February 4th, 2012 by Benjamin Joyes
Guest Blog by Kathryn Hovington
The positive outcome of the referendum on Croatia’s accession to the European Union on 22 January 2012, which was decided by a two thirds majority in favour, should encourage the rest of the Western Balkan countries in their own EU aspirations. Bosnia and Herzegovina, Serbia and Kosovo (under UN resolution 1244) are currently classified as ‘potential candidates’ for EU membership. According to Human Rights Watch, the prospect of closer relations with the EU, through the Stabilization and Association process, has served as the single most important catalyst for positive change in the Western Balkans region.
Following the result of the Croatian vote in January, the Croatian General Ante Gotovina, who was last year convicted and received a 24-year sentence from the International Criminal Tribunal for the Former Yugoslavia in The Hague, stated that the EU was where Croatia belonged. For Croatia, the transfer to the ICTY of Ante Gotovina was a precondition for EU candidate status; a demonstration of the EU’s clear, firm and consistent position as regards ICTY cooperation.
Indeed, full cooperation with the ICTY, which has tried and continues to try those allegedly responsible for atrocities committed in the Balkan conflicts of the 1990s, has been a precondition of the EU for resuming talks with Serbia. On 3 May 2006, following a negative assessment submitted by the ICTY on the state of co-operation of Serbia and Montenegro and the failure of Serbia to locate, arrest and transfer Ratko Mladić to The Hague, the European Commission decided to call off negotiations. On 26 February 2007, the International Court of Justice ruled that Serbia’s failure to transfer Ratko Mladić to the ICTY amounted to a violation of its obligations under the Convention for the Prevention and Punishment of the Crime of Genocide. The Court also ordered Serbia to transfer to the ICTY individuals indicted for genocide and to cooperate fully with the Tribunal.
However, in May 2011, Serbian President Boris Tadić set Serbia back on the road to EU membership by ordering the arrest of Ratko Mladić. Serbia has now delivered on all 46 ICTY requests for handing over indictees. Commending Serbia for having brought to a fully satisfactory level its cooperation with the ICTY with the arrest and handovers of the last two remaining ICTY indictees, Ratko Mladić and Goran Hadžić, the European Commission in its Opinion on Serbia’s EU membership application, dated 12 October 2011, recommended for Serbia to become a candidate country for EU membership and suggested that the country will be ready to start accession negotiations as soon as further good progress is made in one key area. This area involves further steps being taken to normalise relations with Kosovo in line with the conditions of the Stabilisation and Association Process. Serbia’s achieving EU candidate status is conditional on the understanding that Belgrade re-engages in dialogue with Kosovo and is moving swiftly to the implementation in good faith of agreements. The Government of Serbia has declared European integration to be one of the strategic priorities for the Republic.
According to Article 13 of the European Council’s Conclusions, 9 December 2011, the European Council noted that Serbia has made considerable progress towards fulfilling the political criteria set by the Copenhagen European Council and the Stabilisation and Association Process requirements and that a fully satisfactory level in its co-operation with ICTY was reached. It welcomed that Serbia has re-engaged in the Belgrade-Pristina dialogue and is moving forward with implementation of agreements in good faith. The Council was tasked to decide on granting Serbia candidate status in February 2012 after examining and confirming progress made in implementation in good faith of agreements in dialogue with Pristina. A February 2012 decision is to be confirmed by the March European Council. The timing of these upcoming decisions is significant because President Tadić, the EU’s biggest ally in Belgrade, will face parliamentary elections in May.
In a statement following his meeting with Serbian Foreign Minister Vuk Jeremić, on 24 January 2012, Commissioner Štefan Füle stated that “If sufficient progress is achieved in time, it would be possible for the forthcoming Council to confirm positively a decision to grant candidate status to Serbia”.
Should Serbia gain candidate status in March 2012, it will send an optimistic signal to the other countries. Montenegro is set to begin talks on accession in June and Bosnia’s new government may apply for candidate status later this year.
For more information:
http://europa.eu/rapid/pressReleasesAction.do?reference=DOC/11/8&type=HTML
http://ec.europa.eu/enlargement/pdf/key_documents/2011/package/sr_analytical_rapport_2011_en.pdf
February 3rd, 2012 by Benjamin Joyes
Post by Toby Cadman
On 31 January 2012 I was invited to speak at the European Parliament in the South Asia Committee. The purpose of the meeting was to discuss developments at the International Crimes Tribunal, Bangladesh in advance of a parliamentary delegation visiting Bangladesh in mid-February 2012. The other speakers included Dr Peter Custers, President of International Committee for Democracy in Bangladesh, Bangladesh journalist Shahriar Kabir, Tureen Afroz of the Dhaka Law Faculty and member of the Bangladesh Supreme Court Bar Association, Zead al-Malum, Prosecutor at the Bang- ladesh International Crimes Tribunal, Bangladesh Ambassador to the European Union Ismat Jahan, and Dr. Genoveva Hernandez Uriz, Bangladesh Desk Officer at the European External Action Serv- ice.
For the full piece please click here: ICT Response
http://tobycadman.com/index/view/european_parliament_committee_on_south_east_asia_ict_bangladesh
February 3rd, 2012 by Steven Kay QC
In a statement the Special Tribunal for Lebanon (STL) said its trial chamber had taken the step after examining documents from the STL prosecutor and from Lebanese prosecutors which outline the efforts of Lebanese authorities to apprehend the accused and inform them about the proceedings.
Salim Jamil Ayyash, Mustafa Amine Badreddine, Hussein Hassan Oneissi and Assad Hassan Sabra, all Lebanese nationals, have been indicted over the massive car bombing in central Beirut that killed Mr. Hariri and 22 others on 14 February 2005.
The indictment charges all four men with conspiracy to commit a terrorist act. Mr. Ayyash and Mr. Badreddine are also charged with committing a terrorist act by means of an explosive device, intentional homicide with premeditation, and attempted intentional homicide.
Mr. Oneissi and Mr. Sabra also face charges of being accomplices in the crimes. All charges in the indictment are crimes under Lebanese criminal law.
In its statement today the STL noted the multiple attempts by Lebanese authorities to find the accused men at their last known residences, places of employment and other locations.
The court said the trial chamber had also considered “the fact that the indictment and the identities of the accused received massive publicity in Lebanon.”
The trial chamber therefore concluded that all reasonable efforts had been taken to ensure that the accused appeared in court and were notified of the charges they face.
The STL underlined that prosecuting accused persons in their absence was “a measure of last resort to ensure that the pursuit of justice is not paralyzed by those who choose to abscond.”
Today’s statement did not say when the trial will begin, and noted that several necessary steps must occur before the trial can start.
Those steps include the assignment of counsel to the accused, the disclosure by prosecutors to defence lawyers of any supporting materials for the indictment, and allowing defence lawyers to interview witnesses, visit crime scenes, collect evidence and pursue other inquiries as part of their case.
The tribunal is an independent court created at the request of the Lebanese Government, with a mandate issued by the Security Council. It is based in The Hague in the Netherlands.
http://www.un.org/apps/news/story.asp?NewsID=41113&Cr=lebanon&Cr1=
February 3rd, 2012 by Elli Goetz
Today the Supreme Court Chamber of the ECCC imposed a life sentence on KAING Guek Eav alias Duch. This is the maximum sentence available at the ECCC for crimes against humanity and grave breaches.
On 26 July 2010, the Trial Chamber had sentenced Duch to 35 years imprisonment. With this judgment the Supreme Court Chamber not only quased the sentence imposed by the Trial Chamber but also – by supermajority – “quashed the Trial Chamber’s decision to grant remedy for the violation of KAING Guek Eavs’s rights occasioned by his illegial detention by the Cambodian Military Court between 10 May 1999 and 30 July 2007.”
For further information:
http://www.eccc.gov.kh/en/articles/kaing-guek-eav-alias-duch-sentenced-life-imprisonment-supreme-court-chamber-0
February 2nd, 2012 by Benjamin Joyes
Steven Kay QC has been asked to replace Jaques Verges in the debate at Brunei Gallery Lecture Theatre, SOAS, London
3 February 2012 6:30 – 8.00 PM
International Justice: Between Impunity and Show Trials
Participants are Martti Koskenniemi, Steven Kay QC, Stephen Hopgood, Robert Murtfield and Polina Levina
In a question time format the conduct of international criminal trials will be debated from Nuremburg to the ICC including the recently confirmed cases involving Kenya.
February 2nd, 2012 by Deirdre Montgomery
The Trial Chamber of the Special Tribunal for Lebanon has issued a Decision to hold the trial of Ayassh et al in absentia.
Click here for the Decision.
Click here for the Media Advisory on what the upcoming steps will be to prepare for trial.
February 1st, 2012 by Benjamin Joyes
Steven Kay QC is taking part with Richard Harvey in the Garden Court – SOAS International Justice Workshop on Saturday 4 February 2012.
The topics for discussion on the day are:
- Shifting Burdens of Proof (JCE & Command responsibility
- Right to be informed of charges/pleading standards
- The impact of victim participation on trial fairness at the ICC
- Adequacy of investigations by both Prosecutions and Defence
- Excessive reliance on NGO reports
- Amnesty and the International Criminal Court
- Political interference with the International Criminal Process (particular reference to both Cambodia and the ICC)
- Inadequate funding and facilities to guarantee fair trial rights of the Accused
- The Defence Function as the “unwelcome stepchild” of the International Criminal Tribunals
- The ICC – Expectations vs. Reality
- Liturgy or Rites? Defence Rights in International Courts
- The burden is on the Defence – the Prosecutor’s charter?
- The move from oral evidence to written evidence in the proof of cases
- Neither Fish nor Fowl the constant tension between adversarial and inquisitorial systems in the international court.
January 31st, 2012 by Elli Goetz
Today in the afternoon the Security Council stated to debate the situation in Syria “where thousands of people have been killed over the past 10 months in a Government crackdown against a popular uprising.”
First, the Secretary-General of the League of Arab States – Nabil El Araby – provided a briefing on the work of human rights monitors inside Syria by the League. Following this briefing, senior representatives of Member States are currently addressing the 15-member body.
Follow the livestream here:
http://www.unmultimedia.org/tv/webcast/index.html
Further information:
http://www.un.org/apps/news/story.asp?NewsID=41090&Cr=Syria&Cr1=
January 29th, 2012 by Elli Goetz
The ICTR Prosecutor, Hassan Bubacar Jallow, has handed over the case against Jean Bosco Uwinkindi to the Prosecutor-General of the Republic of Rwanda. The handover of the case material followed an Appeals Chamber decision from 18 December 2011. In this decision the Appeals Chamber had dismissed the appeal filed by Uwinkindi against a decision issued by the Referral Chamber “to refer his case to the Rwandan national court system under Rule 11 bis.
Uwikindi was arrested in June 2010 in Uganda and was charged with crimes of genocide, conspiracy to commit genocide and extermination as a crime against humanity commited in Kigal Rural Prefecture between April and July 1994.
This referral marked the first time that the ICTR transferred “a case to Rwanda for trial in the High Court, prior to sending the detainee.” Prosecutor Jallow emphasized that “the process had taken many years, but with perseverance, patience and commitment and the support of International Donors, who contributed to the Capacity Building of the Rwandan Justice System, a major achievement has been registered.” According to the ICTR Prosecutor this constitutes “an important aspect in fighting impunity in Rwanda and in the region and a major component in the Tribunal’s Completion Strategy.”
For further information:
http://www.unictr.org/tabid/155/Default.aspx?id=1249
January 23rd, 2012 by Deirdre Montgomery
The Confirmation of Charges Hearing in the Kenya Cases at the ICC has concluded. The charges have been confirmed against Uhuru Kenyatta, Francis Kirimi Muthaura, William Ruto and Joshua Arap Sang. Their cases will now proceed to the trial phase of proceedings. The charges were not confirmed against Mohammed Hussein Ali and Henry Kosgey. They are no longer suspects before the ICC.
http://www.icc-cpi.int/iccdocs/PIDS/publications/PresentationKenyaCases.pdf
http://www.bbc.co.uk/news/world-africa-16675268
January 23rd, 2012 by Steven Kay QC
On 10 January 2012, Pre-Trial Chamber (PTC) I granted Libya an extension on the Court’s request for observations regarding the arrest and detention of Saif Al-Islam Gaddafi. Libya now has until 23 January to file its observations. Saif Al-Islam Gaddafi is wanted by the ICC for crimes against humanity allegedly committed in Libya as of 15 February 2011.
Click here to see the Court’s decision.
January 22nd, 2012 by Elli Goetz
In the case Prosecutor v. Abdallah Banda Abakaer Nourain & Saleh Mohammed Jerbo Jamus, the Defence has requested a temporal stay of the proceedings “until such time as the minimum guarantees of a fair trial can be met, the Prosecutor is able to fully discharge his Article 54 duties, and this Trial Chamber is able to determine the truth.”
This extraordinary remedy was sought by the Defence because of the prevailing circumstances – impossibility of investigations in sudan, problems and dangers of interviewing witnesses in third countries, deaths of witnesses and inability to access documents – which “make it impossible for Messrs. Banda and Jerbo to present an effective defence and preclude the Trial Chamber from adequately fulfilling its oblligation to determine the truth.”
The Defence submits, that multiple, however, fruitless efforts were made to secure witness testimony as well as evidence central to the Defence case. However, because of the existing circumstances, the Defence stated that “no other option remains which will safeguard the fair trial rights of Messrs. Banda and Jerbo.”
For further information:
http://www.icc-cpi.int/iccdocs/doc/doc1296602.pdf
January 22nd, 2012 by Elli Goetz
Radovan Stankovic was arrested today in BiH. Indicted by the ICTY for crimes against humanity and war crimes in BiH, Stankovic – member of the Serb paramilitary forces – was transferred to BiH in 2005 pursuant to Rule 11 bis of the ICTY Rules of Procedure and Evidence. He was subsequently sentenced to a 20 year-sentence by the BiH State Court but escaped from the prison in May 2007.
The ICTY Prosecutor welcomed today’s arrested stating “Today’s apprehension of Stanković is significant for the victims of the grave crimes he has been convicted for. I hope that this arrest reflects an increased commitment of the authorities of Bosnia and Herzegovina to support the process of bringing to justice those responsible for the grave crimes committed on their territory in the early 1990s.”
For further information:
http://www.icty.org/sid/10892
January 22nd, 2012 by Steven Kay QC
The right-wing pressure group Manos Limpias (‘Clean Hands’), which brought a complaint against controversial Spanish judge Baltasar Garzón for ordering an investigation into crimes committed during the Franco dictatorship, argues the judge exceeded his power and that his trial next week (24 January) in Madrid is justified.
Read more …> http://www.rnw.nl/international-justice/article/interview-garz%C3%B3n-a-%E2%80%9Ccancer%E2%80%9D-spanish-justice
January 22nd, 2012 by Steven Kay QC
Five men jailed for supporting Sri Lanka’s Tamil Tigers (LTTE) last October began their appeal against conviction Monday in The Hague. The case marks the first time an EU member state has considered the question of whether the Tamil Tigers is a terrorist organisation. It could result in a change in EU law.
Read more …> http://www.rnw.nl/international-justice/article/dutch-tamil-tiger-five-appeal
January 21st, 2012 by Deirdre Montgomery
The Confirmation of Charges Decision in both Kenya Cases at the ICC will be issued this Monday, 23 January. The hearing can be followed live on the ICC website. Follow the link to the Press Release below for further informtation:
http://www.icc-cpi.int/NR/exeres/8262D3FC-D5EE-4F1F-A7FC-3D877897AC72.htm
January 20th, 2012 by Steven Kay QC
Post by Ben Joyes
On 6 February 2012, the UN Interregional Crime and Justice Research Institute (UNICRI) and the Association of Defence Counsel before the ICTY (ADC-ICTY) will launch its “Manual on International and Criminal Defence” in The Hague.
A number of ICLB members were involved in the production of the manual, including, Colleen Rohan, who coordinated and edited the publication, and Gregor Guy-Smith, Gillian Higgins and Deirdre Montgomery who provided chapter contributions.
The publication provides a comprehensive description of the operating practices of the ICTY, and includes chapters on case theory and defence strategy, defence investigations, examination of witnesses and plea agreements. The manual is unique in that it is the first of its kind to be drafted solely by practitioners with proven experience in the field of international criminal law.
To maximise assistance to practitioners, the manual is accompanied by a DVD containing copies of all documents referred to in the manual as well as other examples of written submissions. It is currently available in English, Bosnian/Croatian/Serbian and Albanian. An electronic version of the English language manual is available at http://wcjp.unicri.it/deliverables/manual.php
The launch will take place at 6pm on 6 February 2012 in the main lobby of the ICTY building, Churchillplein, The Hague. For more information please click on the link below
Launch Poster
January 13th, 2012 by Steven Kay QC
International Crisis Group – Policy Briefing or Legal interference?
Urging Prosecution at ICC Regardless of Legal Merits and Blaming the Defence.
By Steven Kay QC (lead counsel for Uhuru Kenyatta)
The International Crisis Group working out of Nairobi and Brussels has produced a report on the Kenya proceedings just before the ICC Pre-Trial Chamber II is due to return its decision on the confirmation of charges hearing. I can not let it pass without criticism but read it for yourselves.
‘Kenya: Impact of the ICC Proceedings,’ Africa Briefing No. 84, International Crisis Group, 9 January 2012′
This report like many others is disseminated by one of the core supporters of the ICC, the Coalition for the ICC, which distances itself from the documents it distributes, but nevertheless fulfills its task. The ICG worthily declares it is “Working to Prevent Conflict Worldwide” on its banner and its stated aims also declares it seeks to influence governments in its research and opinions. It has offices around the world and an experienced and eminent Board. Plainly a lot of money comes from somewhere to fund this kind of operation, and probably from taxpayers like me around the world. The authors of this report are anonymous, so having read what I have read, I will send a copy of this complaint about the content to Louise Arbour and to the Coalition for the ICC.
Why am I bothering to tell you this? Well, I spotted some dangerous text in this document that made me scrutinize its content further to see whether it is justice and fairness this organization seeks or it has other ends. Not only that, there is a clear misrepresentation of the role of the Defence in the ICC proceedings and I am not prepared to take such defamation lightly.
But first things first, it is confidently stated:
“If the court, as is expected, confirms charges for both cases on the same day, this could be a crucial step to help defuse a rise in ethnic tensions. There are real fears that if charges are dropped for suspects of one ethnicity and confirmed for those of another, ethnic tensions could increase sharply, regardless of the legal merits. The ICC’s decisions will continue to play a pivotal role in Kenya’s political process, especially in the crucial 2012 election.”
I am not sure why there should be expectation of the confirmation of charges, having taken part in the proceedings and observed reaction to the content of the respective cases of the parties at the time, but there is a clear message in this piece that the failure of the charges will be damaging to Kenyan society. Later on in the report this theme is repeated:
“Although this scenario would demonstrate the ICC’s impartiality and independence, it would be viewed as a set- back for efforts to combat impunity and deter political violence in Kenya.”
Therefore, this prosecution is seen as an end in itself to affect the politics of Kenya. I have never believed that prosecutions should take place on such a basis, but that if they do so, Judges have the job to ensure that such wrongful proceedings do not continue and that justice is lawfully done. It might be news to the International Crisis Group, but experience has shown that miscarriages of justice actually fan the fires of conflict. Ask any human rights lawyer who trained in the 1970’s. It is a pity that the authors of the report did not consider the Defence evidence that demonstrated how the matter of the allegations surrounding the electoral violence arose and how the international community walked into a carefully prepared trap. But I am not sure such information suits their purposes. Particularly, as they have another prepared view of Defence counsel expressed thus:
“While the ICC is still popular, the Kenyan public’s approval of its role has been declining, due to deft media manipulation by the suspects and their lawyers. In order to counter misrepresentations of the court’s decisions, the court and its supporters, including civil society and other friends, should intensify public information and outreach efforts to explain its mandate, workings and process.”
Without any factual support this rather outrageous allegation has been made against Defence counsel. I demand you at the ICG produce your evidence to support this assertion. I will even publish it on the ICLB blog for you. It is outrageous because we have hardly spoken to or dealt with the media as it is well known by all journalists is my practice. In fact Luis Moreno Ocampo as Chief Prosecutor for the ICC has regularly conducted media exercises before, during and after these proceedings that have been criticized as exercises in manipulation to the PTC by the Defence! These complaints were not regarded as trivial by the Judges but the Court said it could do nothing but repeat its request for such practices not to occur. In fact the expectations about the strength of the Prosecution case, which turned out to be otherwise are referred to in the ICG report. Any comment there International Crisis Group or does that not suit your agenda? Does that not fan the fires of conflict in which you are so worthily concerned?
The report goes further to allege:
“During the hearings on the charges, the suspect’s lawyers, particularly Kenyatta’s team, argued that the prosecution built its cases on civil society reports and newspaper clippings that do not constitute legal proof.(91) Feeling vindicated, the former suspects would undoubtedly repeat on the campaign trail their claims of having been targeted by their political enemies, which would not be promising for peaceful elections.”
Well, this may be news to you ICG, but if you just base your opinions on recycled reports and not evidence, some day you will come a cropper! You see it is very easy to point fingers and allege. But if you run a justice system you need more, because if you make allegations without evidence, you tend to find that inaccuracy creeps in and what is more it becomes easy to make unfounded allegations. The history of criminal justice has taught us to tread carefully and look for the evidence, otherwise you fill prisons with innocent people. Then you really do have a conflict on your hands….By the way the footnote (91) does not support the proposition here either! Neither did the defence ever contest these hearings on the basis that the Prosecution did not have a “watertight case” as you have stated. Merely that there were not “substantial grounds to believe” which is the legal test to be applied at this stage.
The International Crisis Group seems much obsessed with the outcome of the elections.
I wonder why? Who has a stake in this to be so obsessed? Thoughts anyone….
January 12th, 2012 by Steven Kay QC
Post by Ben Joyes
Please see below for the BPICB’s annual conference programme. The 2012 conference will take place on January 27 in the Centre d’Estudis Jurídics de la Generalitat de Cataluña (Ausias March, 40), Barcelona.
Programme
January 12th, 2012 by Steven Kay QC
Former Jamaat Islami chief, 89 year-old Professor Ghulam Azam, has been denied bail by the Special Crimes Tribunal, Bangladesh.
See below for the full article:
Prof Ghulam Azam Article