is true that the investigation of perpetrators in positions of leadership involves comprehensive analysis and the piecing together of the evidence linking those perpetrators to atrocity based crimes. That said, one still has to prove that crimes were committed; one still has to collect crime-base pattern evidence. This involves extensive field investigations. The investigation of international crimes is not entirely, as is often alleged, akin to domestic white-collar crime investigations. Neither does it merely involve, albeit on a large scale, the investigation of ‘‘ordinary’’ offences such as murder and rape. It is in fact a complex combination of both, and such a combination requires a blend of relevant investigative experience and skill. In this regard, it would appear that the ICC is currently suffering from a lack of experienced, trained, field investigators".

It is noteworthy that there has been no Deputy Prosecutor for Investigation in the ICC since 2007. The newly elected Deputy Prosecutor, a well-known international jurist, like his predecessor, the current Prosecutor, is also the Deputy for Prosecution. Apparently, the criminal investigation is still not considered a priority in the OTP.

Taylor case - judges vs ... a judge

Seems that the treatment of the alternate judge by the judges of the Trial Chamber II and his reaction to it are far from getting better.

The latest incident happened at the disqualification hearing of the Emergency Plenary initiated by the Trial Chamber against the alternate judge Malick Sow.
The fellow judges actually “ambushed” him at the hearing. According to the Appeals Chamber’s judge George Gelaga King, judge Malick Sow was not given prior notice of and had not been given the opportunity to respond to “sudden and scurrilous allegations made against him.”
This, in the judge King view, “was tantamount to ‘a perversion of justice.’”

It was the public statement made by the alternate judge Malick Sow immediately after the presiding judge completed reading the judgement, that drew attention of the public and triggered the disqualification procedure.
That statement comes down to three points:
- there was no deliberation on the judgement (or, at least he was not aware of such deliberation);
- the guilt of the accused was not “proved beyond reasonable doubt”; and
- the “whole system is not consistent with the values of international criminal justice, and ... is under grave danger of just losing all credibility...”

Indeed, this was not the first time that the judges expressed their frustration over the unfairness, in their view, of the proceedings and practices in international courts. One may recall, for instance, strong statements made by some ICTY judges in their separate opinions:

“This Tribunal will not be judged by the number of convictions ..., but by the fairness of its trials. The Majority Appeals Chamber Decision and others in which the Completion Strategy has been given priority over the rights of the accused will leave a spreading stain on this Tribunal’s reputation” (judge Hunt in the Milosevic case).

“Since it was set up, the ICTY has operated on this system, which has surprised many... This seems all the more crucial because of the public accusations made against our institution by persons of indisputable character who said ... ‘The proceedings developed by the ICTY call more to mind the trials conducted by totalitarian regimes than the great principles of international law ...’ I personally cannot espouse a scheme described as a trial of a “totalitarian regime” (Judge Antonetti in the Seselj case).

Similarly, in regard to the declaration by the alternate judge of wrongful, in his opinion, conviction of the accused: there is nothing extraordinary in different assessment of the sufficiency of evidence by the judges. As noted in the Tadic appeal judgement, two judges, both acting reasonably, can come to different conclusions on the basis of the same evidence.

As to the alternate judge’s not been involved in the deliberation (if there was one, formal or informal), one may recall that his statement was preceded by another confrontation in the courtroom.

Last year, at one of the hearings where only two judges and the alternate judge were present, the presiding judge adjourned the hearing as the Chamber, according to him, was not “properly constituted” (composed of two judges instead of three).
Reaction of the alternate judge was rather strong:

“I’m not here for decoration. I am a judge. This Bench is regularly composed, as everybody can see ... We are three judges sitting.”

To this, the presiding judge merely noted that “this is not a situation where Rule 16 applies.”

Indeed, under Rule 16(B) of the SCSL Rules, an alternate judge may replace a judge only if that judge is unable to continue sitting for more than five days. In that instance the judge was not available only for that particular hearing.

Apparently it is the treatment of the alternate judge by his fellow judges and his dissatisfaction of his role in the Chamber that contributed to the judge’s frustration.

Pursuant to Rule 16 bis of the SCSL Rules, the role of the alternate judge in the proceedings is rather passive:
- he or she shall be present at the trial;
- may, through the presiding judge, pose questions which are necessary for his understanding of the trial proceedings;
- shall be present during the deliberations of the Trial Chamber but shall not be entitled to vote thereat.

This Rule is similar to Rule 15 ter of the ICTY Rules. However, Rule 16 bis does envisage a possibility for a more active role of the alternate judge. According to the Rule, he or she may perform such other functions as the presiding judge in consultation with the other judges of the Chamber may deem necessary.
It is noteworthy that, as prof. William A. Schabas wrote on his blog, in the ICTY, the reserve judges fully participate in the judicial work of the Chambers.

ICTR Trial Chamber: no material compensation for unjustified detention

In November 2009, the ICTR Appeals Chamber had acquitted Zigiranyirazo. According to the Appeal Judgement, his convictions “violated the most basic and fundamental principles of justice."

In February this year, Zigiranyirazo filed a motion requesting financial compensation.
A week ago, the Trial Chamber denied the request.
The Chamber recognized that “Mr. Zigiranyirazo suffered prejudice as a result of the year of detention between his conviction by the Trial Chamber and his subsequent acquittal by the Appeals Chamber.”
However, the Chamber, denying the request, referred, inter alia, to the fact that the claimant “did not allege that the Prosecution was malicious or that the Trial Chamber was improperly constituted or motivated.”

 In his Dissenting Opinion, judge Park opined that the “claimant’s detention following his conviction was entirely unjustified and ... violated his most basic and fundamental rights. In the circumstances the only effective remedy to the damage suffered by the claimant that was available to the Chamber is monetary compensation.”
As to the majority’s remark that “courts of first instance regularly make mistakes of fact and/or law”, the judge noted that distinction shall be made “between errors that impinge on the rights of the accused and those that do not affect the rights of the accused.”
In regard to the majority’s reasoning that the request for compensation was submitted over two years after the acquittal, the judge opined that as the “Chamber is vested with inherent power to redress violations of rights, time limits cannot impede the Chamber from invoking this power in order to address a violation of rights and harm suffered consequent upon such violation.”

Incidentally, the next day after this decision, the ICJ delivered its judgement on compensation in the Diallo case.
The Court, in particular, found that Mr. Diallo “had been arrested without being informed of the reasons for his arrest and without being given the possibility to seek a remedy”, and “was detained for an unjustifiably long period.”
The Court concluded that “the DRC’s wrongful conduct caused Mr. Diallo significant psychological suffering and loss of reputation.”
Accordingly, the ICJ found that the non-material injury suffered by Mr. Diallo shall be financially compensated.
Indeed, there is no reference to such requirement as malicious motivation of the authorities or judiciary in the ICJ judgement.

Yet another separate opinion by judge Antonetti

(amended on 20 April)
A few days ago, the English version of the Trial Chamber's decision on the Seselj's  motion for contempt against Carla Del Ponte and some other members of the Prosecution was posted on the ICTY website.

The Chamber, on the basis of Amicus Curiae report, concluded that there was not sufficient grounds to instigate proceedings for contempt.

In his separate opinion, judge Antonetti expressed his "great regret" that, because of the Tribunal's practice of secret decisions, he had to cut certain parts of his opinion, thus not allowing the public to know his entire argument.
In this regard, the judge took the opportunity to join the critics of the ICTY practice of “secret” decisions in general and the ICTY proceeding against Florence Hartmann on the contempt case in particular.

In his separate opinion, the judge, in particular, states: "I am unhappy that our decisions are of a confidential ex parte or confidential nature, because I come from a legal system where there are no confidential decisions and even fewer secret ones, as the overarching principle is adversarial. Since it was set up, the ICTY has operated on this system, which has surprised many."

The judge further quotes a letter published in Le Monde, where a group of authors urged the French Government to deny ICTY request for the Hartmann’s arrest. According to the letter, quoted by the judge, “the proceedings developed by the ICTY call more to mind the trials conducted by totalitarian regimes ...” After the quotation, the judge adds - “I personally cannot espouse a scheme described as a trial of a “totalitarian regime”.

The presiding judge also strongly criticises the methods and quality of the Amicus investigation. In this regard, he recalls that his “first instinct” was to recommend as the Amicus “someone like Judge Garzón”.

Šešelj, Decision on Vojislav Šešelj’s Motion for Contempt against Carla Del Ponte, Hildegard Uertz-Retzlaff and Daniel Saxon and on the Subsequent Requests of the Prosecution, Case No. IT-03-67-T, T. Ch., 22 December 2011

France refused to execute the ICTY order for arrest of French journalist

In 2009, the Tribunal convicted Florence Hartmann, a French journalist who had served as the spokesperson for the former ICTY Prosecutor Carla del Ponte in 2000-2006.
Hartmann was convicted for the disclosure in her publications some information in violation of two confidential Appeals Chamber’s decisions in the Milosevic case.
She was sentenced to 7000 euro fine.
As Hatmann failed to pay the fine, the Tribunal replaced it with the penalty of 7 days imprisonment and forwarded the arrest warrant to France.

Today, the French Ministry of Foreign Affairs has informed that France will not arrest Hartmann.
According to the Ministry, France has the obligation to cooperate with the Tribunal on serious crimes under the Tribunal’s jurisdiction.
As the contempt is not that kind of crime, France has no obligation for cooperation in the Hartmann case.

Indeed, the ICTY has no police force to arrest a person and it has to rely on the States’ cooperation.
Following the France’s approach, there is no chance to have arrested a person charged by the Tribunal with the contempt.

One may recall, that, in 2005, a Croatian reporter Josip Jovic, who also was charged by the ICTY with the contempt, was arrested by the Croatian authorities on the Tribunal’s arrest warrant. Croatia based its decision on the Constitutional Law on Cooperation with the ICTY.

See also Confidential judicial decisions and the right to freedom of expression.

International Criminal Justice – Some Flaws and Misperceptions

My article Special Commentary: International Criminal Justice – Some Flaws and Misperceptions in Criminal Law Forum is now available on the publisher's website.

The article contains critical analysis of some aspects of the international criminal justice.

Those who do not have access to the online version, can find the accepted author’s version of the article here.

Database of the Working Group on Arbitrary Detention

The Database of the Working Group on Arbitrary Detention is now available on the Working Group's website.

The database contains decisions (opinions) of the Working Group and is searchable by specific provisions of the relevant international human rights instruments, categories of cases, etc.

The first early release of ICTR convict

A few days ago, the President of the ICTR granted early release of Bagaragaza who had been convicted to 8 years’ imprisonment for complicity in genocide.

This is the first early release of an ICTR convict.
Moreover, never before has the early release been applied by the ad hoc Tribunals to a person convicted for genocide or complicity in genocide.

According to the Decision, Bagaragaza is to be released after 3/4 of his sentence has been served, namely, from 1 December 2011.

The President of the ICTR has taken into account, inter alia, Bagaragaza’s guilty plea and his substantial cooperation with the Prosecution.

The President acknowledged that cooperation with the Prosecutor was considered as a mitigating factor in the determination of the sentence.
In the President's view, however, this does not preclude its consideration during the determination of eligibility for early release.

Bagaragaza, Decision on the Early Release of Michel Bagaragaza, Case No. ICTR-05-86-S, President of the Tribunal, 24 October 2011.

ECCC Trial Chamber rejects Prosecution’s request for reconsideration of the severance Order

Today, the ECCC Trial Chamber has rejected Prosecution’s request for reconsideration of its severance Order (see previous post).

In its Decision, the Trial Chamber noted that in their request, the Co-Prosecutors place considerable reliance on ICTY Rule 73bis, deriving from it a mandatory obligation to seek the views of the Co-Prosecutors before decisions on severance are taken.

Pursuant to ICTY Rule 73bis, after having heard the Prosecutor, the Trial Chamber, may, inter alia invite the Prosecutor to reduce the number of counts charged in the indictment.

In this regard, the Chamber emphasised that the ICTY Rule evolved in the context of adversarial proceedings, where indictments are initiated and amended by the Prosecution.
A similar Rule, according to the Chamber, would be ill-suited to the ECCC, where proceedings are instead inquisitorial and whose indictments are judicially controlled.

Indeed, under Rule 67 of the ECCC Internal Rules, it is the Co-Investigating Judges who, upon conclusion of the investigation, indict a person and send him to trial.

The Chamber reiterated that the severance Order enables it to issue a first verdict limited to certain counts and factual allegations at an earlier stage, without the need to await a conclusion of the whole trial in relation to all portions of the indictment.

The Chamber also noted that, as no allegations or charges in the indictment are discontinued in consequence of the Severance Order, there is no need for the first trial to be reasonably representative of the totality of charges.

See also ECCC Co-Prosecutors seek reconsideration of the Severance Order.

Trial Chamber denied Prosecution’s motion to split indictment against Mladic

Today, the Trial Chamber has denied the Prosecution’s motion for the severance of the indictment against Mladic.

The Prosecutor requested severance of the indictment against 70-year-old Mladic referring, inter alia, to “the need to plan for the contingency that Mladic’s health could deteriorate.”
In the Prosecutor’s view, the severance would “best allow the proceedings to be adapted in case of unforeseen contingencies.”

In its decision, the Chamber stressed that, if the argument was that justice would be better served by concluding with a judgment of at least one smaller trial, the Prosecution should have argued this clearly and directly in its submission.

In particular, according to the Chamber, if the basis underlying the Prosecution’s motion was the health of the accused, it should have made a detailed submission in this respect, supported by medical documentation.
The Chamber stressed that it cannot base its findings on media reports or other such sources.

Accordingly, the Chamber has considered that there is no reason to sever the indictment.

It also considered that severance could prejudice the accused, could render the trials less manageable and less efficient, and risk unduly burdening witnesses.

See also:
- ECCC Co-Prosecutors seek reconsideration of the Severance Order
- Prosecution moves for splitting Mladic trial. Milosevic lesson learned?

ECCC Co-Prosecutors seek reconsideration of the Severance Order

Last month, the Trial Chamber in the Nuon et al. case ordered the separation of proceedings concerning some charges in the indictment. (see previous post)

About a week ago, the Co-Prosecutors have requested the Chamber to reconsider the Order.

In the Co-Prosecutors’ view, more than one trial against the accused, as foreseen by the Order, is “highly unlikely” having regard, in particular, to the advanced age of the accused (86, 85, 80, and 79 years).

The Co-Prosecutors opine that the Order is not representative of the indictment.
Given the substantial risk that the accused will only stand trial once, the Order has the effect of excluding crimes that represent the core and most serious alleged criminal conduct in the indictment.

Accordingly, the Co-Prosecutors propose an alternative form of severance of the indictment which, in their view, is more representative of the core criminal allegations.

See also - ECCC Trial Chamber rejects Prosecution’s request for reconsideration of the severance Order;- The Chamber of the Cambodian Extraordinary Chambers ordered severance of the proceedings; and

- Prosecution moves for splitting Mladic trial. Milosevic lesson learned?

The Chamber of the Cambodian Extraordinary Chambers ordered severance of the proceedings

In February 2011, the ECCC adopted new Rule 89 ter, which allows the Trial Chamber to severe the proceedings.
In particular, pursuant to the Rule, the Trial Chamber may order the separation of proceedings concerning part or the entirety of the charges contained in an indictment. The cases as separated shall be tried and adjudicated in such order as the Trial Chamber deems appropriate.

Last week, in accordance with this Rule, the Trial Chamber in the Nuon et al. case ordered the separation of proceedings concerning some charges and relevant factual allegations described in the indictment.

The Chamber ordered that the number of witnesses to be called by the Chamber will be limited to those whose proposed testimony is required for the first trial.

It was emphasised that the separation of proceedings would enable the Chamber to issue a verdict following a shortened trial, safeguarding the fundamental interest of victims in achieving meaningful and timely justice, and the right of the accused to an expeditious trial.

Nuon et al., Severance Order pursuant to Internal Rule 89 ter, Case No. 002-ECCC, T. Ch., 22 September 2011.

See also Prosecution moves for splitting Mladic trial. Milosevic lesson learned?

Prosecution moves for splitting Mladic trial. Milosevic lesson learned?

(Updated 29 September)

On 16 August 2011, the ICTY Prosecutor filed a motion to sever indictment against 70-year-old Mladic and to conduct separate trials, starting with Srebrenica charges.
Among the factors taken into account, the Prosecution referred to “the need to plan for the contingency that Mladic’s health could deteriorate.”
In the Prosecution’s view, such an approach will “best allow the proceedings to be adapted in case of unforeseen contingencies.”

Apparently, the Prosecution learn from the mistakes made in the Milosevic case.

In the Milosevic case, in December 2001, the Trial Chamber denied Prosecution motion to join three indictments (Bosnia, Croatia, and Kosovo) and ordered the Kosovo indictment tried separately before the other two.
The Prosecution insisted on the single “mega-trial”, and the Appeals Chamber granted its appeal.
At the same time, the Appeals Chamber cautioned that “if ... it becomes apparent to the Trial Chamber that the trial has developed in such a way as to become unmanageable ... it will still be open to the Trial Chamber at that stage to order a severance of the charges arising out of one or more of the three areas of the former Yugoslavia.”

Indeed, after two years of trial, in July 2004, the Trial Chamber, considering the poor health of the 60-year-old accused, again raised the issue of severance and separating the Kosovo part.
Once again, the Prosecution strongly opposed to the severance.

After another two years, in 2006, the accused died. The four-year trial was terminated with no judgment.

        Mladić, Consolidated Prosecution Motion to Sever Indictment, to Conduct Separate Trials and to Amend Resulting Srebrenica Indictment, Case No. IT-09-92-PT, Prosecutor, 16 August 2011. 

Update: Unlike ICTY Rules, which do not contain a specific Rule which would govern such situation, the ECCC Rule 89 ter, adopted in February 2011, does allow the Trial Chamber to severe the proceedings.
In accordance with this Rule, on 22 September 2011, the Trial Chamber in the Nuon et al. case ordered the separation of proceedings concerning some charges and relevant factual allegations described in the indictment.

See also Mladic case, will it be joined with the Karadzic's?

Freedom of expression and contempt of court

(See previous post on this blog: “Confidential judicial decisions and the right to freedom of expression”)

The position of the ICTY Appeals Chamber in the Hartmann case has found support in the just issued commentary of the UN Human Rights Committee.
The Committee has issued an authoritative new commentary on the extent to which the freedom of opinion and expression can be restricted by a state.

Interpreting the Article 19.3 of the ICCPR requirement that the restriction to an individual’s freedom of expression must be provided by law, the Committee has explained that the “[l]aw may include ... laws of contempt of court.”

See Human Rights Committee, General comment No. 34, Article 19: Freedoms of opinion and expression, CCPR/C/GC/34, 21 July 2011, para. 24.

Confidential judicial decisions and the right to freedom of expression

 (See also Freedom of expression and contempt of court on this blog)

Several days ago the ICTY Appeals Chamber rejected all the grounds of appeal advanced by Florence Hartmann, convicted for contempt of the court.

Hartman, a journalist, served as the spokesperson for the former ICTY Prosecutor Carla del Ponte in 2000-2006.
In 2009, she disclosed in her publications some information in violation of two confidential Appeals Chamber’s decisions in the Milosevic case.

Rejecting one of the grounds of the appeal, the Appeals Chamber held that there is no strong presumption of unrestricted publicity for matters a Chamber has ruled are not to be disclosed to the public.

In this regard the Appeals Chamber recalled that Article 19(3) of the ICCPR recognises that the exercise of the right to freedom of expression may be subject to certain restrictions.
The restrictions shall only be such as are provided by law and are necessary, in particular, for the protection of public order.

The Chamber further referred to the travaux préparatoires of the ICCPR which indicate that the protection of public order in Article 19(3) of the ICCPR was intended to include the prohibition of the procurement and dissemination of confidential information.

The Chamber also noted that, in respect of whether the restriction to an individual’s freedom of expression is “necessary” to achieve its aim, the Human Rights Committee considered whether the action taken was proportionate to the sought-after aim.

The Chamber found that the two appeal decisions in the Milosevic case contained restrictions on the freedom of expression that were “provided by law” because they were filed confidentially under protective measures granted pursuant to Rule 54bis of the ICTY Rules.

Furthermore, according to the Chamber, restricting Hartmann’s freedom of expression in this manner was both proportionate and necessary because it protected the “public order” by guarding against the dissemination of confidential information. These restrictions were therefore within the ambit of Article 19(3) of the ICCPR.
In this regard, the Appeals Chamber observed that the Trial Chamber found that the effect of Hartmann’s disclosure of confidential information decreased the likelihood that states would cooperate with the Tribunal in the future, thereby undermining its ability to exercise its jurisdiction to prosecute and punish serious violations of humanitarian law.

See Hartmann, Judgement, Case No. IT-02-54-R77.5-A, App. Ch., 19 July 2011

The first ICTR referral to Rwanda

Last week the ICTR referred the first case, Uwinkindi, to the Republic of Rwanda.

Previously, the ICTR Chambers denied the Prosecution’s applications for referrals to Rwanda on the ground that the accused would not receive a fair trial. In particular, in 2008, the ICTR denied referrals in the Gatete, Kanyarukiga, Hategekimana, and Munyakazi cases.

This time, the Chamber found that Rwanda had made “material changes in its laws and indicated its capacity and willingness to prosecute cases referred by the Tribunal.”

The Chamber adopted the decision after receiving assurances that a robust monitoring mechanism will ensure that any material violation of the fair trial rights of the accused will be brought to the attention of the President of the Tribunal forthwith so that remedial action, including revocation, can be considered by the Tribunal.

Special Tribunal for Lebanon: indictment is confirmed

Sealed indictment

It has been announced today, 30 June, that the STL Pre-Trial Judge confirmed the indictment relating to the assassination of Rafiq Hariri and others on 28 June 2011.
The indictment and accompanying arrest warrant(s) were transmitted to the Lebanese authorities today.
According to the announcement, the judge ruled that the indictment shall remain confidential in order to assist the Lebanese authorities in fulfilling their obligations to arrest the accused.

 Trial in absentia?

There is a likelihood that none of the accused will be arrested. In such a case the following procedure applies:

The Lebanese authorities must inform the President of the STL within 30 days after the confirmation of the indictment of the measures the state has taken to arrest the person(s) named in the indictment.

If after these 30 days no individual(s) is/are arrested and if the STL President considers that reasonable attempts to serve the indictment have been made, he may order a public advertisement calling on the accused to surrender to the Lebanese authorities.

If the accused has not been arrested within 30 calendar days of the public advertisements the Pre-Trial Judge can ask the Trial Chamber to initiate in absentia proceedings.

If the trial in absentia takes place, the accused would be represented by a counsel appointed by the Head of the Defence Office.

If the accused decides to present himself to the tribunal during trial proceedings or at any time after sentencing, he may request a new trial.