INTERNATIONAL TRIALS
Issue 011 November 2009
ICTY
Guest Post by Goran Sluiter: Karadžić’s Requests for More Time and the Response of the ICTY
Karadžić is right in requesting more time. The Yugoslav Tribunal does not seem to appreciate thorough defences Radovan Karadžić is currently on trial at the International Criminal Tribunal for the former Yugoslavia in The Hague. Although this Court has successfully completed many cases over the last 15 years, the trials of major political leaders attract the most attention and public opinion. As a result, the appreciation for and legacy of the Court depends on how these complex and high-profile cases are handled.
The Judges in the Karadžić case intend to deliver expeditious justice, clearly with a view to preventing the disasters in the trials of Milosevic and Seselj. The former died before the end of his trial, after more than four years of seemingly endless proceedings. The latter has also managed to drag on his trial for years, among other means, by using hunger strikes as an instrument of manipulation of the proceedings. In light of these experiences and bearing in mind the serious nature of the accusations, one may feel inclined towards being tough on the accused, Dr. Karadžić, including curtailing his preparation time in order to get the trial started. The fact that Dr. Karadžić represents himself is not appreciated and often advanced as the main cause for any delay or difficulty in effectively preparing the case.
A thorough and fair evaluation of the current deadlock between Dr. Karadžić and his Judges and Prosecutors warrants a different conclusion. The heart of the matter is that criminal cases of this size and complexity require a great deal of time for effective preparation. Denying sufficient time simply means that the case cannot be effectively prepared. In the Karadžić case it can be demonstrated by simple calculation that the time now attributed to the case can never be sufficient to simply read the evidence, let alone thoroughly examine it and discuss it with his defence team.
Under the Rules of Procedure at the ICTY, the Prosecutor must disclose to the defence all of its proposed evidence, including witness statements and documentary evidence, exculpatory material and other relevant material such as the case files of other related cases. During the pre-trial proceedings in his case, Dr. Karadžić mentioned the number of some 1,000,000 pages of disclosure. The accuracy of this number seems not to be in dispute. Inherent in the system of disclosure is that all these one million pages are relevant to the defence, and the right to a fair trial requires that the accused is in a position to read this material and discuss it with his defence team. Whether the accused is formally represented by counsel or representing himself does not change that fact – even when represented by counsel, an accused has the right to and should be in a position to, study relevant material and discuss the content with counsel, in order to instruct and advise counsel.
The almost full impossibility of the task the accused is up against can be demonstrated by simple calculation. Suppose the accused can read 200 pages a day; at that rate, he would need 5000 days to go through all the disclosed material, Reading 500 pages a day would require 1000 days, 3 years of preparation. Interestingly, neither the Prosecutor nor the Judges seem to have done any fair and reasonable similar calculation in this case.
One might argue that he does not have to read every page; maybe some things are more relevant than others. However, who is going to decide that for Dr. Karadžić? Clearly the accused is entitled to verify such determinations by the opposing party. The solution is actually quite simple. Either the Prosecution reduces the size of the case and thereby the size of the indictment, meaning that the accused has less material to process for preparation or the accused is given the time that is reasonably required to process all the information. Unfortunately, it is not uncommon at the Yugoslav Tribunal for defence teams to be swamped by enormous amounts of material disclosed to them at the pre-trial stage and during trial. However, leaving aside the question whether they could be, or in fact were, effectively prepared for trial in their respective cases, previous precedents are of little value to the present case. The starting point, which was ignored by the respective Chambers in this case, is quite simple: when material relevant to the case has been disclosed to the accused, the latter must be in position to reasonably digest and process that material.
Bearing in mind the moment of arrest of Dr. Karadžić (July 2008) and the fact that the Prosecution was not ready for some time and that some delay can also be attributed to it, the start of trial in October 2009 was plainly absurd and even 1 March 2010 is fully inconsistent with the accused’s right to a fair trial. Interestingly, the Tribunal has now decided that stand-by counsel will be assigned and should to be ready to take over the defence on 1 March 2010, if, on that date, Dr. Karadžić is still not ready to start trial and refuses to appear before the Chamber. This implies that new counsel, unfamiliar with the case, will just have three months to study the same 1,000,000 pages –and to do much other necessary preparatory work. Leaving aside the questions about whether any responsible lawyer could accept appointment under these conditions, it is absolutely absurd and reminiscent of Kafka’s Der Prozess to start one of the biggest war crimes trials in history under such conditions.
The author of this post, Göran Sluiter, is a Professor of Law in the law of international criminal procedure at the University of Amsterdam, and a member of the Defence team of Dr. Karadžić.
Image courtesy of the ICTY website
Florence Hartmann’s Appeal Against her Contempt Conviction – Freedom of Expression on Trial
On 14 September 2009, Florence Hartmann was convicted by a Trial Chamber of the ICTY for two counts of contempt of court pursuant to Rule 77(a)(ii). Ms. Hartmann has appealed against the trial judgement.
On 9 November, “Article 19”, an NGO committed to the defence and protection of freedom of expression, filed an “Application for Permission to File an Amicus Brief on Behalf of Article 19” in relation to the appeals proceedings against the conviction of Ms. Hartmann.
On 23 November, the Defence of Ms. Hartmann and the amicus Prosecutor filed their respective responses to Article 19’s amicus Brief.
These filings, which are attached to this posting, set out the outline of one of the most important issues pertaining to Ms. Hartmann’s appeal against her conviction, namely, what the Defence says has been the failure of the Trial Chamber to apply the rules and principles of international law which were relevant to the curtailment of Ms. Hartmann’s freedom of expression and the criminalisation of her statements through the exercise of the Tribunal’s contempt powers (pursuant to Rule 77(A)(ii) of the ICTY’s Rules of Procedure and Evidence).
Appeal proceedings in this matter are pending.
23 Nov 09 – Hartmann Submissions on Article 19 Amicus Brief
23 Nov 23 OTP Response to Application by Article 19
05 Nov 09 – Article 19 Amicus Curiae Brief
ICTY Appeals Chamber Reduces Dragomir Milošević’s Sentence
On 12 November the Appeals Chamber of the ICTY reduced Dragomir Milošević’s sentence from 33 to 29 years. The Trial Chamber found that Milošević was guilty of crimes against humanity and of a violation of the laws or customs of war.
He was convicted of 5 counts of terror, murder and inhumane acts conducted during a campaign of sniping and shelling which resulted in the injury and death of a great number of civilians in the besieged Bosnian capital. Two counts of unlawful attacks against civilians were dismissed in the December 2007 Judgement, as impermissibly cumulative on the ground that the elements of the crime of unlawful attack against civilians are fully encompassed by the crime of terror. The Appeals Chamber corrected the Trial Chamber’s errors of law with regard to the elements of the crime of terror, and then held that convictions for both crimes could be entered cumulatively, but declined to pursue its analysis as the Prosecution did not appeal the matter. The Prosecution’s sole ground of appeal requesting that Milošević be sentenced to life imprisonment was dismissed in its entirety.
The Appeals Chamber reversed the part of the Trial Judgement where Milošević was convicted, on the basis of individual responsibility for the planning and ordering of sniper fire and artillery attacks, and found him guilty of those crimes on the basis of command responsibility, for failing to prevent or punish those who committed the crimes.
The Appeals Chamber Judgement is available here –
http://www.icty.org/x/cases/dragomir_milosevic/acjug/en/091112.pdf
Photo courtesy of the ICTY website.
Motion for Reconsideration of Šljivančanin Appeal: Is the ICTY Above the Law?
Guest Post by Alex Fielding
Stephane Bourgon and Novak Lukic, counsel for Veselin Šljivančanin, held a press conference at the Bel Air Hotel on 13 November 2009 to present a Motion on Behalf of Veselin Šljivančanin for Reconsideration of the Šljivančanin
Appeals Judgment of 5 May 2009.
The motion asks for a new trial or a reconsideration of the Šljivančanin Appeals Judgment by a new appeals chamber, on the basis that the appeals judgment:
- was rendered per incuriam (with lack of care);
- rested on a clear error of reasoning; and
- has led to an injustice.
In the alternative, the motion asks the Appeals Chamber to refer the interpretation and/or modification of Article 25(2) of the ICTY statute to confirm whether the right to appeal one’s conviction must be enforced by the ICTY, even if it involves a reconsideration of an Appeals Chamber judgment.
The highly controversial Šljivančanin Appeals Judgment (Judge Pocar and Judge Vaz dissenting) quashed Šljivančanin’s acquittal of Count 4 of the indictment (aiding or abetting murder of prisoners at Ovčara by omission) and increased Šljivančanin’s sentence from 5 to 17 years. This decision was made without hearing any new evidence.
Judge Pocar’s dissent stated that the Appeals Chamber did not have the power to quash a trial acquittal and increase the sentence as it would violate Art.14(5) of the ICCPR which protects an accused’s right to appeal. Both Judge Pocar and Judge Vaz recommended that the case be sent back for retrial.
Bourgon noted that this motion should not be confused with a motion for review under Article 26 of the ICTY Statute (challenging the appeal based on new evidence), although he confirmed that he would file this motion if necessary based on the evidence of 2-3 new witnesses.
The motion exposes the tension between the Zigic Reconsideration Decision that “there is no power to reconsider a final judgment”, and the accused’s right to an appeal, as protected by Art. 14(5) of the ICCPR. It also raises fundamental questions as to due process standards at the ICTY.
Bourgon will now ask the Republic of Serbia, international organizations, and all members of the UN Security Council to make arguments on this issue, as it impacts upon the legitimacy and legacy of the ICTY and international criminal law as a whole.
The motion is available here: Sljivancanin Motion for Reconsideration
Alex Fielding is currently interning with the Perisic Defence at the ICTY.
ECCC
ECCC Update: Details of Case 002; Duch Defence Challenge JCE; Civil Parties challenge Trial Chamber, Request Reparations in Case 001; ECCC authority explored.
ECCC Updates By Jenny Kelleher
Details of Case 002 Released
On 5 November 2009, the Office of the Co-Investigating Judges (OCIJ) released documents that illustrate the scope of the judicial investigation of Case 002. This comprised allegations of crimes committed by Khieu Samphan, Nuon Chea, Ieng Sary, Ieng Thirith and Duch between 17 April 1975 and 6 January 1979.
The files include mapped details of 20 sites and areas under investigation. 6 cooperative and work sites are being investigated from 6 different provinces. A total of 14 security centres and execution sites across Cambodia are also under inquiry.
The OCIJ are investigating acts carried out against the public which include displacement of persons, mistreatment of Buddhists, Vietnamese and members of the Cham minority, internal ‘purges’ and forced marriage.
At a tribunal press conference held last Thursday, Lars Olsen said the decision to release this information is for the benefit of prospective civil party applicants, who must submit their applications 15 days after the close of judicial investigation. The OCIJ have reiterated that they hope to complete the investigation by the end of 2009.
The statement from OCIJ is available here.
The map of the worksites and cooperatives under investigation is here.
The map of security centres and execution sites is here.
Civil Parties Prepare for Case 002
As the judicial investigation continues, lawyers for civil parties are also preparing for the second ECCC trial. The ECCC website states that up to 31 October 2009, 5044 Victim Information Forms had been received.
A team of lawyers representing Khmer Krom civil parties are preparing a submission calling for investigating judges to bring genocide charges against the four regime leaders set to be tried in Case 002. Director of the non-profit Access to Justice Asia and member of the legal team, Mahdey Mohan, said that in addition to 25 Khmer Krom clients, the team is representing 11 Vietnamese clients, and the submission will also call for genocide charges to be brought in connection with crimes committed against Vietnamese in Kampong Chhnang.
Further discussion of civil party participation is available at:
http://www.cambodiatribunal.org/blog/labels/Civil%20Parties.html
Duch Defence team call for Trial Chamber to dismiss Joint Criminal Enterprise request
Duch’s lawyers argue that a request by the Office of Co-Prosecutors (OCP) to apply joint criminal enterprise (JCE) should be deemed inadmissible. This doctrine of liability means that Duch could be charged with having committed crimes through participation in a common criminal plan.
A decision on JCE had already been reached when the Pre-Trial Chamber decided in December of last year against applying it in the case of Duch. Judges found that the factual basis was not sufficient to justify applying the doctrine. In June of this year, the OCP filed a similar request for the application of JCE to the Trial Chamber, which said it would rule on the request when it issued a verdict.
Duch’s lawyers argue that, should the Trial Chamber judges find the request to be admissible, they should dismiss it because the JCE “in which Duch is alleged to have participated has never been clearly defined” by the OCP. They add: “In the unlikely event that the Chamber were to consider re-characterising the facts, it must invite the Accused to make his submissions in a practical and effective manner on the new characterisation contemplated.”
Civil Parties Group 3 also filed a brief in support of the OCP’s JCE request.
They argue that the internal rules empower the Trial Chamber “to change the legal characterization of crimes” from those outlined in the indictment or ruled on by the Pre-Trial Chamber. The civil party lawyers also said in the filing that Duch had been given “adequate time and facilities” to prepare a defence under the JCE mode of liability. “It therefore cannot be argued that if the Chamber were to accept the application of JCE, the Accused would be denied the opportunity to present his defence in respect of the new characterisation,” the lawyers said, adding that the chamber “should apply JCE as a mode of commission in order to fully cover the Accused’s liability.”
Amicus Curiae Briefs regarding JCE issued to the Pre-Trial Chamber last September are available below:
Institute for Criminal Law and Justice, Georg-August Universität Göttingen.
McGill Centre for Human Rights and Pluralism.
The Journal of International Criminal Justice.
Civil Parties Challenge Trial Chamber in Duch Trial
On 30 October 2009, co-lawyers for civil parties in Case 001 submitted an appeal to the Supreme Court Chamber, requesting that it deem admissible an earlier appeal by the civil parties thus overturning a decision by the Trial Chamber. This follows a decision made on 9 October, in which the Trial Chamber excluded civil party lawyers from questioning the accused, witnesses and experts on the character of the accused and from submissions on sentencing.
During September, co-lawyers for civil parties (Group 2) filed an appeal against an earlier ruling maintaining that civil parties can contribute effectively at the sentencing stage, particularly with regard to assessing the gravity of a crime and valuing any apology. By making submissions on the objective criteria regarding the degree of penalty, civil parties can “considerably support the Court in finding an adequate sentence.” Excluding civil parties from this process “denies them of their primary core right, i.e. supporting the prosecution.” Furthermore, this exclusion is “a grave error in law, an error in Rule 23(1) and violates the core rights of civil parties.” The right to question is “one of the core rights for all parties and thus, also for Civil Parties during the trial phase.” The submission cites Rule 91 (2) IR and Art. 326 of the CPC.
Civil Parties Request Reparations in Case 001
On 14 September 2009, Civil Parties Co-Lawyers issued a joint submission on reparations that requested the Trial Chamber to award the Civil Parties the following as a minimum:
- The compilation and dissemination of apologetic statements made by Duch throughout the trial acknowledging the pain and suffering of victims, including the comments of Civil Parties on these apologies
- Access to free medical care, including physical and psychological care and transportation to medical facilities
- The funding of educational programs in schools and museums to inform in respect of the crimes that took place under the Khmer Rouge
- The erection of pagodas, memorials and pagoda fences at S-21, Choeng Ek and Prey Sar and the local communities of Civil Parties
- Include the names of all the Civil Parties in any final judgment
A verdict in Case 001 is expected in early 2010.
ECCC Authority Explored
The decision by the Office of the Co-Investigating Judges to summon members of the government as witnesses has prompted reaction within Cambodia, in particular by key government officials. Professor David Scheffer and Michael Saliba, from the Center for International Human Rights, Northwestern University School of Law have explored the legal grounding of the authority to do so. The six government officials, who were summoned during October, have not yet indicated if they will appear to provide their testimony. The article points out that those witnesses, once properly summoned, have an obligation to appear. Furthermore, international criminal tribunals outside Cambodia have held several witnesses in contempt for refusing to testify and have issued sentences including prison terms.
The article is available here.
SCSL
Appeals Chamber Judgement in Prosecutor vs. Sesay, Kallon and Gbao (RUF Case)
The Special Court for Sierra Leone (SCSL) Appeals Chamber upheld sentences for three former RUF leaders on 26 October. Former RUF Interim Leader Issa Hassan Sesay and Senior RUF Commander Morris Kallon were each convicted in February 2009 on 16 counts of war crimes and crimes against humanity for atrocities committed during Sierra Leone’s decade-long civil war. Former RUF Security Chief Augustine Gbao was convicted on 14 counts.
The Appeals Chamber judgement upheld the first-ever convictions by an international tribunal for forced marriage as a crime against humanity, and for attacks against United Nations peacekeepers. The Chamber also upheld convictions for the recruitment and use of child soldiers.
The Appeals Chamber unanimously upheld the convictions of Sesay and Kallon on all 16 counts. The Chamber unanimously overturned Gbao’s conviction on Count 2 (collective punishments) and found that he was not responsible for one of the two attacks against UN peacekeepers (Count 15) for which he was convicted by the Trial Chamber.
In addition to the majority opinion, four separate opinions were delivered. The Appeals Chamber Judgement is available here
Guest Post by Wayne Jordash: Joint Criminal Enterprise at the Special Court for Sierra Leone
On 26 October 2009, the Appeals Chamber of the Special Court for Sierra Leone (‘SCSL’) rendered its Judgment in the case against Messrs Sesay, Kallon and Gbao (RUF).
Let us recall the words of Guénaël Mettraux earlier this week in his piece entitled “Joint Criminal Enterprise’ has Grown another Tentacle”:
A wise Judge once said that the legacy of international criminal tribunals will be judged, not by the number of convictions, but by the fairness of their proceedings. It might be right to understand that Judge as having posited that a law that punishes unfairly would not serve the legacy of these institutions.
Mettraux decried the creation of a basic form of Joint Criminal Enterprise by the majority of the SCSL Appeals Chamber. One of the key novelties of this new form lies in its attribution of responsibility without requiring ‘that an accused should share the intent of the other participants in that JCE to commit the crimes that are said to be within its common purpose or goal’.
These cautionary admonishments should resonate through the scholarly analysis of the RUF Trial and Appeal Judgments at the SCSL. The Judgments, finding or upholding the convictions on scores of crimes committed purportedly pursuant to the basic form of JCE, are a salutary reminder of the dangers that lurk within international prosecutions seeking to attribute guilt for the crimes of thousands committed during a lengthy and bloody war to a handful of high profile accused. As the Judgments in the RUF case demonstrate, Joint Criminal Enterprise at the SCSL did not just grow another tentacle at the SCSL: it sprouted several – each lacking the dexterity to return judgments consistent with the principle of individual culpability.
Volumes of jurisprudence and commentary attest to the inherent risks when criminal liability is judged through the notion of a common criminal plan shaped by a plurality of people, where each member must make a co-ordinated contribution to allow the plan to be furthered by others. The risks of a lapse into forms of responsibility whose principle focus is the criminality of the group – and not the acts of the individual – are well known. Triers of these cases must advance carefully, clinging tightly to principles of fairness and the safeguards contained in the procedural regimes developed at the ICTY and ICTR. Without calling on these safeguards, this lapse is not only likely, but inevitable, with predictable consequences for the trial process and the legitimacy of international criminal law.
The SCSL’s confused and dangerous new form of JCE could and should have been avoided. It did not simply materialise at the end of the appellate process nor was it the inevitable result of the assessment of liability through the JCE doctrine. It was not something inherent to the Sierra Leone civil war – even though the prosecutorial challenges were many and varied. The failure was one of due process; a failure to implement procedural safeguards. The procedural safeguards in situ at the SCSL matched, on paper, those at the ICTY and ICTR. The summonsing of them to ensure compliance with the principle of culpability did not.
Like all other trials before the SCSL, the RUF trial commenced with an unorthodox pleading of the JCE. It sowed the seeds of the doctrinal confusion that now bedevils the jurisprudence. The Prosecution was permitted to provide notice of a nebulous campaign of violence, without particularising the nature of the Accused’s participation. The Appeals Chamber upheld a form of pleading that alleged a non-criminal objective, pursued by various criminal means. The non-criminal objective pled was a ‘common plan, purpose or design’ to ‘take any actions necessary to gain and exercise political power and control over the territory of Sierra Leone, in particular the diamond mining areas’. The crimes alleged (acts of terror, collective punishment, unlawful killings, etc.) were pled as actions within or a reasonably foreseeable consequence of that common purpose. The pleading revealed little about the nature and scope of the alleged common purpose and even less about the way in which the JCE members were supposed to be responsible for the crimes. The de jure status of the Accused (in relation to an army of thousands of combatants) particularised as the sole nexus to thousands of crimes and deemed by the Appeals Chamber to provide sufficient notice of the nature of the Accused’s participation in this shapeless criminal campaign.
According to the Appeal Chamber’s reasoning, notice ‘to the accused does not require the objective and the means to be separately pleaded’ as long ‘as the alleged criminality of the enterprise is clear’. Since the ‘crimes charged in Counts 1 through 14 were consistently alleged to be within the JCE’ this was sufficient to provide notice to the Accused. This was plainly too little and manifestly wrong. The Appeals Chamber should have insisted upon the Accused being made aware of the precise relationship between the criminal means and the non-criminal objective, as well as an outline of what it was the Accused was alleged to have done. This procedural safeguard was fundamental to the preparation of an effective defence and might have been the route to a sound application of the JCE doctrine.
The Appeals Chamber determined that the dearth of material facts pled did not matter. Presumably, it did not matter since there was no requirement that a ‘necessary relationship between the objective of a common purpose and its criminal means’ existed. It was sufficient that the ‘latter are contemplated to achieve the former’. Rather than determine whether the members of the JCE plurality worked in concert with ‘the same criminal intention’, the Appeals Chamber required only that the concerted action took place whilst each contemplated the crimes.
The introduction of contemplation into the assessment was another signpost that pointed the SCSL down the wrong path. Of course, criminal intention might reasonably be inferred from action in furtherance of criminal means. This latest manifestation of the JCE doctrine, however, also permits the criminal ‘intention’ of the Accused to be inferred from his individual action in furtherance of the non-criminal objective. It is sufficient that the Accused and their military colleagues sought to further a non-criminal objective while contemplating the crimes.
It was unsurprising that this would lead to convictions for the first two Accused, Sesay and Kallon, held responsible pursuant to this basic form of JCE for an agreement to take any actions necessary to gain and exercise power whilst contemplating crimes. It was this threshold that led to the errors in holding the third Accused, Gbao, responsible pursuant to the same basic form of JCE for crimes that were naturally foreseeable from those contemplated by the members of the plurality – even though lacking a shared intent. Remove the express protective veil of proof of intent and replace it with something much less and these are the predictable results.
At the core of both JCE I and JCE III, the accused must have the intent to commit the crime or crimes that comprise the common purpose. The criminal culpability lies in the agreement, tacit or otherwise, to a crime. Contemplation describes the case of a crime foreseen as a possible incident of the common purpose. It is the language of JCE III and not the basic form. The language of “contemplation” is far from the meaning of “intention”. In many instances there is a distinction between members who agree and those who only contemplate that crimes will occur. Contemplation is really forseeability and that is not intention, even though it may be a fact from which intent might be inferred. The very core of the rationale behind JCE liability – the requirement of a jointly held criminal purpose – has been removed. Justice Fisher’s dissenting opinion (that the majority’s approach to Gbao, “abandons the keystone of JCE liability as it exists in customary international law”) is a characterization that should be extended to all.
This new JCE is incapable of drawing the required line between the conduct of war and the furtherance of crime. Contributions to the non-criminal objective become contributions to crime with contemplation being the requisite link to all the crimes within this impractical multi-headed common purpose. It is simply not possible to make the distinctions critical to avoid condemning those without criminal intent. The assessment of liability through the contemplation threshold is but a small step from the attribution of guilt to all participants in a war. It is a reversal of the burden of proof dressed up in a fancy term: rebellious war with the requisite contemplation (or, as in the case of Gbao, something much less) being sufficient to attract liability. Could anyone sensibly argue that they fought in such a war without contemplating crime?
This legal reversal corresponded with Trial Chamber I’s factual presumption in the RUF case. As stated by the Trial Chamber – and left untouched by the Appeals Chamber – “It indeed goes without saying and the Chamber so concludes that resorting to arms to secure a total redemption and using them to topple a government which the RUF characterized as corrupt necessarily implies the resolve and determination to shed blood and commit the crimes for which the Accused are indicted”.
Accordingly, the attribution of liability in the RUF case was rendered a foregone conclusion based on a new legal construction that permitted all sorts of improper inferences and presumptions of fact. It is the engagement in war and the applicable law – not evidence – that stands as the link between the Accused and the crimes. It was the presumption of guilt that left the matter beyond doubt.
Consequently, the only question that arose during the four year trial was about the extent of the Accused’s guilt. How many crimes should be attributed to the Accused? Once again, an orthodox approach was required but abandoned. The JCE assessment that should ensure that only crimes found proven beyond a reasonable doubt to have been committed pursuant to the JCE could be attributed to the Accused was jettisoned. Instead of ascertaining whether the direct perpetrator was being used by a JCE member in furtherance of the common purpose, the Trial Chamber conducted a global assessment. It announced in one paragraph that it was “satisfied that non-members who committed crimes were sufficiently closely connected to one or more members of the joint criminal enterprise acting in furtherance of the common purpose”. The Appeals Chamber declined to address this new test or pass comment on its impact upon the assessment of individual culpability. As dryly observed by Mettraux, ‘In the brave new world augured by the Sesay judgment….If there is not enough law to find the accused guilty, pour some more’.
There will be those who might be tempted to conclude that this new form of JCE and these innovative assessments are to be welcomed. They are undoubtedly an effective tool to ensure that all who participate in an unpopular war remain within easy reach of the law. What could be wrong in making criminal adjudication this straightforward?
And yet, perhaps, there is reason to pause. The Sierra Leone conflict was heinous and individuals within and associated to the RUF were responsible for untold suffering. There are many – including Ex-President Taylor, Sesay, Kallon, to name but a few – who have cases to answer and stories to tell. Accordingly there is little to celebrate in law that abandons this enquiry or that can condemn a man to life imprisonment without evidence in support. This new JCE and the RUF approach will always find ‘guilt’ but it is incapable of anything more. As scholars Danner and Martinez observed, ‘Liability theories that distort the contribution of individual defendants to the crimes that ultimately occurred run the risk, over time, of producing a record of a violent period that fails to capture how and why the crimes occurred….The effectiveness of trials to the process of national reconciliation depends, to some extent on the perceived accuracy and fairness of the trials’. This is the danger of overreaching liabilities and convenient assessments and that ought not to be welcomed.
The author, Wayne Jordash, was lead counsel for Sesay
“Joint Criminal Enterprise” has Grown Another Tentacle!
By Dr. Guénaël Mettraux
On 26 October 2009, the Appeals Chamber of the Special Court for Sierra Leone (“SCSL”) rendered its Judgment in the case against Messrs Sesay, Kallon and Gbao.
This Judgment marks a most extraordinary development in the field of international criminal law. It bridges the concept of individual criminal responsibility with the long reviled notion of collective liability. It appears that a criminal law that is “watertight and inescapable”, as prophesied in the Tadic Jurisdictional Decision, might now have become a reality. Should the world rejoice?
In a short, but sometimes virulent, opinion, the majority of the SCSL Appeals Chamber appears to have taken the last step in a development long in the making. According to the Majority Decision, joint criminal enterprise (JCE) liability does not require that an accused should share the intent of the other participants in that JCE to commit the crimes that are said to be within its common purpose or goal. With or without that intent, a defendant charged pursuant to that theory of liability could be held criminally responsible for all the natural and foreseeable consequences of that enterprise, however remote they might have been from the defendant’s own intentions. Nor, it seems, does the defendant need to have been in agreement with the intentions of those for whose crimes he will be convicted. Unless he extracts himself early enough from that enterprise, a defendant will be held responsible for all crimes committed in pursuit of that enterprise, regardless of the fact that (a) he had no role nor influence in areas of the country where most of the crimes were committed; (b) that he had no means of contributing to those crimes; and (c) that he did not in fact contribute to those crimes. This Judgment also appears to disregard the fact that the defendant might have made only the most remote contribution to an enterprise which his own crimes are said to be part of.
Under the theory of liability developed by the SCSL, the law of “joint criminal enterprise” has the effect, not unlike a distorting mirror, of magnifying many times over the responsibility of the accused and attaching to him criminal responsibility for acts and conduct that cannot, in any reasonable sense, be said to be personally attributable to him. Through that legal prism, the individual may be held liable for the collective and not just the personal.
Referring to JCE as a form of individual criminal responsibility is little more than legal semantics that cannot hide a different reality. It is the law – not the evidence – that creates the critical linkage between the conduct of the accused and the crimes of others for which, by a sort of legally induced rippling effect, the accused will be held responsible for crimes without the requisite intent. Under that theory of liability, any degree of causality between the acts of the accused and the criminal liability for those acts, have been replaced by a legal fiction: having entered with others into a criminal agreement and having made a contribution to one aspect of that enterprise, the accused can thereafter be held responsible for all or most of its consequences, regardless of his intentions or the nature of his contribution to the overall enterprise. And where the alleged purpose of that enterprise is something as broad and sweeping as the violent takeover of a country and its resources (as is the case with the SCSL decision), the multiplying factor legally triggered by this doctrine is almost unlimited. Under such an all-encompassing theory of liability, a local drug dealer could for instance be held responsible for the country’s drug trade, a local polluter for global warming and a train conductor carrying Jews to Auschwitz for the Holocaust. Is that a development that we should applaud or fear?
In traditional legal orders, the criminal law might be compared to a measuring cup and the facts of a particular case to liquid that can be poured in that container. The measuring cup is marked with a line which, if reached on the evidence, would coincide with the attribution of criminal responsibility to the accused: by putting the facts of the case in the cup you will see if there is enough evidence to render the accused criminally responsible. In the brave new world of the Sesay judgment, the order of thing appears to have been reversed. The measuring cup is the evidence and the liquid the law. If there is not enough law to find the accused guilty, pour some more.
A brave dissenter, Judge Fisher of the United States, has denounced a legal theory of liability that “detach[es] JCE liability from the requisite mens rea” and “abandons the keystone of JCE liability as it exists in customary international law”. By eliminating the requirement for a shared common criminal purpose, she notes, the majority “dangerously expand the scope of potential JCE liability beyond the limits allowed by law”. Membership in that enterprise, she shows the majority to assume, would be sufficient to infer an intent to commit the crimes that are part of that enterprise or the foreseeability of such crimes. She notes that, to reach that conclusion, the majority had to adopt circular reasoning, inferring Gbao’s intent from his alleged membership, ignoring the absence of evidence underlying the Trial Chamber’s finding that he was in fact a participant in that enterprise, and further ignoring the absence of evidence that he significantly contributed to its furtherance. “As a result”, she concludes, the defendant “Gbao stands convicted of committing crimes which he did not intend, to which he did not significantly contribute and which were not a reasonably foreseeable consequence of the crimes he did intend”. But convicted he stands.
Judge Fisher’s powerful dissent reminds us that it is not the law that should render a man guilty of a crime, but his conduct coupled with a guilty mind. Instead, as noted by Judge Fisher, it is now the law – as defined by the majority – that renders an accused liable, not the actions of the accused.
Since the evidence that is necessary under this new theory of liability to effectively multiply the crimes for which an accused could potentially be held responsible is so limited in scope and nature, this theory has effectively rolled back the presumption of innocence to such an extent as to render it almost meaningless. It is the very sort of theory of liability on which the Nuremberg judges turned their backs: a doctrine of liability capable of making almost everyone even remotely associated with a large-scale criminal incident responsible for the whole incident, and one capable of erasing much of the stigma that must attach to personal and culpable involvement in such crimes.
It is the lack of evidential linkage between the acts of the accused and the resulting consequences for which a defendant will be held liable that undermines the credibility of this new theory. Yes, the law is capable of developing ever further to create ever more criminality. It would be foolish to think, however, that creating more criminal liability will have any preventive effect when a man is made to answer for crimes over which he has no control. It would seem better to use the law to punish what the defendant caused or culpably failed to prevent. At a minimum, this would have the merit of creating legal standards that could potentially apply to all and not just to some.
A wise Judge once said that the legacy of international criminal tribunals will be judged not by the number of convictions, but by the fairness of their proceedings. It might be right to understand that Judge as having posited that a law that punishes unfairly would not serve the legacy of these institutions. The new and latest version of the doctrine of joint criminal enterprise appears to have done just that. There would seem to be little in that conclusion to give cause to rejoice.
ICC
ICC Update: Opening of Katanga & Ngudjolo Chui Trial; Eighth Assembly of States Parties in The Hague
The trial of Germain Katanga and Mathieu Ngudjolo Chui opened on the 24 November 2009 at the ICC.
Katanga, the alleged commander of the Patriotic Resistance Force in Ituri (FRPI), and Chui, the alleged former leader of the National Integrationist Front (FNI), are accused of war crimes and crimes against humanity alleged to have been committed in the village of Bogoro in the Ituri district of eastern DRC from January to March 2003. They will be tried for alleged murder or wilful killing, inhumane acts, sexual slavery, rape, cruel or inhuman treatment, using children to participate actively in hostilities, outrages upon personal dignity, intentional attack against the civilian population, pillaging and destruction of property.
The video of the Prosecution’s opening statement, made by Luis Moreno-Ocampo, can be found here. For further commentary, see here and here.
This is the ICC’s second trial. The first was the Lubanga trial, also related to the DRC, which is still ongoing. The Bemba trial has been scheduled to start in April of next year.
In other ICC news, the Eighth Assembly of State Parties (ASP) took place at the end of November in The Hague. This was the first time since the ICC opened in 2002 that the United States attended the annual ASP. The Coalition for the International Criminal Court published daily updates of the proceedings, which can be found here.
Pictures courtesy of ICC website.
The Situation in the Republic of Kenya assigned to Pre-Trial Chamber II at the International Criminal Court
In early November the Presidency of the International Criminal Court (ICC) issued a decision assigning the situation in the Republic of Kenya to Pre-Trial Chamber II. The Presidency had received from the Prosecutor a letter, dated 5 November, 2009, indicating its intention to submit a request for the authorisation of an investigation into that situation considering that “there is a reasonable basis to proceed with an investigation into the Situation in the Republic of Kenya in relation to the post-election violence of 2007-2008”.
Prime Minister Raila Odinga on Saturday declared he would surrender to the International Criminal Court (ICC) if prosecutor Luis Moreno Ocampo builds a strong case linking him to the post-election violence. “I will not wait to be arrested. I will volunteer information,” he said. Speaking to the Sunday Nation, Mr Odinga also backed the decision by the ICC to appoint a three-judge bench to assess the Kenyan case. He said the government would fully cooperate with Mr. Ocampo in his efforts to bring the post-election violence suspects to account. Chief prosecutor Luis Moreno-Ocampo told a news conference on Saturday there was also a chance that trials could take place in Kenya, or at the ICTR in Arusha.
For more see the ICC press releases:
http://www.icc-cpi.int/NR/rdonlyres/10C0F90F-1AC5-4832-8E08-E3E4D28829F1/281179/UpdatedsheetKenya_3_2.pdf
http://www.icc-cpi.int/NR/exeres/3632E593-6C41-400E-84A8-171CDFB8B80F.htm
Of The Need For Procedural Fairness and Certainty
By Dr. Guénaël Mettraux
There is a great deal of discussion in the academic world about the comparative procedural merits of the common law versus the civil law in the context of war crimes trials. As far as practice goes, however, much of that debate is often quite unhelpful.
The practice of international criminal tribunals has to a large extent grown out of such a debate and gone beyond either procedural model. These courts and tribunals have adopted rules and practices that fit their own needs without much regard for abstract theoretical preferences for one model over the other. In other words, while this or that aspect of their procedure might resemble the common law more than the civil law or vice-versa, it was rarely if ever adopted for that reason.
It is true, however, that pockets of national resistance (often French, German or British – in that order) are trying to defend a procedural model that is considered superior to all others. Un-questioned procedural narcissism has proved rather damaging in this context as domestic solutions are sometimes ill-fitted for war crimes proceedings. In other cases, it is the attempt to combine different procedural regimes that has proved most damaging as pieces that do not fit have been made to function together sometimes resulting in the abandonment of all procedural safeguards.
What seems to matter most when deciding upon a particular procedural course are not labels, but fairness and certainty. Fairness implies that, in all cases, procedural and evidential rulings will be made and adopted in light and in accordance with the fundamental rights of the accused. It also requires that rules be applied consistently all through the proceedings and without undue distinctions between the parties.
The other main necessity of an international procedural model is “certainty”. Parties – prosecutors or defence counsel – cannot function properly, nor can they perform their duties efficiently, unless they know in advance what the “rules of the game” are. An understanding of what procedural/evidential rules are applicable to the proceedings is relevant not just to the trial process where they might, for instance, decide on the admissibility or otherwise of a particular item of evidence. They also play a fundamental role upstream as a sort of preliminary professional filter: if the parties know what regime will be applicable to the trial, they will apply that standard to assessing the material which they consider using at trial and, should they do their work diligently, set aside all the material which on its face is incapable of meeting that standard.
Another important consideration in this context pertains to the actual enforcement of the rules set by the court. Too often, procedural and evidential standards seem to exist in theory more than in practice. In war crimes cases, for instance, the requirements of relevance and reliability of evidence for the purpose of admission are often so loosely interpreted as to be almost irrelevant. The admission of “Wikipedia” postings or “YouTube” videos and the immense discrepancies that exist between material tendered by parties at trial and evidence actually relied upon in judgments are there to prove it. Too much bad evidence is presented by parties and too much of it is admitted by the courts.
In its “Directions for the Conduct of Proceedings and Testimony” issued on 20 November 2009 (attached below), Trial Chamber II of the International Criminal Court has taken steps to provide a general framework within which procedural fairness and certainty might grow. While some aspects of these directions might be open to criticism (or improvement), they provide, at the least, a great deal of clarity, certainty and (theoretical) fairness for the parties involved in those proceedings. These steps should be commended and welcomed.
It remains to be seen how these rules will be applied in practice and the extent to which the Chamber will be willing and able to enforce the standards when the time comes to do so.
ICC TC II – Directions for conduct of proceedings and testimony
ICTR
ICTR Appeals Chamber Reverses Zigiranyirazo Genocide Conviction, Enters Judgement of Acquittal
The ICTR Appeals Chamber yesterday reversed the conviction of Protais Zigiranyirazo for genocide and extermination as a crime against humanity and entered a verdict of acquittal.
On 18 December 2008, Trial Chamber III found Zigiranyirazo guilty of committing genocide and extermination as a crime against humanity by participating in a joint criminal enterprise to kill Tutsis at Kesho Hill in Gisenyi Prefecture on 8 April 1994 and sentenced him to two terms of 20 years of imprisonment. He was also found guilty of aiding and abetting genocide in relation to the killing of Tutsis at a roadblock in the Kiyovu area of Kigali and sentenced to one term of 15 years imprisonment.
The Appeals Chamber reversed Zigiranyirazo’s convictions after finding several serious factual and legal errors in the Trial Chamber’s assessment of his alibi in respect of the events on which his convictions were based.
The Chamber ordered his immediate release from the United Nations Detention Facility in Arusha, Tanzania.
Click here for the appeals judgement: Zigiranyirazo Appeal Judgement
For other commentary see here:
http://www.nytimes.com/2009/11/17/world/africa/17briefs-Rwanda.html?_r=3&emc=tnt&tntemail1=y