On July 262010, the Extraordinary Chambers in the Courts of Cambodia (ECCC) found Kaing Guek Eav, better known as Duch, guilty of war crimes and crimes against humanity, making him the first Khmer Rouge defendant to be brought to justice. Duch, who ran the infamous Tuol Sleng prison camp in Phnom Penh, is the only senior Khmer Rouge member, so far, to admit his guilt.
He was sentenced to 35 years in prison, shortened to 19 years because of time already served in prison and in compensation for a period of illegal detention by a military court in Cambodia.
The full judgment is available here. The dissenting opinion of Judge Lavergne is available here.
The verdict has prompted appeals from both the Co-Prosecutors and Duch’s lawyers, and has sparked worldwide opinion, analysis and debate.
Prosecutors seek to increase Duch prison sentence
The Office of the Co-Prosecutors had originally sought a 40-year sentence so it is of no surprise that they filed an appeal on the 16 August 2010. The appeal states that the sentence handed down to Duch is “arbitrary and manifestly inadequate and … outside the range of sentences available to the Trial Chamber..” Prosecutors have identified three grounds for appeal arising from errors of law regarding sentencing discretion, cumulative convictions and enslavement.
Duch’s lawyers also filed an appeal before the Trial chamber on the 24 August 2010 against the single prison sentence of 35 years. The appeal concludes by asking the Supreme Court chamber to set aside the Trial Chamber Judgment in its entirety and to acquit Duch. Click here to read the full appeal.
Ahead of this appeal, Duch had recently appointed a new lawyer, Kang Ritheary to represent him. His decision to dismiss his international co-counsel, Maitre Francois Roux, in early July after sending a letter to ECCC President Nil Nonn, resulted from his lack of confidence in the French lawyer.
Duch’s position has been inconsistent in the past. In March 2009, he accepted responsibility and apologized for this conduct. He admitted guilt and asked Cambodian people to condemn him to the “harshest punishment” for their sorrow and suffering. Yet on the final day of trial, he asked for a full acquittal and release. His Co-Defenders adopted differing stances during the closing arguments, Kar Savuth asking for acquittal and Roux for clemency.
Duch sentencing raises questions of justice (or lack thereof)
As aforementioned, 67 year old Duch now faces just under 19 years in prison. This sentencing has raised responses across a wide spectrum of opinion from human rights groups, court observers and the Cambodian and international media.
Some, particularly victims, condemn what is seen as an inadequate sentence. Others, in particular the Cambodian Centre for Human Rights, congratulate the tribunal on delivery of the verdict and the good example that it sets for domestic courts. The reduction in sentence due to illegal detention in Cambodia is seen as a positive thing and a reminder of the “universality of human rights.” This is particularly significant in a country long mired by human rights abuses in the justice system.
Human Rights Watch have called it “an important step in the search for justice for the victims of the Khmer Rouge” and significant in that there is finally accountability for Duch’s crimes. One senses overall that despite its shortcomings and criticisms, the verdict is symbolic and an important milestone on the road to closure for Cambodia.
To read some of the reactions, click the links below.
Amid the debate swirling around the Duch sentencing, Irish photojournalist and author Nic Dunlop has written an interesting article regarding his discovery of Duch in the Cambodian jungle in 1999. Click here for the article.
Duch verdict to be distributed nationally
On 5th August, the ECCC began production of 5,000 printed copies of the entire Duch judgment and 17,000 copies of the judgment summary in Khmer language. The publications are to be distributed to the public free of charge. Mr. Reach Sambath, Head of Public Affairs at the ECCC stated that the purpose is to ensure that Cambodians understand the genuine importance of the trials and to make sure that the focus is not solely on the length of prison sentence handed down to Duch. The official press release is available here.
The verdict was also formally recognized at a verdict distribution ceremony at Kandal Provincial Court, neighbouring province to Phnom Penh. Mr. Huot Heang, a judge, said that he was optimistic that the printed copies of the verdict would play an important role in re-enforcing the reform of Cambodia’s justice system and would serve as an important reference point for better understanding of the judicial system and improved case handling. The press release is available here.
Case Number Two:
Genocide Indictment sought in Case 002
On the 16 August, the Co-Prosecutors filed their Final Submission in Case 002 with the Co-Investigating Judges. In the submission, they have formally requested the indictment of Nuon Chea, Ieng Sary, Khieu Samphan and Ieng Thirith on charges of genocide, crimes against humanity, war crimes, and violations of the 1956 Cambodian Penal Code. The document is an extensive summary of the relevant facts, 931 pages, in support of the Co-Prosecutors’ allegations, which are legally characterised by both the type of crimes committed and the nature of the Charged Persons’ participation in those crimes.
The statement from Co-Prosecutors is available here.
Co-Investigating Judges release the first decisions regarding admissibility of Civil Parties in Case 002
Co-Investigating Judges Marcel Lemonde and You Bunleng have begun to issue decisions regarding the large volume of Civil Party applications in the second case file facing the ECCC. There have been 3988 applications to join Case 002 as Civil Parties. To be admissible as Civil Parties, victims must show that they have suffered personal injury directly connected to one of the specific facts that the Co-Prosecutors have sent for investigation in their introductory and supplementary submissions.
To see the official press release, please click here.
In a Decision rendered during the court recess, ICTY President Robinson, denied early release to Momčilo Krajišnik. Krajišnik, who has been serving his sentence in the UK since September 2009, would have been eligible for release there on 2 April 2010, having served half of his 20 year sentence (including time served during trial and appeal proceedings). Judge Robinson’s finding was that:
“While Mr. Krajisnik has displayed some evidence of rehabilitation, I am of the view that there remain significant factors that weigh against granting him early release. Mr. Krajisnik’s crimes are of a very high gravity, involving a widespread displacement of the non-Serb population in Bosnia and Herzegovina, which caused great suffering. Moreover, in respect of the requirement that the President shall take into account the treatment of similarly-situated prisoners, the practice of the Tribunal is to consider the eligibility of a convicted person only after he has served two-thirds of his sentence; therefore, the fact that Mr. Krajisnik has only recently completed serving half of his sentence does not weigh in favour of his early release.”
Two Week Adjournment in Karadzic Trial
On Friday last, the Trial Chamber granted a two week adjournment in the Karadžić Trial. This break in proceedings is to give the Accused time to review new disclosure by the Prosecution – audio and video cassettes and CDs seized from the Belgrade residence of Bosiljka Mladić, wife of General Ratko Mladic. In granting the motion for an adjournment, the Chamber found that:
There is no suggestion made by the Accused that the Prosecution acted inappropriately or with any delay in its disclosure to him of the cassettes and CDs, which are discussed in the Motion. Indeed, he acknowledges that there is no “fault” on the part of the Prosecution in the recent discovery of the material seized from the Mladić residence. Nonetheless, the fact remains that a substantial quantity of material, which may include potentially exculpatory evidence, was provided to the Accused on 4 and 6 August 2010. While a detailed index to that material prepared by the Serbian authorities may have been provided to the Accused, which would suggest which tapes he should initially focus his attention upon, such an index cannot substitute for his own detailed review of all the material (no doubt also being conducted by the Prosecution) so that the Accused can be satisfied as to the nature of its content and whether it contains anything exculpatory or otherwise important for his defence.
…..
The Chamber is also not satisfied that continuing with the trial proceedings, and allowing the Accused to later recall certain witnesses for further cross-examination following his review of the seized material, if necessary, is sufficient, in this instance, to ensure his fair trial rights. Moreover, it will not be, in practical terms, conducive to the smooth conduct of the trial.
Investigation into Prosecution Misconduct Ordered in Seselj Case
The Trial Chamber in the Seselj Case has ordered the appointment of an amicus curiae to “investigate possible intimidation or pressure, albeit indirect, exerted by certain investigators for the Prosecution in this case and to investigate techniques used by these investigators to obtain preliminary written statements from witnesses, particularly insofar as concerns” certain persons who have testified or may potentially testify.
The order comes about as a result of complaints made by the accused, including a motion for contempt against prosecutors Carla Del Ponte, Hildegard Uertz-Retzlaff and Daniel Saxon, of 23 March 2007. A decision on that motion had been stayed until the end of the Trial. The Chamber now reconsiders that stay, noting that since the trial began, 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.
As outlined in the Decision, the Chamber finds that the testimony of these witnesses, and other material received since the start of trial, constitute new facts that justify reconsideration of the Stay and that it is necessary for the Chamber to be seized sua sponte of the Motion for Contempt at this stage of the proceedings, without waiting for proceedings to conclude, out of concern for the expeditious conduct of the trial and in order to have a clear glimpse of the grievances alleged by the Accused, based on the findings of the amicus curiae.
Closing Arguments Next Week in Gotovina et al
Closing arguments in the case of Ante Gotovina, Ivan Čermak and Mladen Markač will he held from Monday 30 August to Thursday 2 September. The Prosecution has been allotted six hours to deliver its closing arguments, and the three Defence teams will each have two and a half hours. The Prosecution will then have one hour for rebuttal arguments, and the Defence will have one hour for their rejoinder.
According to Bangladeshi media, two detained leaders of Jamaat-e-Islami have petitioned the High Court to revoke the first amendment to the constitution that enabled the establishment of the Bangladesh International Crimes Tribunal (ICT). They are also also seeking the repeal of some sections of the International Crimes Tribunal Act, as inconsistent with the constitution.
The ICT was established to try those accused of committing war crimes during the 1971 liberation war, in which Bangladeshi forces gained independence from Pakistan. Jamaat are suspected of having collaborated with Pakistani forces during the war. Arrest warrants for four Jamaat leaders were issued in July, they have since been arrested and appeared before the ICT on 2 August 2010 on charges of committing crimes against humanity. They are assistant secretaries general Mohammad Kamaruzzaman and Abdul Quader Molla, Jamaat chief Matiur Rahman Nizami and secretary general Ali Ahsan Mohammad Mojaheed. They are being detained until further order from the court.
Monitor – Khmer Rouge Trials - Based in Phnom Penh, Cambodia
Project Description
Open Society Justice Initiative (“Justice Initiative”) has undertaken capacity building, training, advocacy, monitoring, and outreach, and other work in relation to the Extraordinary Chambers for the period of Democratic Kampuchea process since 2005.
Police, prosecutorial and judicial abuses in Cambodia have periodically drawn strong expressions of concern from the international community in the context of efforts to strengthen the rule of law in the country. Nonetheless, the main focus of international attention in recent years has become the Extraordinary Chambers of the Courts in Cambodia (ECCC) to prosecute Khmer Rouge (KR) leaders for massive crimes committed under their rule from 1975 to 1979. Following a 2003 agreement between the United Nations and the Royal Government of Cambodia, a trial process for senior leaders and those most responsible for the crimes of the Khmer Rouge era has been established.
The atrocities that were committed in Cambodia during the period of Democratic Kampuchea represent one of the great unredressed crimes of the 20th century, and a source of ongoing trauma to Cambodian people and society. The ECCC was established in the courts of Cambodia to try those most responsible for those crimes represent a crucial element in the process of providing redress and assisting Cambodia in addressing the legacy of these crimes. At the same time, the Cambodian government and the officials of the ECCC are undertaking this enormously important task with few resources and in a short time frame, even as the ECCC presents itself as but one part of the larger problem of justice and accountability in Cambodia. These factors make coordination, monitoring, and high-quality input at every stage important.
To this end, the Justice Initiative, is engaged in work to strengthen the ECCC and to increase its potential for contributing productively to the longer-term aim sought by Cambodians, namely, the development of a culture of accountability and the rule of law in their country. We have been the sole full time monitor of the ECCC and court officials, donors, and the NGO community have indicated that our monitoring role is indispensable to ensuring the integrity of the trial process.
Project Background
Since 2003, the Open Society Justice Initiative has been present on the ground in Cambodia to monitor developments, raise local and international awareness about the court, and provide technical assistance in the lead-up to the court’s opening. After long delays and troubled negotiations, the court, imperfect as it is, officially began operations in July 2006. Five individuals were subsequently arrested, the first trial was completed in November 2009, and the Judgment and Sentence handed down on July 26, 2010. Approximately thirty thousand people traveled to the court to witness some part of the proceedings, and countless more have tuned into radio and TV feeds. There is clearly a great interest among many Cambodians in the work of the ECCC.
This impressive progress, however, is set against a backdrop of deep administrative and operational problems. In 2007, the Justice Initiative brought to light serious allegations of corruption at the court. It has been a vocal advocate for much needed changes, including protections for whistleblowers. The court also suffers from a lack of credibility because of evidence of political interference in decisions about who will be prosecuted. Outreach efforts to the Cambodian people, while improving, have been lacking. Limited transparency about the work of the court is a problem. Journalists wanting to report on the court’s work have had difficulty getting information from the court or accessing what they need to cover its proceedings. The court continues to search for additional funds from the international community to finish its work, which is expected to last several more years.
By monitoring and performing advocacy around these and related issues, the Justice Initiative hopes to contribute to the success of the court in meeting its goals.
Responsibilities
Based in Phnom Penh and reporting to the Senior Legal Officer, International Justice, the Monitor–Khmer Rouge Trials performs the following tasks:
1. Closely monitors the pretrial, trial, and appeals processes and provides regular (at least weekly) reports on the process and progress of the KR trials to the Justice Initiative, and provide regular reports for the public at large. As appropriate, prepares confidential reports for the UN, ECCC donors or the court itself;
2. Liaises with all organs of the Tribunal to assess needs that the Justice Initiative or others could fulfill to help ensure the Tribunal fulfills its mandate;
3. Liaises with, and provides accurate information to, NGOs, donors, the UN, and journalists monitoring the Tribunal, in Phnom Penh and elsewhere in Cambodia, and occasionally in New York and Washington DC, as required;
4. Writes op-eds or legal commentary on the trials, to educate the public and the international community about its performance, needs, strengths and shortcomings, as appropriate;
5. Writes at least quarterly updates or thematic reports on the ECCC, both for donors and the public;
6. Provides continuous guidance to the Justice Initiative and others, as appropriate, on the integrity of the trial process, with particular attention paid to corruption and independence issues;
7. Performs other supportive efforts as required and mutually agreed;
8. Coordinates with and supervises other Justice Initiative related staff in Cambodia, including providing assistance with Technical Advisory visits and oversees protection issues;
9. Oversees the operations, including financial reporting, and other work of the Phnom Penh office;
10. Engages in advocacy, outreach, and training on the Khmer Rouge Trials as appropriate; and
11. Performs other duties as requested by the Senior Legal Officer or Executive Director.
Qualifications
Experience working in or with other international/hybrid tribunals;
Strong familiarity with criminal law and procedure;
Ability to interact with diplomats, Tribunal officials, NGOs, journalists, and victimized communities in a professional, discreet, diplomatic and tactful manner;
Effective communication skills with all components of the Tribunal, including Registry, Chambers, Prosecution, Defense, and Administration;
Professional journalistic writing and editing experience;
Superb organizational capabilities;
Cultural sensitivity
Fluency in English with excellent written language skills; Khmer language skills a plus but not a requirement;
High level of motivation and ability to work both independently and with others;
Integrity, professional discretion and ability to handle confidential matters.
Salary: Commensurate with experience with full benefits.
Anticipated Start Date: November 1, 2010
To Apply
Please email resume, writing sample and cover letter with salary requirements and contract details of 3 references (preferably previous supervisors) to applications@admingroup.hu , including “Monitor – OSJI” in the Subject title.
As reported by the UN News Centre on 11 August, the Prosecutor of the Special Tribunal for the Lebanon (STL), Daniel Bellemare has asked that country’s authorities to hand over all information allegedly held by Hizbollah leader Hassan Nasrallah pertaining to the 2005 attack against the former Lebanese Prime Minister Rafiq Hariri and 22 others. Mr. Nasrallah held a press conference on 9 August during which he offered information to assist the investigation, and showed a video that he claimed implicates Israel in the attack.
“In line with its mandate, the Office of the Prosecutor has requested the Lebanese authorities to provide all the information in possession of Secretary General Hassan Nasrallah,” the Special Tribunal for Lebanon stated in a news release. The Office of the Prosecutor also invited Mr. Nasrallah to “use his authority to facilitate its investigation.”
For the STL press release please see here – http://www.stl-tsl.org/sid/195
The Rules of procedure and evidence for the Bangladesh War Crimes Tribunal have come into the possession of the ICLB. They can be viewed here – ICT-BD Rules of Procedure
Rule 51 is alarming:
51. (1) The onus of proof as to the plea of ‘alibi’ or to any particular fact or information which is in the possession or knowledge of the defence shall be upon the defence.
We welcome further comment from others on these provisions.
On 20 May, the Prosecution claimed that the anticipated testimony of Miss Naomi Campbell concerned a central issue in the trial of Charles Taylor, namely his “possession of rough diamonds”.
Dressed impeccably and traditionally late, Miss Campbell appeared in The Hague today to testify as a Prosecution witness in the SCSL trial of Charles Taylor.
She testified that she attended a dinner at the request of Nelson Mandela at his Presidential Palace in September 1997. The guests who included Imran Khan, Quincy Jones, Charles Taylor, and Mia Farrow had all been personally invited by Mr Mandela to mark the inaugural journey of the South Africa’s newly renovated equivalent of the Orient Express, called the Blue Train. Carole White, Campbell’s former agent was also present at the dinner.
Campbell testified that after the dinner she retired to her room in the palace and was later awoken during the night by a knock at her door. Two black men presented her with a “pouch” stating merely the words “a gift for you”. She explained that she did not look in the pouch until the morning when she saw a few “very small dirty looking stones”. Neither did she ask the men who the gift was from or what it was.
It was Mia Farrow or her former agent Carole White at breakfast the next day who told her they must be diamonds and that they must have come from Charles Taylor. She stated that she assumed that this must be right, but conceded that she had never previously heard of Liberia or Mr Taylor, or of the term “blood diamonds”. Later that day she gave the contents to Jeremy Ratcliffe, head of the Nelson Mandela Children’s Fund to “do some good”. Mr Ratcliffe told Miss Campbell last year that he still had the diamonds in his possession.
Miss Campbell denied accounts put to her by the Defence from Miss Farrow and Miss White which suggested that Miss Campbell and Mr Taylor had engaged in flirtatious conversation over dinner; that she had been sat between Mr Taylor and one of his ministers; that Miss White was present with the two men who knocked on Miss Campbell’s bedroom door, and that Miss Campbell examined the contents of the pouch there and then, and was “excited”. These, Miss Campbell confirmed, were “lies”. Miss White is currently engaged in a contractual dispute with Miss Campbell and is due to testify next week, along with Miss Farrow.
Although I pondered the veracity of Miss Campbell’s claim that she didn’t look at the contents of the “cloth” until the morning after, and that she was told that they were “diamonds” by Miss Farrow or Miss White, although she claimed she didn’t show them the pouch, one thing is clear: reliance upon a mere “assumption” made by Miss Campbell based upon a chat over breakfast with White and Farrow as to the content of the pouch and its source does not in any way, shape or form establish either that the two men who presented the cloth were linked to Charles Taylor, or indeed, that he was in “possession of rough diamonds”. A central issue in the trial it may be, but it is one which Miss Campbell’s testimony does not substantiate.
By the end, the Prosecution tried to assert that Miss Campbell was not their witness – but as the Presiding Judge made clear, she certainly wasn’t a witness of the court. Next week’s installment is highly recommended viewing!
On 20 May, the Prosecution claimed that the anticipated testimony of Miss Naomi Campbell concerned a central issue in the trial of Charles Taylor, namely his “possession of rough diamonds”.
Dressed impeccably and traditionally late, Miss Campbell appeared in The Hague today to testify as a Prosecution witness in the SCSL trial of Charles Taylor.
She testified that she attended a dinner at the request of Nelson Mandela at his Presidential Palace in September 1997. The guests who included Imran Khan, Quincy Jones, Charles Taylor, and Mia Farrow had all been personally invited by Mr Mandela to mark the inaugural journey of the South Africa’s newly renovated equivalent of the Orient Express, called the Blue Train. Carole White, Campbell’s former agent was also present at the dinner.
Campbell testified that after the dinner she retired to her room in the palace and was later awoken during the night by a knock at her door. Two black men presented her with a “pouch” stating merely the words “a gift for you”. She explained that she did not look in the pouch until the morning when she saw a few “very small dirty looking stones”. Neither did she ask the men who the gift was from or what it was.
It was Mia Farrow or her former agent Carole White at breakfast the next day who told her they must be diamonds and that they must have come from Charles Taylor. She stated that she assumed that this must be right, but conceded that she had never previously heard of Liberia or Mr Taylor, or of the term “blood diamonds”. Later that day she gave the contents to Jeremy Ratcliffe, head of the Nelson Mandela Children’s Fund to “do some good”. Mr Ratcliffe told Miss Campbell last year that he still had the diamonds in his possession.
Miss Campbell denied accounts put to her by the Defence from Miss Farrow and Miss White which suggested that Miss Campbell and Mr Taylor had engaged in flirtatious conversation over dinner; that she had been sat between Mr Taylor and one of his ministers; that Miss White was present with the two men who knocked on Miss Campbell’s bedroom door, and that Miss Campbell examined the contents of the pouch there and then, and was “excited”. These, Miss Campbell confirmed, were “lies”. Miss White is currently engaged in a contractual dispute with Miss Campbell and is due to testify next week, along with Miss Farrow.
Although I pondered the veracity of Miss Campbell’s claim that she didn’t look at the contents of the “cloth” until the morning after, and that she was told that they were “diamonds” by Miss Farrow or Miss White, although she claimed she didn’t show them the pouch, one thing is clear: reliance upon a mere “assumption” made by Miss Campbell based upon a chat over breakfast with White and Farrow as to the content of the pouch and its source does not in any way, shape or form establish either that the two men who presented the cloth were linked to Charles Taylor, or indeed, that he was in “possession of rough diamonds”. A central issue in the trial it may be, but it is one which Miss Campbell’s testimony does not substantiate.
By the end, the Prosecution tried to assert that Miss Campbell was not their witness – but as the Presiding Judge made clear, she certainly wasn’t a witness of the court. Next week’s installment is highly recommended viewing!
Steven Kay QC and Gillian Higgins have posted a resume of the right to self-representation of an accused at the ICTY under the title : “The Right of Self-Representation – The Lawyers in the Eye of the Storm”.
This article has been written by them for the ICLB, in response to the numerous requests received for information on this subject. They hope it assists as a brief outline on the development of the issue since the trial of Slobodan Milosevic.
The Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) today found Kaing Guek Eav alias Duch guilty of crimes against humanity and grave breaches of the Geneva Conventions of 1949 and sentenced him to thirty-five years of imprisonment. Following an earlier decision of the Chamber of 15 June 2009, the Chamber considered that a reduction in the above sentence of five years was appropriate given the violation of Duch’s rights occasioned by his illegal detention by the Cambodian Military Court between 10 May 1999 and 30 July 2007. He is further entitled to credit for time already spent in detention, under the authority both of the Cambodian Military Court and the ECCC. The Chamber also decided that there were significant mitigating factors that mandated the imposition of a finite term of imprisonment rather than one of life imprisonment. These factors included cooperation with the Chamber, his admission of responsibility, limited expressions of remorse, the coercive environment in Democratic Kampuchea, and the potential for rehabilitation.
Duch, the first person to stand trial before the ECCC, served as Deputy and then Chairman of S-21, a security centre tasked with interrogating and executing persons perceived as enemies of Democratic Kampuchea by the Communist Party of Kampuchea. S-21 was operational between 1975 and 1979. The Chamber found that every individual detained within S-21 was destined for execution in accordance with the Communist Party of Kampuchea policy to “smash” all enemies. In addition to mass executions, many detainees died as a result of torture and their conditions of detention. Although finding a minimum of 12,272 individuals to have been detained and executed at S-21 on the basis of prisoner lists, the Chamber indicated that the actual number of detainees is likely to have been considerably greater.
In a controversial decision, the ICTY Appeals Chamber (Judge Robinson dissenting) partially quashed the acquittals of Ramush Haradinaj (Kosovo’s ex-Prime Minister and former commander of the Kosovo Liberation Army or KLA), Idriz Balaj (former KLA member of commander of the Black Eagles), and Lahi Brahimaj (former deputy commander of the KLA Dukagjin Operative Staff). The Appeals Chamber ordered a partial re-trial of the case, although no details were provided as to when that would take place and before which Trial Chamber.
Haradinaj, Balaj and Brahimaj were acquitted on 3 April 2008 for insufficient evidence of a joint criminal enterprise to consolidate total KLA control of the Dukagjin area through the unlawful removal and mistreatment of civilians who were perceived to be collaborating with Serb forces. Haradinaj and Balaj were acquitted of all alternative charges but Brahimaj was found guilty of torture and sentenced to six years imprisonment.
The majority judgment (Judges Meron, Pocar, Vaz, Daqun) ruled that the Trial Chamber erred by refusing the Prosecution’s requests for additional time to exhaust all reasonable steps to secure the testimony of two witnesses and ordering the close of the Prosecution case before such reasonable steps could be taken. The majority stated that the Trial Chamber “failed to appreciate the gravity of the threat that witness intimidation posed to the trial’s integrity” which “undermined the fairness of the proceedings as guaranteed by the Statute and Rules and resulted in a miscarriage of justice.”
The Appeals Chamber rejected the Prosecution’s other two grounds of appeal by upholding Balaj’s acquittal for aiding and abetting the murder of three women, and for the rape, cruel treatment and torture of a female victim.
Presiding Judge Robinson issued a strongly worded dissent focusing on the proper limits of the trial and appellate functions. Paragraph 32 reads:
“The Majority Opinion constitutes an overstepping by the Appeals Chamber of its boundaries, and in doing so, confuses the appellate with the trial function. This is a dangerous precedent, which militates against the proper discharge by the Tribunal of its mandate to try persons for serious breaches of international humanitarian law.”
Judge Robinson disagreed with the majority for three reasons:
The Trial Chamber was sensitive to the importance of both witnesses’ testimony for the Prosecution’s case and the general atmosphere of fear and intimidation of witnesses by extending the case three times, and remaining open to the possibility of granting a further extension upon a showing by the Prosecution of a dramatic change in circumstances.
The majority opinion amounts to “a substitution of its own discretion for the discretion exercised by the Trial Chamber, and that can only be done where a discernible error on the part of the Trial Chamber can be demonstrated.” No error was demonstrated for the same reasons listed above.
By prioritizing the Prosecution’s right to present its case through these witnesses over the right of the accused to an expeditious trial, the majority “wrongly interpreted the relationship between Articles 20 and 21 of the Statute, completely ignoring the fact that the rights enumerated under Article 20 are to be applied “with full respect for the rights of the accused” under Article 21(4)”.
Idriz Balaj is represented by ICLB members Gregor Guy-Smith and Colleen Rohan.
A summary and the full text of the Appeals Judgement is below, along with other links:
Steven Kay QC and Gillian Higgins of the ICLB filed their Final Brief on behalf of Ivan Čermak in The Prosecutor v. Gotovina, Čermak and Markač on Friday 16 July. The brief was filed confidentially due to protection measures but a public version of the document will be available at a future date.
Following its decision, dated 8 July, 2010, imposing an unconditional stay on the proceedings of the case The Prosecutor v. Thomas Lubanga Dyilo, Trial Chamber I of the International Criminal Court (ICC) today, 15 July, ordered the release of the accused. According to the judges, an accused cannot be held in preventative custody on a speculative basis, namely that at some stage in the future the proceedings may be resurrected.
However the order will not be implemented with immediate effect. “This order shall not be enforced until the five day time limit for an appeal has expired”, stated presiding Judge Adrian Fulford in a hearing today. “If an appeal is filed within the five day time limit against this order granting release, and if a request is made to suspend its effect, the accused shall not leave detention until the Appeals Chamber has resolved whether this order granting release is to be suspended”, Judge Fulford continued. The Chamber also noted that an order releasing the accused shall only be put into effect after arrangements have been made for his transfer to a State that is obliged to receive him. In its oral decision, Trial Chamber I also granted the Prosecutor’s 15 July application for leave to appeal the decision to stay the proceedings.
The Pre-Trial Chamber of the ICC has issued a second warrant of arrest against Sudanese President Omar al-Bashir, adding genocide to the charges against him. The Pre-Trial chamber considers, according to the ICC press-release, “that there are reasonable grounds to believe him responsible for three counts of genocide committed against the Fur, Masalit and Zaghawa ethnic groups, that include: genocide by killing, genocide by causing serious bodily or mental harm and genocide by deliberately inflicting on each target group conditions of life calculated to bring about the group’s physical destruction.”
This second arrest warrant does not replace or revoke the first warrant against al-Bashir , issued on 4 March, 2009. In that warrant, the Chamber considered “that there are reasonable grounds to believe that Mr Al Bashir is criminally responsible for five counts of crimes against humanity (murder, extermination, forcible transfer, torture and rape) and two counts for war crimes (intentionally directing attacks against a civilian population as such or against individual civilians not taking direct part in hostilities, and pillaging).”
The Pre-Trial Chamber had previously rejected the Prosecutor’s application to add the crime of genocide. The Prosecution appealed this Decision, and, on 3 February, 2010, the Appeals Chamber rendered its judgment on the Prosecutor’s appeal, reversing the Pre-Trial Chamber decision. It referred the matter back to the Pre-Trial Chamber, so it could to decide anew whether or not the arrest warrant should be extended to cover the charge of genocide.
For further analysis and commentary follow the links below:
For the first time in ICTY history, an Appeals Judgement will be reviewed in the case of Veselin Šljivančanin. The ICTY has seen eleven previous applications filed by the Defence or the Prosecution (one case) and each has been rejected.
Today’s decision of the Appeals Chamber (Judge Meron, Presiding, Judge Guney, Judge Pocar, Judge Liu, and Judge Vaz) follows Šljivančanin’s public hearing on 3 June 2010 which considered a ‘new fact’ from his unit commander General Miodrag Panić.
Panić testified that he was present during the conversation between Mile Mrkšić and Šljivančanin on 20 November 1991, and that Mrkšić did not tell Šljivančanin about any order to withdraw the JNA protection for the prisoners of war at Ovčara. According to the Appeals Chamber, this information could, if proved, “fundamentally alter the balance of evidence relating to this case, eliminating the basis for the Mrkšić and Šljivančanin Appeal Judgement’s conclusion that Šljivančanin possessed the mens rea for aiding and abetting murder.”
The Appeals Chamber further stated while this new fact was discoverable through due diligence, review is “necessary because the impact of the Panić New Fact, if proved, is such that to ignore it would lead to a miscarriage of justice.”
This echoes the Barayagwiza Review Decision of the ICTR which granted the Prosecutor’s Application for Review even though the facts “could have been discovered”, citing the decisive nature of the new fact and the “possible miscarriage of justice”.
The Review Hearing will allow the parties to provide supporting and rebuttal evidence concerning the new fact.
As reported on the ICLB blog, Šljivančanin has made a number of motions to reopen his case following the Appeals Judgement which quashed his acquittal for aiding and abetting the murder of prisoners of war at Ovčara, and increased his sentence from 5 to 17 years.
Yesterday, Trial Chamber I of the ICC ordered a stay of proceedings in The Prosecutor v. Thomas Lubanga Dyilo. The basis for that stay is that the fair trial of the accused is no longer possible due to non-implementation of the Chamber’s orders by the Prosecution. The judges had previously ordered the Office of the Prosecutor, on the issue of “intermediaries” (persons such as aid-workers who liaise between witnesses and the Prosecution), to confidentially disclose to the Defence the names and other necessary identifying information, of intermediary 143. The Prosecution failed to comply with the Trial Chamber’s order.
Readers may recall that in November 2008, the Chamber also ordered a stay of proceedings due to the Prosecution’s failure to comply with the rules on disclosing exculpatory materials to the Defence.
In yesterday’s Decision, the Chamber held:
27. No criminal court can operate on the basis that whenever it makes an order in a particular area, it is for the Prosecutor to elect whether or not to implement it, depending on his interpretation of his obligations. The judges, not the Prosecutor, decide on protective measures during the trial, once the Chamber is seized of the relevant issue, as regards victims, witnesses and others affected by the work of the Court, and the prosecution cannot choose to ignore its rulings. It is for the Chamber to determine whether protective measures are necessary (following consultation with the VWU under Article 68(4) of the Statute); their nature; and whether they are consistent with the accused’s right to a fair trial. These are issues for the Court, and the Court alone, to determine, having heard submissions and having considered all the information the judges consider necessary and relevant. The Prosecutor now claims a separateauthority which can defeat the orders of the Court, and which thereby involves a profound, unacceptable and unjustified intrusion into the role of the judiciary.
28. The Prosecutor has chosen to prosecute this accused. In the Chamber’s judgment, he cannot be allowed to continue with this prosecution if he seeks to reserve to himself the right to avoid the Court’s orders whenever he decides that they are inconsistent with his interpretation of his other obligations. In order for the Chamber to ensure that the accused receives a fair trial, it is necessary that its orders, decisions and rulings are respected, unless and until they are overturned on appeal, or suspended by order of the Court. (…)
31. Therefore, the Prosecutor has elected to act unilaterally in the present circumstances, and he declines to be “checked” by the Chamber. In these overall circumstances, it is necessary to stay these proceedings as an abuse of the process of the Court because of the material non-compliance with the Chamber’s orders of 7 July 2010, and more generally, because of the Prosecutor’s clearly evinced intention not to implement the Chamber’s orders that are made in an Article 68 context, if he considers they conflict with his interpretation of the prosecution’s other obligations. Whilst these circumstances endure, the fair trial of the accused is no longer possible, and justice cannot be done, not least because the judges will have lost control of a significant aspect of the trial proceedings as provided under the Rome Statute framework.
Joseph Nzirorera, an accused in the ongoing Karemera et al. case, passed away in Arusha on 1 July 2010, following sudden complications of a long illness. Nzirorera was former President of the National Assembly and Secretary-General of the Mouvement Républicain pour la Démocratie et le Développement (MRND). He was jointly tried with Edouard Karemera, former Minister of Interior and Vice-President of the MRND and Mathieu Ngirumpatse former Director General of the Ministry of Foreign Affairs.
The defendants are jointly charged with seven counts of conspiracy to commit genocide, direct and public incitement to commit genocide, genocide, complicity in genocide (as an alternative to genocide), crimes against humanity (rape, extermination) and serious violations of Article 3 common to the Geneva Conventions and Additional Protocol II.
Nzirorera was represented by Peter Robinson. His defence case was in its final stages, with his last witness undergoing cross-examination.
On Friday last, the Trial Chamber 
