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

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.

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.

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.

SCSL: accused has the right to be heard at the conclusion of the trial

In the Taylor case, the Defence refused to file the accused’s final trial brief on the date required by the Chamber referring to the “instruction” of his client. Instead, the brief was submitted twenty days beyond the deadline.
The Trial Chamber refused to accept the brief, reasoning that it had received no submissions by the Defence which would cause the Trial Chamber to review or revise the scheduling order.

Last week, the Appeals Chamber reversed the decision, ordered to accept the accused’s final trial brief, and instructed the Trial Chamber to set a date to hear the Defence closing argument.

The Appeals Chamber noted that, under the practice of the SCSL, the final trial briefs of the parties contain the entire closing argument and the oral argument is reserved for highlighting details from that brief.
Filing the final trial brief is a condition precedent to presenting the oral argument and is an intrinsic part of that argument.

The Chamber recalled that the right to be heard at trial and to present a defence are fundamental rights of an accused.
The right to be heard at the conclusion of the trial is the right of the accused, not his counsel. The exercise of that right is discretionary, but it is the discretion of the accused that must be exercised, not his counsel.

The Trial Chamber had an obligation to ascertain on the record that the accused fully understood and agreed with his lawyer’s actions and representations and that he was aware that the consequences of that agreement included the possibility that his right to be heard at the conclusion of the case could be considered waived.

The Appeals Chamber concluded that the Trial Chamber did not establish that there was a knowing, intelligent and voluntary waiver by the accused. Absent facts sufficient to determine a waiver, the Trial Chamber erred in assuming that the accused had waived his rights and in proceeding as if he had.

Taylor, Decision on Defence Notice of Appeal and Submissions Regarding the Decision on Late Filing of Defence Final Trial Brief, Case No. SCSL-03-1-T, App. Ch., 3 March 2011

The ECCC is powerless to consider an alleged misconduct of a national judge

In the Nuon et al. case (Extraordinary Chambers in the Courts of Cambodia), the Defence sought the disqualification of the Trial Chamber's President on the basis of alleged misconduct during his tenure as the President of one of the Cambodian provincial courts.
The Defence alleged that prior to joining ECCC, the judge admitted that he had “accepted cash gratuities from grateful litigants.”

The Trial Chamber dismissed the motion and held that, where allegations concern the fitness of an individual to serve as a judge, the relevant mechanisms within the ECCC context are the domestic mechanisms designed to uphold standards of judicial integrity within the Cambodian judiciary.

Nuon et al., Decision on Ieng Sary's Application to Disqualify Judge Nil Nonn and Related Requests, Case No. 002-ECCC, T. Ch., 28 January 2011

SCSL denied investigation of the identity of the sorces of the USG

The next day after the admission into evidence two confidential US government cables (see previous post), the Taylor Trial Chamber denied the Defence request to investigate and identify the sources within the Chamber, Prosecution and Registry who provided the USG with the information in the cables.

In particular, the Defence sought “information tending to suggest that the Prosecution has sought or received instructions from the USG regarding any aspect of the Taylor trial.”

The Chamber found that, while it is of concern to the Chamber that the United States government may have received information from “contacts” in Chambers, the Registry and the Prosecution, the evidence does not demonstrate whether these “contacts” have any relationship with the USG capable of interfering with the independence or impartiality of the Court or any organ of the Court.

The Chamber further held that, while the statements attributed to the sources within the Prosecution Registry, and Chambers indicate that information may have been provided to the US government by employees within the Court, the statements do not demonstrate that such sources were receiving instructions from the USG.

Taylor, Decision on Urgent and Public with Annexes A-N Defence Motion for Disclosure and/or Investigation of United States Government Sources within the Trial Chamber, the Prosecution and the Registry Based on Leaked USG Cables, Case No. SCSL-03-1-T, T. Ch., 28 January 2011.

SCSL Trial Chamber admitted into evidence two confidential US government cables

Yesterday, in the Taylor case, the Trial Chamber granted the Defence request to admit into evidence two US government cables obtained by WikiLeaks and published in the Guardian in December 2010.

In its motion of 10 January, the Defence argued that the leaked cables “clearly indicate, inter alia, two things: 1) the USG’s desire to ensure that Mr. Taylor does not return to Liberia ... 2) proof that there is and have been contacts between the Trial Chamber, the Prosecution and the Registry, respectively, and agents of the USG outside the official lines of communication.”
This, according to the Defence “raises grave doubts about the independence and impartiality of the Special Court’s prosecution of Charles Taylor. Viewed objectively, the evidence could lead to the reasonable conclusion that the indictment and trial of Mr. Taylor by the Special Court is no more than an extension of United States foreign policy interests in West Africa, with there being no genuine connection to any alleged crimes in Sierra Leone.”

Despite the Prosecution’s objection, the Chamber admitted the documents and noted that they “can be related to submissions made by defence counsel as well as sworn evidence by the accused”.

One of the judges of the Chamber, Julia Sebutinde, attached a declaration in which she stated that “it would be in the interests of justice for me to voluntarily withdraw myself from a decision on this Motion. The USG Code Cable ... involves a statement that un-named “sources in the Prosecution, Chambers and the Registry” ... allegedly made certain specific allegations against me...” She further declared that “while I am completely innocent of the allegations ..., in order for justice to be seen to be done, I should not participate in the deliberations or decision relating to this motion.”

(See also next post).

Taylor, Decision on the Urgent and Public with Annexes A-C Defence Motion to R-Open its Case in Order to Seek Admission of Documents Relating to the Relationship between the United States Governement and the Prosecution of Charles Taylor, Case No. SCSL-03-1-T, T. Ch., 27 January 2011.

The STL will discuss some elements of the crimes under STL jurisdiction

 (see further development here)

Pursuant to Rule 68(G) of the STL Rules, the pre-trial judge may submit to the Appeals Chamber any preliminary question, on the interpretation of the Agreement, Statute and Rules regarding the applicable law, that he deems necessary in order to examine and rule on the indictment.

On 21 January, upon receiving the indictment for the confirmation, the pre-trial judge raised before the Appeals Chamber the questions related to five matters:

1. Notion of terrorist acts;
2. Notion of conspiracy;
3. Constitutive elements of intentional homicide with premeditation and attempted intentional homicide with premeditation;
4. Modes of responsibility, with specific reference to commission and co-perpetration;
5. Cumulative charging and plurality of offences.

On the same day, the President of the Tribunal ordered that on 7 February the Appeals Chamber shall hold a public hearing in these matters, so as to provide the parties an opportunity to respond to each other’s submissions.

Indeed, under Article 2 of the STL Statute, the Tribunal shall apply the relevant provisions of the Lebanese Criminal Code relating to acts of terrorism and other crimes under the STL jurisdiction.
In particular, pursuant to Article 314 of the LCC, “The term ‘acts of terrorism’ includes all acts that are intended to cause a state of alarm and have been committed by means such as explosive devices, inflammable substances, toxic or corrosive products or infectious or microbial agents that are liable to pose a public threat.”

Lebanon, Scheduling Order, Case No. STL-11-01/I, President of the Tribunal, 21 January 2011.

Residual Mechanism for the ad hoc Tribunals

Two days ago, the Security Council decided to establish the International Residual Mechanism for Criminal Tribunals (Mechanism) and adopted its Statute.

The purpose of the Mechanism is to carry out a number of essential functions of the two existing ad hoc Tribunals, including the trial of remaining fugitives indicted by the ICTY or ICTR as the Tribunals are supposed to complete their work no later than December 2014.

The Mechanism can hardly be seen as a “new” Tribunal.

Under the Statute, it shall continue the functions of the ICTY and of the ICTR.
The two branches of the Mechanism, one for the ICTY and another for ICTY, will have their seats in The Hague and in Arusha respectively. They will commence functioning on 1 July 2012 (branch for the ICTR) and 1 July 2013 (branch for the ICTY).

The Mechanism will continue the material, territorial, temporal and personal jurisdiction of the ICTY and the ICTR.
It will have the power to prosecute only the persons indicted by the ICTY or the ICTR and cases of contempt.

There will be two Trial Chambers (one for each branch of the Mechanism) and an Appeals Chamber common to both branches.
Like in early stage of the ad hoc Tribunals, there will be one chief Prosecutor for both branches of the Mechanism.
The President and the Registrar will also be common to both branches.

The Draft Rules of Procedure and Evidence of the Mechanism, which shall be based on the ad hoc Tribunals’ Rules, are to be submitted by the Secretary-General no later than 30 June 2011 for consideration and adoption by the judges of the Mechanism.

STL: a former detainee has the right to request access to the documents in the case, but the access can be limited

Yesterday, the Appeals Chamber of the STL upheld the Pre-Trial Judge's order that the former detainee has standing to seize the Tribunal with the request for access to the documents in his criminal file (see previous post on this issue).
The Chamber also found that the Tribunal has jurisdiction over this matter.

The Chamber noted that the application cannot be addressed through the literal application of Rules that relate to accused.
The fact that the Rules provide for the obligatory disclosure of evidence by the Prosecutor to an accused, does not mean the Rules forbid the disclosure of evidence in a situation where there is no indictment and thus no accused, but where the interests of justice otherwise require it.
Rather, this application must be considered in accordance with international standards of human rights and general principles of international criminal law and procedure, and in light of the spirit of the Statute and the Rules

At the same time, the Chamber emphasised that this determination does not entail a ruling on the modalities and limits of the applicant's right of access to a specific set of documents, including the appropriate time frame for exercising any such right.

According to the Chamber, this is a question of merit that the Pre-Trial Judge must decide on the basis of the applicable rules and the submissions of the parties.

In discharging this task, the Pre-Trial Judge "will have to strike a careful balance between the right of the applicant to judicial remedy if his detention was wrongful, on the one hand, and, on the other, the need for the Prosecutor to conduct his investigation efficiently and with the ability to protect the confidentiality of witnesses and evidence."

Apparently, the judge will also have to take into account the protection of UN documents under the Convention on the Privileges and Immunities of the United Nations.

In its letter to the President of the Tribunal of 1 October, the UN noted that "any documents or material of the United Nations International Independent Investigation Commission, and any other United Nations documents and material on the criminal file, are inviolable under the terms of article 11 of the Convention on the Privileges and Immunities of the United Nations.”
Inviolability entails that the documents cannot be disclosed to a third party without the consent of the United Nations.

Lebanon, Decision on Appeal of Pre-Trial Judge's Order Regarding Jurisdiction and Standing, Case No. CH/AC/2010/02, President of the Tribunal, 10 November 2010.

Taylor case: Prosecution shall disclose records of payments to its potential witness

Yesterday, Taylor case, the Trial Chamber ordered the Prosecution to disclose to the Defence records of the payments to a Prosecution potential witness.

The Prosecution described the payments it had made to a person as “recompense for his services as a source” which is not subject to disclosure to the Defence.
However, the Trial Chamber found that the Prosecution payments were not used to buy information from a source, but rather were given to a potential witness for his own benefit.

In particular, the Chamber noted that it was clear from the information provided by the person to the Prosecution that he did not merely provide information pointing the Prosecution to independent evidence. Rather, he went further by providing substantial information (whether true or false) not only corroborating the testimony of other Prosecution witnesses, but also going to material allegations in the trial.
In the Trial Chamber’s view, this shows that the person was a potential witness rather than a source.

The Chamber also asserted that the letter from the former Chief Prosecutor of the SCSL, indicating that he did not intend to lay charges against the person, supports the inference that the Prosecution wanted to ensure his cooperation, including his testimony if required.

Accordingly, the Chamber found that prior to his listing as a Defence witness, the person was for all intents and purposes, a potential Prosecution witness, notwithstanding that he was never listed by the Prosecution as such.

The Chamber further found that the payments made by the Prosecution to this potential witness went beyond that which is reasonably required for the management of a witness and assumed a potential exculpatory character.

The Trial Chamber accordingly held that the records of these payments should be disclosed pursuant to Rule 68.

Taylor, Decision on Public with Confidential Annexes A-D Defence Motion for Disclosure of Exculpatory Information Relating to DCT-032, 20 October 2010

 See also previous post: "Taylor case: the Prosecution shall disclose record of payments made to a Defence witness"

Taylor case: the Prosecution shall disclose record of payments made to a Defence witness

In the Taylor case (SCSL), the Trial Chamber ordered the Prosecution to disclose to the Defence an account of all payments made to or benefits conferred upon a person who was on the Defence witness list.
The Prosecution was also ordered to provide an explanation for those payments.

The Prosecution, according to the Defence, communicated with the person for several years although it ultimately did not call him as a witness in any case before the Special Court.
The Defence maintained that the Prosecution had made numerous payments to the person estimated at $ 30,000 in total.

The Prosecution, whilst not denying that it had made the alleged payments, submitted that it was not under an obligation to disclose material relating to the payments as the person was not called to testify on behalf of the Prosecution.

In this regard, the Chamber found that the Prosecution was under obligation to disclose to the Defence in relation to the person any exculpatory material, regardless of whether or not the latter was called by the Prosecution to testify.

The Chamber further noted that the payments have not been made by the Witness and Victims Service of the SCSL and appear to be beyond that which is reasonably required for the management of witnesses or victims.
Accordingly the Chamber held that they should have been disclosed by the Prosecution as evidence which may affect the credibility of the Prosecution evidence.

Taylor, Decision on Defence Motion for Disclosure of Statement and Prosecution Payments Made to DCT-097, Case No. SCSL-03-1-T, T. Ch., 23 September 2010.

 See also "Taylor case: Prosecution shall disclose records of payments to its potential witness".

STL: a former detainee shall have access to the documents in the case

In March 2010, Mr Jamil El Sayed submitted an application before the President of the Special Tribunal for Lebanon (STL) requesting the “release of evidentiary material related to the crimes of libellous denunciations and arbitrary detention”.
He had been detained by the Lebanese judicial authorities in September 2005 until April 2009, when the case was transferred to the STL. He then remained in custody of the Tribunal for about ten days and later released by the pre-trial judge.

The Tribunal has jurisdiction to rule on the application

Yesterday, the pre-trial judge of the STL held that the Tribunal has jurisdiction to rule on the application.
In the judge’s view, should the Tribunal find itself without jurisdiction to rule on the application, the Tribunal would deprive the applicant of any possibility to have his basic right vindicated by a judge. It would thus exclude the applicant from the right to effective judicial protection.

The applicant has standing

The pre-trial judge also held that the applicant has standing to seize the Tribunal of the issues relating to the deprivation of liberty to which he was subjected.

The right of access to the criminal file

The judge recalled that an accused has the right to have access to the documents in his own criminal file.

Accused person

Although the person in this case was not formally indicted, the judge referred to the ECtHR jurisprudence according to which the concept of the indictment is to be interpreted with a certain amount of flexibility and should not be understood in its formal sense, but as meaning “’the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence’.
The judge emphasised that, according to that jurisprudence, this definition also corresponds to the test whether the situation of the suspect has been substantially affected.

Further, according to the judge, the rights of defence continue to exist even if the person who has been the subject of a criminal investigation is no longer formally accused or has been discharged.
The judge opined that the same is true of the right of access to the criminal file, which does not cease to exist upon release of the individual.
The basic right to be able, if appropriate, to obtain compensation for prejudice suffered by way of an unlawful detention must have as a consequence the right of access to the documents in the case file. Otherwise it would not be possible to prove the unlawful nature of the detention.

The right of access is not absolute

However, the judge recalled that the right of access to the criminal file is not an absolute. This right can be subject to limitations.
In particular, it can be limited in cases where it might compromise an ongoing or future investigation, undermine fundamental interests, such as the physical well-being of persons concerned by those documents, or affect national or international security. These limitations can also stem from difficulties inherent to the conduct of terrorist investigations.
The judge noted that in some cases, in order to resolve these difficulties, it was accepted that this right was respected even if access to the file was limited to the counsel of the accused alone.
In some instances it is necessary for third parties to go through competent national authorities in order to make requests for access to documents.

Accordingly, the pre-trial Judge invited the Prosecutor to inform him, in particular, whether the above limitations or restrictions apply to the case and what form should access to the file take.

Lebanon, Order Relating to the Jurisdiction of the Tribunal to Rule on the Application by Mr El Sayed Dated 17 March 2010 and whether Mr El Sayed has Standing before the Tribunal, Pre-Trial Judge, Case No. CH/PTJ/2010/005, 17 September 2010

See also "STL: a former detainee has the right to request access to the documents in the case, but the access can be limited".

Tribunal on Piracy: options to consider

In its resolution of 27 April 2010, the Security Council requested the UN Secretary-General to present a report on possible options to further the aim of prosecuting and imprisoning persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia.
Last week the Report of the Secretary General was made public. In its Report the Secretary-General identified following seven options for the Security Council to consider (see the Report):

Option 1: The enhancement of United Nations assistance to build capacity of regional States to prosecute and imprison persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia

Option 2: The establishment of a Somali court sitting in the territory of a third State in the region, either with or without United Nations participation

Option 3: The establishment of a special chamber within the national jurisdiction of a State or States in the region, without United Nations participation

Option 4: The establishment of a special chamber within the national jurisdiction of a State or States in the region, with United Nations participation

Option 5: The establishment of a regional tribunal on the basis of a multilateral agreement among regional States, with United Nations participation

Option 6: The establishment of an international tribunal on the basis of an agreement between a State in the region and the United Nations

Option 7: The establishment of an international tribunal by Security Council resolution under Chapter VII of the Charter of the United Nations

At the same time, the Contact Group on Piracy off the Coast of Somalia noted that that the crime of piracy is of a different nature and scope to the serious international crimes normally dealt with by international tribunals, and that suspected pirates brought before any such new international tribunal would be unlikely to meet the criterion of being the “most responsible” for the crimes in question, which is a threshold applied by most of the current international tribunals.
There was broad agreement in the Group that it may not be viable to extend the competence of the International Criminal Court to include the crime of piracy, nor to amend the competence of the International Tribunal on the Law of the Sea.

(Annex II to the Report, para. 53)

Those interested in the issues of the current International Tribunals may find it quite informative Annex I to the Report “Existing practice of the United Nations in establishing and participating in United Nations and United Nations assisted tribunals, and the experience of other relevant judicial mechanisms”.

See also previous post on this blog: "International Piracy Tribunal forthcoming?"

SCSL: Prosecution not allowed to cross-examine its witness

The Prosecution in the Taylor case had applied for subpoena for a witness, who declined to communicate with it or to voluntarily testify in the trial. The Chamber granted the motion and noted that the witness’s anticipated testimony related to issues that are relevant to the trial.

Last week, when the subpoenaed witness appeared in the court, the Presiding judge did not allow the Prosecution to cross-examine the witness, noting that it is improper to “impeach one’s own witness”.
In regard to the Prosecution’s remark that the witness was not a Prosecution witness but rather “more of a court witness because of her material relationship with the event”, the Presiding judge stated that the witness was subpoenaed at Prosecution request and the Court regards her as a Prosecution witness.

Taylor, transcript, Case No. SCSL-03-1-T, 5 August 2010, pp. 45513-45514

Indeed, in adversarial system, a witness may be considered as hostile if he is not prepared to speak the truth.

It was observed in the Limaj et al. case (ICTY) that in adversarial system the general position is that a party calling a witness may not discredit that witness. However, in the case of an adverse or hostile witness, the prohibition against discrediting is relaxed.
In that case, the Trial Chamber was persuaded that some Prosecution witnesses were not prepared to speak the truth at the instance of the party who had called the witness. The witnesses were treated as “hostile” and leave was given to the Prosecution to cross-examine them.

Similarly, in some other ICTY cases, such as Brđanin and Popović et al. cases, the Trial Chambers held that, given the Chamber’s permission, a party may to treat its witness as a hostile or an adverse one and in this context, contradict that witness by other evidence.

In the Lubanga case (ICC), the Trial Chamber also allowed the Prosecution to cross-examine its witness since he shown “hostility” towards the Prosecution.

Sierra Leone Tribunal also allowed a witness to testify without having her statement disclosed to the Defence

In the Taylor case, the Defence requested the Prosecution to obtain and disclose to the Defence a statement from Naomi Campbell, a witness who was scheduled to testify.
According to the Defence, “it is only through such disclosure that the accused is informed adequately of the material details of the nature and cause of the charges against him and thus be in a position to adequately prepare his defence and to examine, or have examined, the witnesses against him”.

The Prosecution explained that it did not obtain any statement from the witness, and it has no interview or proofing notes of this witness as Ms. Campbell has declined requests to speak to the Prosecution.
The Prosecution also asserted that it is under no statutory or other obligation to obtain a statement from every witness, particularly in the present circumstances, where the witness is uncooperative and has not agreed to be interviewed.
In its response, the Prosecution referred to the recent decision in the ICTY Stanišić and Simatović case (see previous post “Prosecution has no obligation to take a written statement from a witness for the purpose of disclosure”).

Yesterday, the Trial Chamber dismissed the Defence motion with references to the Stanišić and Simatović decision.

In particular, the Chamber recalled that "the Prosecution is neither able nor obliged to disclose documents that are not in its possession or to which it does not have access, nor is it obliged under Rule 66 to obtain a statement from an uncooperative witness”.

The Chamber also quoted the Stanišić and Simatović in that “the fact that a witness does not have a prior statement does not render a trial unfair or automatically put a party at an unjust disadvantage. A witness may provide evidence which was unforeseen to both parties during his viva voce examination, independent of any previous statements, and [ ... ] it is for the Chamber to determine, on a case by case basis, whether this new information could affect the fairness of the trial proceedings”.

Taylor, Decision on Urgent Defence Motion for Stay of Evidence Pending Disclosure of the Statement of Naomi Campbell, Case No. SCSL-03-1-T, T. Ch., 4 August 2010.

ICTY Trial Chamber ordered investigation into allegations against some Prosecution staff

In the Šešelj case, the accused had filed a motion for contempt alleging pressure or intimidation on the part of the Office of the Prosecutor towards some witnesses. The Prosecution stated that all the allegations were false.

Recently, the Trial Chamber issued a redacted version of its decision on the motion.
The Chamber pointed out that certain witnesses, when testifying before the Chamber, referred to pressure or to attempts to intimidate to which they were subjected by investigators for the Prosecution as well as to irregularities during their preliminary interviews by the Prosecution.

The Chamber held that an amicus curiae ought to investigate the motion for contempt and inform the Chamber whether there exist prima facie sufficient grounds to initiate a proceeding for contempt against certain members of the Prosecution.

Accordingly, the Chamber ordered the Registrar to appoint an amicus curiae to investigate “possible intimidation or pressure, albeit indirect, exerted by certain investigators for the Prosecution” and to investigate “techniques used by these investigators to obtain preliminary written statements from witnesses”.

It is the first time that such an investigation has been ordered in regard to the OTP staff.

Šešelj, Redacted Version of the “Decision in Reconsideration of the Decision of 15 May 2007 on Vojislav Šešelj’s Motion for Contempt against Carla Del Ponte, Hildegard Uertzretzlaff and Daniel Saxon”, Case No. IT-03-67-T, T. Ch., 29 June 2010

Prosecution has no obligation to take a written statement from a witness for the purpose of disclosure

In the Stanišić and Simatović case, the Defence requested the Prosecution to obtain written statement from a witness who was scheduled to testify and disclose it to the Defence. The Defence argued that it was disadvantaged by the fact that there was no prior statement of the witness.
According to the Defence, it was entitled to the witness’s previous evidence and “to the protection which flows from the disclosure rules, which is a reasonable time to consider that evidence, investigate it, and prepare for cross-examination.”

The Prosecution informed the Defence of the witness’s refusal to cooperate with the Prosecution and for that reason there was no prior ICTY statement.
The Prosecution also argued that there is no requirement that, before a witness can be called as a court witness, that person is compelled to write a statement.

The Trial Chamber accepted the Prosecution arguments and noted that an "uncooperative" witness may give testimony without providing the Prosecution with a prior statement.
The Chamber recalled that the obligation to disclose witness statements extends to all prior statements in the custody or under the control of the Prosecution. However, Rule 66 does not require the Prosecution to produce a statement.

The Chamber emphasized that the Prosecution is neither able nor obliged to disclose documents that are not in its possession, or to which it does not have access.

The Chamber also found that the fact that a witness does not have a prior statement does not render a trial unfair or automatically put a party at an unjust disadvantage.
A witness may provide evidence which was unforeseen to both parties during his viva voce examination, independent of any previous statements, and that it is for the Chamber to determine, on a case by case basis, whether this new information could affect the fairness of the trial proceedings.

Stanišić and Simatović, Reasons for Decision on Postponement of Cross-Examination of the Testimony of Witness Milovanović, Case No. IT-03-69-T, T. Ch., 22 July 2010.