The International Criminal Law Bureau : Blog

Call for Papers: Irish Jurisprudence Society Symposium at UCC, April 2010

The Irish Jurisprudence Society in conjunction with the Law Faculty at UCC will host a Symposium on Jurisprudence and Legal Theory at University College Cork on 17th April 2010.

Papers may be presented on any area of jurisprudence or legal theory; there will be up to 30 minutes for presentation of each paper and ample time for discussion. Those interested in presenting a paper should please send a provisional title and a short (300-400 word) abstract either to Dr Maria Cahill, UCC(maria.cahill@ucc.ie) or to the IJS email address (irishjurisprudencesociety@gmail.com) by 12th March 2010. Any enquiries can also be addressed to same.

For more details on the Irish Jurisprudence Society see here – http://www.irjursoc.org/

ICC Pre-Trial Chamber I declines to confirm the charges against Abu Garda

Yesterday February 8 2010, Pre-Trial Chamber I of the International Criminal Court issued a decision declining to confirm the charges in the case of The Prosecutor v. Bahar Idriss Abu Garda.  Abu Garda was charged with three war crimes, violence to life, intentionally directing attacks against personnel, installations, material, units and vehicles involved in a peacekeeping mission, and pillaging, allegedly committed during an attack carried out on 29 September, 2007, against the African Union Mission in Sudan (“AMIS”), a peace-keeping mission stationed at the Haskanita Military Group Site (“MGS Haskanita”), in the locality of Umm Kadada, North Darfur.

The Chamber was not satisfied that there was sufficient evidence to establish substantial grounds to believe that Bahar Idriss Abu Garda could be held criminally responsible either as a direct or as an indirect co-perpetrator for the commission of the crimes.

On 18 May, 2009, Bahar Idriss Abu Garda appeared for the first time before the Court, in compliance with a summons issued under seal by Pre-Trial Chamber I on 7 May, and unsealed on 17 May. The confirmation of charges hearing in the case of The Prosecutor v. Bahar Idriss Abu Garda was held from 19 to 30 October, 2009.

The decision is available here - http://www.icc-cpi.int/Menus/Go?id=586c0b9f-685c-4a05-b0ef-702a23a4b6f9&lan=en-GB

Image courtesy of the BBC

Interesting Blog on the Bashir Arrest Warrant Decision at the ICC

Prof. William Schabas blogged last week about the Appeals Chamber decision on the arrest warrant application in the case of President Al-Bashir of Sudan. He notes  and discusses that on the appeal of the Prosecutor, it was held that the Pre-Trial Chamber imposed too rigorous a standard and the case has been returned for it to rule again. He states : This is all much ado about nothing. Given the close overlap between genocide and crimes against humanity, even with the existing arrest warrant the Prosecutor would be unconstrained in producing relevant evidence that might lead to a conclusion that genocide was taking place.”

Also interesting is the analysis of the work of the Appeals Chamber at the ICC over the last year.

To read the blog see here :http://humanrightsdoctorate.blogspot.com/2010/02/nice-work-if-you-can-get-it.html

Seselj to Face New Contempt of Court Charges at the ICTY

Last week a new order, signed by Judge O Gon Kwon, was made against Vojislav Seselj for contempt of court, he is accused of disclosing information that may reveal the identity of 11 protected prosecution witnesses in a book he authored. The title of the book was not disclosed. In July 2009, Seselj was found guilty of contempt of court for disclosing the identity and testimony of three protected witnesses. Seselj was sentenced to 15 months in prison.

The prosecution asked for the new contempt of court proceedings in a confidential motion filed in January 2009. The Trial Chamber rejected the motion, noting that ‘while it had sufficient grounds to believe that confidential information was disclosed’ in the book, the Chamber was ‘not persuaded that disclosure attained such a level of gravity’ to instigate proceedings against Seselj. The prosecution appealed against the decision. In December 2009, the Appeals Chamber granted the appeal, ordering the Special Chamber to file a new indictment against Seselj.

The Special Chamber has already issued an order to the Tribunal’s Registrar to appoint counsel amicus curiae to represent the prosecution. Seselj will enter his plea on the counts in the indictment at a later date.

ICTR Newsletter

Covering case updates and developments for December 2009 – January 2010: ICTR Newsletter -Dec09-Jan10

Šljivančanin Files Application for Review of the ICTY’s Controversial Appeals Judgment

Guest Post by Alex Fielding:

Novak Lukic, counsel for Veselin Šljivančanin, held a press conference today in The Hague to announce that he and co-counsel Stephane Bourgon had filed an “Application on Behalf of Veselin Sljivancanin for Review of the Appeals Chamber Judgment of 5 May 2009”.  As reported by the ICLB blog here, this application follows Šljivančanin’s Motion for Reconsideration, which was denied on 8 December 2009.

Šljivančanin was acquitted at trial on the count of aiding and abetting by omission the murder of prisoners at Ovcara in 1991.  Without hearing new evidence, the Appeals Chamber reversed this acquittal and increased his sentence from 5 to 17 years.

Key to the Appeals Chamber Judgment (Judges Pocar and Vaz dissenting) was the inference that on 20 November 1991, Sljivancanin was told by his commander Mile Mrksic of an order to withdraw JNA (Yugoslav People’s Army) troops protecting prisoners of war at Ovčara.

The basis of the Application for Review filed today is a new fact brought forward by Miodrag Panic, Šljivančanin’s Unit Commander.  If he is given the opportunity, Panic will testify that he was present during the conversation between Mrksic and Sljivancanin on 20 November 1991, and that Mrksic did not tell Šljivančanin about any order to withdraw the JNA protection for the prisoners of war at Ovčara.

While Panic did testify for the Defence, the Application for Review states that his knowledge of whether Mrksic told Šljivančanin of the order was not at issue since the Prosecution’s case was that Šljivančanin was involved in the transmission of the withdrawal order, not the knowledge of its existence.   As such, the Prosecution, Defence and Trial Chamber did not question Panic on that particular issue.  The Trial Judgment made no findings as to whether Panic heard the conversation in question, and rejected the Prosecution’s argument that Šljivančanin was involved in the transmission of the withdrawal order.

According to the Barayagwiza Review Decision of the ICTR Appeals Chamber, a review application must satisfy four conditions:

1. There must be a new fact;
2. This new fact must not have been known by the moving party at the time of the original proceedings;
3. The lack of discovery of the new fact must not have been through the lack of due diligence on the part of the moving party; and
4. It must be shown that the new fact could have been a decisive factor in reaching the original decision.

Notably, the Barayagwiza Review Decision granted the Prosecutor’s Application for Review even though the facts “could have been discovered”, thus failing the due diligence condition,  The Appeals Chamber cited the decisive nature of the new fact and the “possible miscarriage of justice”, stating at para. 69 that “[t]o reject the facts presented by the Prosecutor, in the light of their impact on the Decision, would indeed be to close ones eyes to reality.”

Lukic vowed to continue to fight for Šljivančanin’s fundamental rights at the local, national and international level, not ruling out an eventual appeal to the European Court of Human Rights in Strasbourg.  If so, the ICTY Appeals Chamber would, for the first time, face judicial scrutiny of one of its decisions.  A decision, in this case, that effectively entered a conviction on first instance, without recourse to appeal.

The Application for Review will be attached as it becomes available, and the ICTY Appeal Chamber decision can be found here.

International Criminal Justice – An Accused’s Perspective

Sefer Halilovic, a former General and first Commander of the Army of Bosnia and Herzegovina, was one of the first high-ranking officers to be acquitted by the International Criminal Tribunal for the Former Yugoslavia.

He has now published a memoir of his time and experience before the Yugoslav Tribunal (Sefer Halilovic, “Nije Kriv” – “Not Guilty”).

His counsel, Peter Morrissey and ICLB member Guenael Mettraux have each contributed a foreword to this book, the first of its kind by a former indictee of the ICTY. Mettraux’s Foreword is attached below.

Mettraux Foreword – Halilovic Book

Remembering Sir Ian Brownlie

The Times Online posted their obituary of Sir Ian Brownlie on 18 January. Sir Brownlie died in a tragic car accident in Egypt on 3 January. He made a phenomenal impact on the legal world as one of its most distinguished and renowned practitioners in the fields of international law and human rights. Just to mention a few of the cases he was involved with; he represented Nicaragua against the US over the latter’s backing of the Contra rebels, defended Yugoslavia when it challenged the legality of Nato’s intervention and, for Amnesty International, challenged the claim to immunity from extradition by the Chilean general and former dictator Augusto Pinochet.

I worked with him when we were advising an Arab State on an important international issue a few years ago. He had a great grasp of the practical problems which needed to be dealt with in the carrying out of a highly sensitive international agreement. It was clear he was not only an academic lawyer who was outstandingly brilliant, but also a practising lawyer of similar quality. In fact he insisted on our matter in never being referred to as “Professor” but wanted to be a plain “Mr.” as all barristers are. When one of my distinguished colleagues working with us made the further error of also calling him “Dr.” his immediate response was “that does not make me feel better!”.

All our thoughts at the ICLB  are with his wife and family at this very difficult time.

http://www.timesonline.co.uk/tol/comment/obituaries/article6992845.ece

Human Rights Watch Publish Digest of the Law of the International Criminal Tribunal for Rwanda

On Friday 15 January, Human Rights Watch (HRW) published a 500-page digest entitled “Genocide, War Crimes and Crimes Against Humanity: A Digest of the Case Law of the International Criminal Tribunal for Rwanda”.

The important judicial decisions of the International Criminal Tribunal for Rwanda (ICTR) have enriched the law on genocide, war crimes, and crimes against humanity, Human Rights Watch stated as it released the comprehensive digest with the judgments of the tribunal presented by topic.

The digest is oriented to practitioners, nongovernmental organizations, and academics working in the field of human rights.  It is available for download online and for purchase in print.

Dutch MP Geert Wilders Trial for Hate Crimes Commences Today

The Trial of Dutch right-wing  MP Geert Wilders on hate crime charges begins today in Amsterdam in a  case that will test the limits of free speech in the Netherlands. Mr Wilders already faces five counts of religious insult and anti-Muslim incitement. The charges stem from his 2008 short film, Fitna, which offended many Muslims by juxtaposing Koranic verses with images of terrorism by Islamic radicals. The charges have also been extended to include inciting hatred against Moroccans and non-western immigrants based on his statement that “the borders will close that same day”, referring to his plans if he were to become prime minister.

Originally the public prosecutor’s office  decided that his comments  should be seen as a contribution to the debate on Islam in Dutch society and no criminal offence had been committed. However,  Amsterdam’s appeals court ordered that Mr Wilders be put on trial.

Mr Wilders’ lawyer, Bram Moszkowicz, said he had petitioned judges to at least drop the charge of insulting Muslims as a group, which he said had little chance of winning a conviction. Moszkowicz cited a 2009 Supreme Court ruling that found insulting a religion is not the same as insulting followers of that religion, and not punishable under hate-speech laws.

If convicted, Mr Wilders faces a maximum sentence of two years in prison, though a fine of up to €18,500 is more likely.

Book Launch – Future Perspectives on International Criminal Justice

Next Monday 25 January, from 19.00 until 21.00, the Grotius Centre for International Legal Studies (Campus Den Haag) is hosting a book launch for  “Future Perspectives on International Criminal Justice” edited by Carsten Stahn and Larissa van den Herik.

The programme is as follows:

19:00 Opening
Introduction of the book by Prof. Kai Ambos, Georg-August Universität Gottingen, Germany.

Commentary by Philip van Tongeren, Director Asser Press

Remarks by Dr.Carsten Sthan & Dr.Larissa van den Herik, Leiden University
Questions & Discussion

20:15 Drinks

Attendance is free and registration is not required.

Location: Grotius Centre for International Legal Studies, Lange Voohout 44, The Hague

Haiti Humanitarian Relief Effort

International relief agencies have renewed their appeals for donations to help victims of the Haiti earthquake as first consignments of aid reach the devastated country. The Haitian Red Cross said it believed 45,000 to 50,000 people had died and 3 million more, one third of Haiti’s population, were hurt or left homeless by the 7.0 magnitude quake that hit its impoverished capital on Tuesday.

For those of you who wish to donate here are just a few of the many aid organisations calling for donations at this time:

The United Nations World Food Programme – wfp.org/donate/haiti

Unicef - tinyurl.com/yhq5ers

Médecins Sans Frontières – http://www.msf.ie/?id=397

The International Committee for the Red Cross – http://www.icrc.org/web/eng/siteeng0.nsf/html/haiti

The Clinton Foundation – http://www.clintonfoundation.org/haitiearthquake/

Additionally for those who may be interested in donating their time in employment in the relief effort see the following website for a list of both short and long term jobs in Haiti:

http://unjobs.org/duty_stations/haiti

Call for Papers for the 4th Biennial European Society of International Law Conference

ECtHR Judgment on Human Trafficking

As reported by Antonine Buyse here and by Aoife Nolan here, last week the European Court of Human Rights passed a decisive judgment on the issue of human trafficking in the case of Rantsev v. Cyprus and Russia.

This case concerned the death of Oxana Rantseva and was brought by her father. Oxana moved from Russia on 5 March 2001. On 13 February 2001, X.A., the owner of a cabaret in Limassol, had applied for an “artiste” visa and work permit for Ms Rantseva to allow her to work as an artiste in his cabaret It was widely known that these ‘artistes’ were in practice mostly working as prostitutes. Indeed, the Court noted that  in a 2008  US State Department report on trafficking they state that:

“Cyprus is a destination country for a large number of women trafficked from the Philippines, Russia, Moldova, Hungary, Ukraine, Greece, Vietnam, Uzbekistan, and the Dominican Republic for the purpose of commercial sexual exploitation … Most victims of trafficking are fraudulently recruited to Cyprus on three-month ‘artiste’ work permits to work in the cabaret industry or on tourist visas to work in massage parlors disguised as private apartments.”

Within a few weeks Ms Rantseva left the place where she worked, but was traced by her employer who brought her to the police with the aim of having her detained and extradited, so that he could employ someone else. The police noted that she was not illegally staying in Cyprus, but had a work permit and made her go back with her employer. That same night, she tried to escape from the apartment where her employer was keeping her and in doing so fell of a balcony and died. In spite of the mysterious circumstances of her death, the context of possible human trafficking was never looked into by the authorities. The Court found a violation of Article 2 of the ECHR on the part of the Cypriot authorities for failure to conduct a proper investigation into her death.

The Court found, unanimously, that trafficking in human beings, although not epxlicitly mentioned in the ECHR, fell within the scope of Article 4 (prohibition of slavery, servitude and forced labour). Buyse notes that this Article of the Convention is rarely invoked and there is only one earlier Court judgment in the context of human trafficking: the case of Siliadin v. France (Appl.no. 73316/01) of 2005.

The Court focused on the positive obligations on States to prevent trafficking and protect victims and the Court had regard to the many international instruments on human trafficking as well as slavery. Mr Rantseva contended that the Cypriot authorities were under an obligation to adopt laws to combat trafficking and to establish and strengthen policies and programmes to combat trafficking. He pointed to the reports of the Council of Europe’s Commissioner on Human Rights  which he said demonstrated that there had been a deterioration in the situation of young foreign women moving to Cyprus to work as cabaret artistes. He concluded that the obligations incumbent on Cyprus to combat trafficking had not been met. In particular, the applicant pointed out that the Cypriot authorities were unable to explain why they had handed Ms Rantseva over to her former employer at the police station instead of releasing her. He contended that in so doing, the Cypriot authorities had failed to take measures to protect his daughter from trafficking.

Cyprus  conceded that there were positive obligations on the State which required the penalisation and effective prosecution of any act aimed at maintaining a person in a situation of slavery, servitude or forced or compulsory labour. However, they argued by analogy with Articles 2 and 3 that positive obligations only arose where the authorities knew or ought to have known of a real and immediate risk that an identified individual was being held in such a situation.

The Court found that Cyprus had violated Article 4 in mutiple respects, including the obligation to operate an effective administrative framework to prevent trafficking in general and the obligation to take protective measures in the case of Ms Rantseva in particular.

Russia had violated Article 4 ECHR by failing to investigate the alleged trafficking and its potential start in Russia itself, once the Russian authorities had become aware of Ms. Rantseva’s case.

As Aoife Nolan notes the Court  fell short, however, of defining trafficking as either ’slavery’, ’servitude’ or ‘forced labour’ stating that:

“There can be no doubt that trafficking threatens the human dignity and fundamental freedoms of its victims and cannot be considered compatible with a democratic society and the values expounded in the Convention. In view of its obligation to interpret the Convention in light of present-day conditions, the Court considers it unnecessary to identify whether the treatment about which the applicant complains constitutes “slavery”, “servitude” or “forced and compulsory labour”. Instead, the Court concludes that trafficking itself, within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention, falls within the scope of Article 4 of the Convention.”

The Court also found a violation of Article 5, in that her detention at the police station for one hour and the subsequent transfer and confinement to the apartment of her employer had no legal basis  and amounted to a deprivation of liberty within the meaning of Article 5 of the Convention.

Buyse quite correctly notes that this judgment is a milestone in the combat against human trafficking, but is also significant in that it more generally elucidates positive state obligations in the battle against transational crime.

Seselj trial recommences at the ICTY

The trial of Vojislav Seselj at the ICTY recommenced yesterday after a break of some 11 months. Seselj is charged with crimes against humanity in Croatia, Vojvodina and BH.

The trial commenced on 27 November 2006, in the absence of Seselj who had been on a hunger-strike since 10 November and refused to appear in court. On 1 December 2006, in light of the medical situation of the accused, the Trial Chamber ordered an adjournment of the trial until further notice.

On 6 December 2006, the Trial Chamber ordered the Dutch authorities to provide medical services with the aim of protecting the health and welfare of the accused and to avoid loss of life. On 7 December 2006, Šešelj filed an appeal against the decision on imposed counsel, and on 8 December 2006, the Appeals Chamber issued its decision “nullif[ying] the opening of the proceeding in this case and order[ing] that the trial restart” when Vojislav Šešelj was “fully able to participate in the proceeding as a self-represented accused.”

The trial recommenced on 7 November 2007 with the opening statement by the Prosecution. The presentation of evidence commenced on 11 December 2007. On 11 February 2009, the Trial Chamber issued a majority decision (Judge Antonetti dissenting) granting a motion by the Prosecution to adjourn the proceedings due to the alleged intimidation of a number of their witnesses. On 24 July 2009 Seselj was convicted of contempt of the Tribunal and sentenced to 15 months’ imprisonment for disclosing the name and other personal details of protected witnesses in a book he authored. Seselj admitted he was the author of the book which was published after decisions granting protective measures were made but pleaded not guilty to charges of contempt at his initial appearance on 6 March. The trial took place on 29 May.

Trial Chamber II found that Seselj disclosed confidential information “intentionally, with the knowledge that by doing so, he was violating Trial Chamber orders”.

On 24 November 2009, the Chamber granted a motion by the accused for the review of the adjournment decision and ordered that the trial should resume on 12 January 2010.

Image courtesy of the ICTY.

ICC Trial Competition 2010

On 15-19 February 2010, the International Criminal Law Network (ICLN) is organising the third edition of the International Criminal Court Trial Competition.  The ICC Trial Competition is a moot court with a focus on international criminal law and the procedures of the International Criminal Court. Universities world-wide participate in this competition.  The ICC Trial Competition is unique in allowing students to not only take on the role as prosecutor or the defence counsel, but also the role of the victims’ counsel. The rotation system guarantees that the contestants will experience the different aspects of the functioning of the ICC.

This year, 20 universities from all over the world are participating in the competition. Pace University, in cooperation with the American Society of International Law, is organising qualifying rounds for Canadian, American and Mexican teams. The winner and runner-up of this preliminary round will participate in the finals in The Hague. Professor Göran Sluiter from the University of Amsterdam developed the Trial Competition case. Please refer to the website for more information about the competition: www.icc-trialcompetition.org

Thanks to Francis Camstra.