Monthly Archives: July 2010

Internal Investigation Opened against members of the Prosecutor’s office at the ICTY

The conduct of the OTPs of international tribunals has often been questioned with regards to witnesses. I recently blogged about the stay of proceedings in the Lubanga trial at the ICC, following the Prosecutor’s refusal to follow the court order requiring him to provide a list of certain intermediaries whose conduct in relation to witnesses had been questioned by the defense. At the Special Court for Sierra Leone, there have been allegations that prosecution witnesses were bribed to obtain their testimony.

In relation to this, I have just become aware of this order from Trial Chamber III in the Seselj case, ordering an independent amicus curiae investigations into allegations by the defendant that the Prosecutor exercised pressure on a certain number of witnesses to secure evidence against him.

The motion for contempt proceedings against, among others, Carla del Ponte was initially filed confidentially in 2007 and the Chamber had ordered “ordered a stay for purposes of ruling on the Motion for Contempt until the conclusion of the trial in order to avoid delaying the start of the trial”. However, in light of new evidence, the Chamber decided to exercise its proprio motu powers to reconsider its decision.

The Defense provided a list of alleged misconduct by the Prosecution, as illustrated in the following paragraph:

17. The Statements allege as fact that the Prosecution indeed contacted these persons and that interviews were indeed conducted by investigators working for the Prosecution. As such, the Statements mention sleep deprivation during interviews, psychological pressuring, an instance of blackmail (the investigators offered relocation in exchange for the testimony they hoped to obtain), threats (one, for example, about preparing an indictment against a witness if he refused to testify), or even illegal payments of money. According to certain Statements, the testimony produced from the interviews with the investigators from the Prosecution was not (or almost never) re-read by the persons signing it. In the Statement signed by [redacted], there is even an account of him allegedly signing the first page and the members of the Prosecution allegedly signing his initials on the other pages themselves. In the Statement signed by [redacted], there is mention that he allegedly had an interview with the members of the Prosecution in a public place. Lastly, in the Statement signed by [redacted], it is mentioned that he was allegedly poisoned.

 In light of this, the Chamber held that:

29. This information is taken quite seriously by the Chamber, which refuses to allow any doubt to fester concerning a possible violation of the rights of the Accused and concerning the investigation techniques employed by certain members of the Prosecution in this case.

 and therefore “the Chamber finds that an amicus curiae ought to investigate the Motion for Contempt and inform the Chamber whether there exist prima facie sufficient grounds to initiate a proceeding for contempt against certain members of the Prosecution.” The investigator should be designated by the Registrar (which hasn’t done it yet, to the best of my knowledge) and will be given 6 months to investigate.

Given the gravity of the alleged conduct, one would also expect the proceedings to be stayed until the conclusion of the investigation, but apparently this has not been ordered.

Hat-tip to Priyanka

Bangladesh War Crimes Tribunal: step forward for the fight against impunity, leap back for the rights of the defense…

I had completely missed the fact that Bangladesh created this year a special Tribunal to prosecute the crimes committed during the 1971 war of independence against Pakistan. The Tribunal started functioning in March this year, at the same time as Bangladesh ratified the Rome Statute, and apparently issued its first arrest warrants this week.

One aspect that caught my attention is the denomination given in one article: “International Criminal Tribunal”, and the fact that it was set up with the assistance of the UN. Are we therefore in the presence of a new hybrid Court? In fact, the denomination is not the official name of the court, and there was no formal agreement between the UN and the country, so it’s a purely national tribunal.
[UPDATE: The confusion on the name of the tribunal is due to a mistake by the JURIST: ICT stands for “International Crimes Tribunal”, not “International Criminal Tribunal”. See ICTJ report issued July 30th]
[UPDATE: The JURIST has corrected the mistake]
Another interesting aspect is the applicable law, the 1973 International Crimes (Tribunals) Act, which was amended in 2009. As pointed out by Steven Kay at ICLB, it’s an interesting and little known piece of post-Nuremberg and pre-UN war crimes tribunal legislation”.
It gives the tribunal jurisdiction over crimes against humanity, genocide, crimes against peace, violations of the Geneva Conventions, and “any other crimes under international law”, the last one raising obvious questions in respect to the principle of legality.
Apart from jurisdiction, I saw three other notable features of the procedure. 
The section on the rights of the accused is quite succinct. It reads as follows:

17. (1) During trial of an accused person he shall have the right to give any explanation relevant to the charge made against him.


(3) An accused person shall have the right to present evidence at the trial in support of his defence, and to cross-examine any witness called by the prosecution.

The accused basically has a right to defend himself against the charges. What a relief… and there is no mention of the presumption of innocence.

The section on evidence is also quite striking:

19. (1) A Tribunal shall not be bound by technical rules of evidence; and it shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and may admit any evidence, including reports and photographs published in newspapers, periodicals and magazines, films and tape-recordings and other materials as may be tendered before it, which it deems to have probative value.


(3) A Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof. 

(4) A Tribunal shall take judicial notice of official governmental documents and reports of the United Nations and its subsidiary agencies or other international bodies including non-governmental organisations.

 At least, the Act is honest about its desire for expeditiousness. I’m just a little curious as to what “non-technical procedure” is… It sounds like a nice way of saying “absence of procedure”… Also, the scope of possible judicial notice is quite wide, to say the least. The Bangladesh Government is well know for its spotless and impartial record in reporting, and the UN and NGOs always get it right. Why not just take judicial notice of the accused’s guilt (everybody probably knows he’s guilty) and not have a trial at all…

Finally, in terms of judgment and sentence (Article 20), there is no mention of the burden of proof for conviction and the Act provides for the application of the death penalty.

Once again, the rights to a fair trial take a back seat to the fight against impunity, despite the legitimacy of the latter depending in large part on the respect of the former. In this case, the UN and NGOs should distance themselves from this endeavor (I’ve done a rapid search on google, but failed to find any condemnation. If anybody cares to point me towards them if they exist? to be fair, a HRW report does call for respect of the rights of the defense and non-application of the death penalty) which appears to be a mockery of justice.

Just to be clear, I’m not suggesting that Bangladesh can’t do want it wants. If that is what the Bangladesh population want, fair enough. But the international community cannot and should not officially support it.

[UPDATE: The Criminal Law Forum has a Special Issue on the Bangladesh Tribunal this month]

[UPDATE: I was using the version of the Act before the 2009 amendments (i’ve updated the link to the law with the correct version now). The parts I analyse are however unchanged. But to be fair and comprehensive, I should point out that they did add a new provision which states that:

(2A) The Tribunal shall be independent in the exercise of its judicial functions and shall ensure fair trial.

And to think that I was doubting that in light of the rest of the Act… I’m totally reassured now…]

The First Judgment at the (un)Extraordinary Chambers in Cambodia and the question of Crimes against Humanity

The Extraordinary Chambers in the Courts of Cambodia (ECCC), which started functioning in 2006 after lengthy negotiations to try the (remaining) leaders of the Khmer Rouge Regime, issued its first Judgment today in the trial of KAING Guek Eav alias “Duch”, the former commander of the infamous S21 prison.

The Judgment was going to have a tough time to maintain the drama of the end of the trial which saw some  extraordinary (no pun intended) bickering between the co-counsels, with one of them being fired and the other suddenly launching in a virulent challenge to the jurisdiction and the legitimacy of the Chamber, despite apparently not having raised the issue previously, and then creating some confusion on the plea entered by his client.

Various comments can be made on this Judgment, for example on victim reparations, and on sentencing. I’d like to briefly focus on its discussion of crimes against humanity.

Indeed, One question which was going to be an issue from the start was the content of customary law at the time the crimes were committed, more specifically in relation to crimes against humanity and the link with the existence of an armed conflict. If today, there is really no doubt, after the case-law of the ad hoc tribunals and the Statute of the ICC, that crimes against humanity can be committed in time of peace, things are not so clear for1975-1979, which is the scope of the temporal jurisdiction of the ECCC.

The Chamber finds that the nexus was no longer required in 1975. Maybe it is right, but it is not convincing. Indeed, the reasoning is just as poor as it was in Tadic. I reproduce the (concise) argumentation of the Chamber for the sake of clarity:

291. In particular, the Chamber notes that Article 5 of the ECCC Law does not require a link between crimes against humanity and armed conflict. Although Article 6(c) of the Nuremberg Charter required a nexus between crimes against humanity and armed conflict, such a nexus was not included in the 1945 Control Council Law No. 10, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the 1954 International Law Commission’s Draft Code of Offenses against the Peace and Security of Mankind, the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, and the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid. The notion of armed conflict also does not form part of the current-day customary definition of crimes against humanity.

292. International tribunals that have subsequently considered the issue have also found that the notion of crimes against humanity existed independently from that of armed conflict under customary international law prior to 1975. The ICTY Appeals Chamber has stated that the armed conflict requirement in Article 6(c) of the Nuremberg Charter was a jurisdictional issue, thus implying that it was not required under customary international law even in 1945. The Grand Chamber of the European Court of Human Rights has noted that, while the nexus with armed conflict initially formed part of the customary definition of crimes against humanity, this nexus may no longer have been relevant as of 1956. The Group of Experts for Cambodia appointed pursuant to General Assembly Resolution 52/135 similarly concluded that “[t]he bond between crimes against humanity and armed conflict appears to have been severed by 1975.” The Chamber therefore considers that the lack of any nexus with armed conflict in Article 5 of the ECCC Law comports with the customary definition of crimes against humanity during the 1975 to 1979 period.

Let’s analyse this in order:

  • Control Council Law N°10: Yes, the definition of crimes against humanity does not include the nexus with armed conflict (Article II.1.a). However, article I makes the London agreement, which enacts the Nuremberg Statute and which does contain the nexus, an “integral part of this Law”. So it is not that clear. Especially as the Nuremberg Principles adopted by the ILC reproduce the Charter of Nuremberg, with the armed conflict nexus, not Control Council Law N°10…
  • 1948 Genocide Convention: even if conceptually, I’m in favor of considering genocide as a sub-category of Crimes against Humanity, it was not legally conceived in this way at the time. Genocide is a discrete crime and the fact that the armed conflict nexus is not contained in the definition of genocide is not relevant for knowing if it is still contained in the definition of crimes against humanity. And even if one considers that Genocide is a sub-category of crimes against humanity, the disappearance of the nexus for one form of a crime, does not logically necessarily indicate disappearance for the totality.
  • 1954 Code of Crimes: does not even mention crimes against humanity!
  • 1968 Convention on non applicability of Statute of limitations: more tricky, as it, at the same time, says that it can be committed both in time of war and in time of peace, and says that it is defined by the Nuremberg Charter which does include the nexus. 
  • 1973 Convention on Apartheid: Same as for genocide, the absence of the nexus for one occurrence of crimes against humanity, does not logically imply the absence of the nexus for all crimes against humanity. You could even argue that it the specific nature of Apartheid that justifies the exclusion of the nexus. Also, the Convention only came into force in 1976, so one can wonder at the customary nature of the content of the treaty at that point in time…  
  • Tadic: The Appeals Chamber in Tadic deals with the issue in the same way. Affirming with little evidence that the nexus no longer exists. More specifically, it considers that it “was peculiar to the jurisdiction of the Nuremberg Tribunal” and that “there is no logical or legal basis for this requirement” (§140). For one, it doesn’t explain why it was “peculiar”. Second of all, the question of the “logical” basis is not relevant for a court of law the function of which is to apply the law, not question its logic. I could point out several instances of lack of logic in the drafting of the ICC Statute, but it doesn’t mean that Judges should be allowed to change it as they see fit. And thirdly, linked to the second point, the “legal” basis is that it is in the law! The drafters of the Nuremberg Statute decided to put the nexus there, so that constitutes the legal basis for the nexus.
  • ECHR and group of experts: nothing much to add to this, apart from 1) questioning the relevance of these statements for the ECCC and 2) pointing out that “may no longer have been relevant” and “appears to have been severed” hardly seems like strong enough evidence to rely on to establish the content of a customary norm with sufficient certainty as to conform with the principle of legality.

But even if one were to accept these references, what is notable is the absence of evidence relating to the traditional components of customary law. I was taught in university that you needed to establish both opinio juris and state practice in order to identify the existence of a customary rule, not international case law or pronouncements by experts. However, the expression “opinio juris” appears nowhere in the reasoning and there is no mention of state practice whatsoever at this point in the argumentation (Eichmann is given as the sole example of  State practice for prosecution of crimes against humanity earlier on in the Judgment). The ECCC therefore managed, and it is quite a feat, to be even less convincing than Tadic, which at least formally claimed that the nexus “has been abandoned in subsequent State practice with respect to crimes against humanity”, without however quoting even one relevant national criminal code…

I suppose that after the slamming of JCE by the ECCC Pre-Trial Chamber in the Ieng Sary Case, I had unreasonable expectations, but it turns out that in fact, there is nothing extraordinary about the Extraordinary Chambers in the Courts of Cambodia…

Some Additional Thoughts on the ICJ Advisory Opinion

I’ve read through the main opinion and the other opinions and it confirms my initial impressions during the issuance of the Opinion yesterday afternoon.

On jurisdiction, I was a little puzzled by the length of the discussion on the question of whether the Court should exercise its discretion in relation to the question. It all seemed quite basic stuff, given past case-law of the Court which has generally said that 1) the fact that the Security Council is dealing with something doesn’t mean another organ can’t discuss it and 2) the political dimensions of a question do not prevent a legal analysis. However, some dissenting opinions (Bennouna, Skotnikov, Keith, Tomka) actually thought that the Court should have declined to answer the question.

On the scope of the question, I’m generally not in disagreement with the opinion. Some separate opinions consider that it was too narrow. Judge Simma said it applied too strictly a “tired” version of the Lotus logic that what is not proscribed is allowed. For him, there is a more public law aspect to international law today, and the Court should have done a more thorough search of the relevant law on independence before answering the specific question. Judge Trindade, in a separate opinion 1,5 times the size of the majority opinion, launched himself in a emotional, but in my opinion ultimately irrelevant plea for taking into account “human suffering” as a criteria for independence. Equally, Judge Yussuf thought the Court could have taken the opportunity to define the scope of self-determination in a post-colonial world. Others (Koroma) thought that it was still too broad and that the Court went beyond its powers in considering that when the GA explicitly mentioned the authors of the UDI as the “Provisional Institutions of Self-Government of Kosovo”, they actually didn’t mean that, and wanted to know who the authors are. I would tend to agree with that actually. The fact, as the Court points out, that this was not discussed in the GA debates, doesn’t necessarily mean that it was an open issue, it might just mean that it was a settled issue. By second guessing the GA like it does, the Court is opening itself to the criticism of why it is re-interpreting the question in this instance, and not in another (for example, by saying that the GA really wanted to know if Kosovo was an independent State).

Which brings me to my main point of contention with the decision: that the authors of the UDI were not acting in their official capacity as Members of the Assembly. The reasoning is just as unconvincing as I thought. The authors of the declaration met in the Assembly, called a special session of that Assembly, and met as the democratically elected representatives of the people in elections set up under the control of the Constitutional Framework, which is the only basis for their right to be present in the assembly to make the UDI in the first place. But they are still considered as private citizens by the Court, based on their intent to be so considered. How can you evaluate whether someone is bound by a legal framework based on the subjective desire not to be bound?
In this sense, I can only agree with Koroma:

5. It is also question-begging to identify the authors of the unilateral declaration of independence on the basis of their perceived intent, for it predetermines the very answer the Court is trying to develop: there can be no question that the authors wish to be perceived as the legitimate, democratically elected leaders of the newly-independent Kosovo, but their subjective intent does not make it so. Relying on such intent leads to absurd results, as any given group ⎯ secessionists, insurgents could circumvent international norms specifically targeting them by claiming to have reorganized themselves under another name. Under an intent-oriented approach, such groups merely have to show that they intended to be someone else when carrying out a given act, and that act would no longer be subject to international law specifically developed to prevent it.

 And Bennouna:

44. The facts that the authors of the Declaration, members of the Assembly of the Provisional Institutions of Self-Government of Kosovo, cited the breakdown of negotiations and that they did not intend to act within the framework of the interim régime of self-government (Advisory Opinion, paragraph 105) do not by themselves change the legal nature of an act adopted by the Assembly of the Provisional Institutions of Self-Government of Kosovo. In law, it is not merely because an institution has adopted an act exceeding its powers (ultra vires) that the legal bond between the institution and the act is broken. In such a case, the institution must be considered to be in breach of the legal framework that justifies and legitimizes it.

45. Similarly, it is not because the Assembly trespassed on the powers of the Special Representative (Advisory Opinion, paragraph 106) by involving itself in matters of Kosovo’s external relations that it must be considered as acting in a different capacity or as an entity no longer related to the Provisional Institutions of Self-Government of Kosovo. Here as well, the Assembly simply committed an act which is illegal under international law.

Although I’m the first one to defend the ICJ against those who claim that it says what it didn’t say, in this part of the decision, i’m struggling to see how the reliance of the ICJ on the intent of the authors of the UDI, and is not an implicit endorsement of the declaration itself.

One final comment on the applicable law. I’ve read in some comments already that the Constitutional Framework and UNMIK resolutions should not necessarily be considered as applicable international law because after all they are intended to take effect only within a particular domestic system of law”. I would actually side with the ICJ on that one. The question is not the setting (all law is meant to be applied in a specific setting), it’s the nature of the norm and the applicable legal order. For me, a territory under UN administration cannot be seen as a national legal order. There’s no “national” at this point, or “domestic”. Moreover, the source of legal, judicial and even constitutional authority in Kosovo clearly derived from a Security Council Resolution. I don’t find it therefore scandalous to conclude that the norms adopted in this context are at least international enough, and sufficiently integrated in the international legal order, to be considered as relevant international law for the ICJ. But I’ll have to consider this “hybrid” issue further in my PhD (forthcoming…).

And to conclude on a little poetic note, showing that law needn’t necessarily be dry, I love the final line of Bennouna’s opinion:

Such declarations are no more than foam on the tide of time; they cannot allow the past to be forgotten nor a future to be built on fragments of the present. 

ICJ Kosovo Opinion Files for Download

The ICJ Website still seems to be unavailable. Here is a link to the opinion, and the separate and/or dissenting opinions by Judges Bennouna, Koroma, Skotnikov, Keith, Sepulveda-Amor, Trindade, Yusuf, Simma and Tomka.