Monthly Archives: July 2010

Live from ICJ: Kosovo declaration of independence not in violation of international law, but the Court DOES NOT validate Kosovo independence!

I’m at the ICJ right now with my iphone, so sorry for the typos.
The Court just finished delivering its advisory opinion on the Kosovo declaration of independence.
Having established jurisdiction, it Unsurprisingly adopted a very narrow reading of the question, considering  that it was not asked:
1) to evaluate the legal consequences of declaration
2) whether Kosovo has actually obtained Statehood
3) whether the recognition by other States was legal
4) whether there is a general right under international law to declare independence or secession.
Therefore: the question is really whether the specific declaration was in accordance with international law (both general and specific)?

The Court found that in general international law, there is no prohibition of declarations of independence and that issues of territorial sovereignty or secession are not relevant within the strict boundaries of the question to be answered on the legality of the declaration.

Moving to the lex specialis of SC Res. 1244 and the Constitutional Framework, the Court considered that they were the international law basis for the authority of Kosovo institutions and the boundaries of their powers, at the time of the declaration of independence.

Moving to the interpretation of this applicable international law, it was meant at a temporary solution for the stabilisation of Kosovo.

Illogically, the Court then considers the author of the declaration BEFORE analysing whether the lex specialis contained a clear prohibition of declaration of independence. Here the judgment appears a little hazy (i’ll have to to read the decision). The Court seems to consider the subjective perception of the authors of the declaration as not acting under the established legal framework. But whether you are bound by a legal framework doesn’t depend on your subjective desire to be or not to be bound. It’s an objective test. This is the whole point of ultra vires challenges! The Court in any case finds that the authors were just individuals, rather than the Kosovo Assembly! I’m not convinced at the reasoning at this point. If the French MPs meet in the French Parliament, to which they have access by virtue of their parliamentary Status, i think there is a presumption that they are acting in their official capacity.
Coming back to the contet of the lex specialis, the Court considered that it is silent as to the final Status of Kosovo, suggesting negotiation rather than requiring it, thus not explicitly excluding unilateral declarations. Moreover, a Resolution is only binding on its recipients, which don’t include the authors of the declaration as
defined above.

All in all, not a surprising decision. The jurisdictional part and the framing of the question were to be expected. It also makes some interesting comments on the relationship between the various organs of the UN. The key point turned out to be the exact author of the declaration. The conclusion in itself is not that shocking, but the reasoning seems a little poor. In any case, as it stands, the Opinion isn’t very useful. Basically, any group of random individuals can declare independence without violating international law… Fantastic…

[UPDATE: the press is characteristically getting it wrong, with for example, Le Monde’s headline saying that the ICJ “validates Kosovo Independence”, the BCC‘s headline being, in a slightly less inaccurate way that “Kosovo Independence not illegal”, or CNN saying that “Kosovo Independence Legal”… Unsurprinsingly, Serbian websites are more accurate… ]

Is Chad really under an obligation to arrest Bashir?

The news today has been filled with reports about the visit of President of Sudan, Omar Bashir, to Chad, and calls for Chad, which is a State Party to the ICC to arrest him. Beyond any discussion of the political opportunity of such an act, every commentary seems to take for granted that Chad is under a legal obligation to do so.

CNN has a “Court official” (probably OTP…) on the record saying that:

Chad is legally obliged to arrest Omar al-Bashir and hand him over to the International Criminal Court.

According to Human Rights Watch:

Chad should not flout its obligations to arrest al-Bashir if he enters Chad. 

 Same tune at Amnesty International:

If it were not to arrest him, Chad would violate its obligations under the Rome Statute of the International Criminal Court, which it ratified in November 2006.

 I’m not sure that’s actually true. Sure, the Statute, at Article 86 provides that (my emphasis):

States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.

 However, “in accordance with the provisions of the Statute”, there is in fact no automatic obligation to cooperate in relation to the execution of an arrest warrant. Indeed, Article 89 provides that the Court must make a request for cooperation to a State. The request must contain specific information outlined in Article 91 (such as a copy of the arrest warrant). Only then does the Statute provide (Article 89(1)) that (my emphasis):

States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.

To my knowledge, there hasn’t been such a request.

Second of all, even if the ICC had made a request for cooperation, the fact that Sudan is not a State Party can trigger the application of Article 98(1), according to which:

The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.

It’s arguable that Bashir, as an acting head of State, does benefit from diplomatic immunity, in application of the ICJ Arrest Warrant Case (for a discussion of the immunity question in the Bashir case, see here). If that were the case, not only would Chad not be under an obligation to cooperate, but the request itself would be contrary to the Statute.

So, all in all it’s far less obvious than claimed, that Chad is in fact under an automatic obligation to arrest and surrender Bashir. Of course, in a week where the Prosecutor himself has publicly considered that the issuance of an arrest warrant is proof of guilt (See commentaries of this by William Schabas and Kevin John Heller), one stops being surprised by poor legal argumentation…

Partial retrial ordered in Haradinaj

The ICTY Appeals Chamber just released its Judgment in the Haradinaj, Balaj and Brahimaj case. The Trial Chamber, in its April 2008 Judgment had acquitted the first two, and convicted the third for two counts of torture. The Appeals Chamber decided, with the President Judge Robinson dissenting, to partially quash the two acquittals and order a partial re-trial, because:

49. […] the Trial Chamber failed to take sufficient steps to counter the witness intimidation that permeated the trial and, in particular, to facilitate the Prosecution’s requests to secure the testimony of Kabashi and the other witness. Given the potential importance of these witnesses to the Prosecution’s case, the Appeals Chamber finds that, in the context of this case [of systematic witness intimidation], the error undermined the fairness of the proceedings as guaranteed by the Statute and Rules and resulted in a miscarriage of justice.

Several comments about this decision.

For one, the basis for the motion by the Prosecutor was a “breach of the Prosecution’s right to a fair trial”. But since when does a Prosecutor have fair trial rights? He’s an organ of the judicial system. Fair Trial rights exist to protect the defendants in their relation with the judiciary, not one organ of the judiciary against another organ of the judiciary. As Patrick Robinson puts it in his dissenting opinion:

17. By virtue of the burden placed on the Prosecution to prove the guilt of the accused person beyond reasonable doubt, the position of the Prosecution is in many ways different from the position of the accused person. Thus, the Prosecution has duties, which the Defence does not have, and the Defence has rights, which the Prosecution does not have. Properly analysed, the relationship between the Prosecution and Defence is not symmetrical; it is, because of the aforementioned burden, asymmetrical.

This is yet another example of a misapplication of human rights principles due to the decontextualisation of the reason of their existence and therefore a complete misunderstanding of their ethos and telos. In a similar fashion, the ICC Prosecutor had claimed a “right of appeal” when leave to appeal had been refused in the early witness participation decisions in the DRC situations. The Appeals Chamber at the time had rejected the motion.
It should be pointed out, however, that in the course of its reasoning, the Chamber does not really take up this idea of “prosecution fair trial rights”. It does so once:

46. this decision again inappropriately prioritised logistical considerations over the Prosecution’s right to a fair trial.

[UPDATE: The Chamber issued on 23 July a corrigendum where it says that in paragraph 46, it meant to say “fairness of the proceedings” and that the mistake is due to a “clerical error”. Blame it on the clerks… I’m sure that explains Tadic as well…]

but refers more generally to the “fairness of the proceedings”, as illustrated by the above quoted passage. This is far less controversial, and shows that the issue could have been solved without opening the can of worms of Prosecution rights. And it therefore begs the question of why the Prosecution framed the question in this way in the first place. One worrying conclusion is that the OTP (and the Chamber when it picks up on it that one time) didn’t see the semantic difference between “interests” (which the Prosecutor has), “rights” (which the Prosecutor doesn’t have) and “the fairness of the proceedings” (as a general principle of good administration of justice). You would expect professional jurists to know that words have a meaning…

The Appeals Chamber missed an opportunity to explicitly reject the Prosecutor’s reasoning. What it does here is a little more confusing, because it agrees with the Prosecutor, but doesn’t clearly indicate that it is so doing on a different (and more accurate) reasoning, as you generally see in decisions. [Reading the judgment too fast the first time around, I actually got confused and, in the absence of a clear rejection of the OTP’s reasoning, attributed the Prosecution argument to the Appeals Chamber. Thank you to my anonymous commentator for setting the record straight! And in my defense, the Chamber does refer to “Prosecution fair trial rights” once and Robinson himself must have considered the majority decision unclear, because he takes upon himself to clarify the situation.]

A problematic aspect is the standard of review. Given that the Trial Chamber was exercising a discretionary power, it has a certain leeway in its decision-making which in turn usually means that the Appeals Chamber only interferes when there is an obvious misuse of discretion. However, what the Appeals Chamber does here is substitute what it would have done if it had been the Trial Chamber. This is beyond the scope of the function of the Appeals Chamber, as highlighted in Judge Robinson’s dissent:

7. The question of how many extensions to grant, whether one, two, or one hundred, or whether to stay or adjourn the proceedings, relates to the detailed day-to-day management of the case and is a matter best determined by the Trial Chamber in light of all the relevant circumstances. This is not a judgement for the Appeals Chamber to make. I would have granted more than three extensions or adjourned or stayed the proceedings, and the Majority itself might have done the same, but that is irrelevant. For it is not the appellate function to determine the sufficiency of the extensions granted by the Trial Chamber absent a clear indication of an abuse of the Trial Chamber’s discretion. And were we to do so, we would simply be substituting our own exercise of discretion for that of the Trial Chamber without any proper basis.

In effect, it appears from the Judgment that the Trial Chamber did in fact take into account the circumstances of the case and the importance of the witnesses by granting three consecutive extensions to the Prosecutor in order to allow him to secure witness testimony, so clearly, on the face of it, it did take into account relevant factors for the exercise of its discretion.
More generally, given the length of proceedings at the ICTY, the idea that the Prosecutor is not given enough time seems slightly puzzling. In this case, the indictments were issued in March 2005 (so presumably, the investigation had already been going on for a while), it took 2 years for the trial to begin in March 2007, and it lasted about 10 months, until January 2008. Even accounting for the specific difficulties of international investigations in difficult circumstances, you’d expect the Prosecutor to have had enough time to prepare a good case in that time and that its solidity would not depend on a last minute hiccup with a couple of witnesses… and even in this event, there comes a moment when it is legitimate for a Trial Chamber to move the proceedings forward in the interests of the defendants and in light of the right to be judged without undue delay. In the absence of proof of witness intimidation or tampering, at some reasonable point in time, the Defendant should not bear the consequences of the Prosecution’s failure to secure sufficient evidence for a conviction.

A final general comment. Once again, we have a dissenting opinion which seems to make more sense than the majority decision. I’m not familiar enough with all the case-law of the tribunal to claim that dissenters always get it right, but my empirical experience is that I generally agree with the dissents (Schomburg on JCE, Pocar on reversal of acquitals). I think it might have to do with the fact that once a judge has taken the step towards dissent, he frees himself of the shackles of the internal politics of consensus which leads to sometimes inconsistently argued collective decisions, as illustrated in the present case, whereas dissenting opinions will have more chances of being intellectually consistent, and therefore make more sense. Any thoughts on that?

Another Fair Trial issue for today: Sljivancanin Appeals Judgment to be revised

In one of the ongoing sagas of this blog, and on a day apparently dedicated to fair trial issues (see previous post), the Appeals Chamber of the ICTY issued a decision today granting the motion to review of the Appeals Judgment in the Slivancanin case. The Judgment had controversially added, with two judges dissenting, a new conviction for aiding and abetting murder as a violation of the laws and customs of war. As I commented in the past, a first request for review for initially rejected. However, Counsel made a new motion based on the existence of new evidence, which was heard early June. It is this new fact as defined by article 26 of the Statute that compels the Chamber to allow the possible revision of the Judgment. 
The new fact, which is witness evidence that the accused did not in fact express the mens rea for the crime in a conversation, contrary to what had been found by the Appeals Chamber. In accepting this, the Chamber finds that (p. 4):

Although the Panic New Fact was discoverable through due diligence by Sljivančanin’s counsel, review of the Mrksic and Sljivančanin Appeal Judgement is necessary because the impact of the Panic New Fact, if proved, is such that to ignore it would lead to a miscarriage of justice.

This is of course perfectly reasonable… but is a little ironic given the way the case unfolded. Indeed, the Trial Chamber had drawn no conclusion from the conversation between Mrksic and Sljivancanin under consideration. It was only the Appeals Chamber which inferred from the conversation that Mrkšić must have told Šljivančanin that he had withdrawn the “JNA” protection from the prisoners of war held at Ovčara, subsequently “relied on these findings to conclude that Sljivančanin possessed the mens rea for aiding and abetting murder as a violation of the laws or customs of war” (p. 3). How could the defense be expected to provide evidence on an event that the Trial Chamber had not even found as being relevant? It is only with the Appeals Judgment, where the judges are basically reviewing evidence as if they were the trial chamber, that the Defense can actually know what evidence it has to contest. That’s hardly compliant with fair trial rights!
The granting of the motion is obviously a step in the right direction for making sure those rights are respected, but it doesn’t remedy the profound flaw of a process which allows the Appeals Chamber to de facto review evidence as a Trial Chamber would and reverse acquittals without any possible appeal from the new conviction in clear contradiction with human rights standards.

When is a "Fair Trial" really a "Fair Trial" ?

Commenting on a recent decision by PTC I at the ICC, William Schabas invites comments on the powers of the Chamber in relation to media statements by members of the OTP. In a nuthsell:

The Chamber chastised Beatrice le Frapper du Hellen, who is a senior official in the Office of the Prosecutor, for remarks that she made in an interview with the blog.
The Chamber referred to the fact that much of the Lubanga trial has not been open to the public.Accordingly, the public needs to be able to trust the published statements of those involved in the case, as reflecting, in a suitably balanced way, the evidence that has been heard and the decisions that have been made. It is important that in media statements there is a clear and accurate description as to whether issues that are reported have been decided or are still unresolved. Most importantly, and as a matter of professional ethics a party to proceedings is expected not to misrepresent the evidence, to misdescribe the functions of the parties or the Chamber, or to suggest or imply without proper foundation that anyone in the case, including the accused, has misbehaved.
The Chamber said that Beatrice le Frapper du Hellen had not abided by these principles.’in a manner that is prejudicial to the ongoing proceedings (in the sense that they tend to prejudice the public’s understanding of the trial), which tends to bring the Court into disrepute’. It said it would take no further action than to express ‘the strongest disapproval of the content of this interview’ but warned that ‘if objectionable public statements of this kind are repeated the Chamber will not hesitate to take appropriate action against the party responsible’.

And the problem as identified by Professor Schabas is as follows:

This issue is not expressly regulated by the Rome Statute or the Rules of Procedure and Evidence, and we may well ask on what the Trial Chamber might base its authority to ‘take appropriate action’ in the case of ‘objectionable public statements’. This is part of a larger issue that is looming with respect to the implied or inherent powers of the judges at the Court. In last week’s decision on the stay in Lubanga, the Trial Chamber seemed to think it had the power to order the Prosecutor to do certain things, such as reveal names of ‘intermediaries’. But does it really have such a power? I think that its authority to stay proceedings in the event of a flagrant denial of the right to a fair trial cannot be questioned, and to that extent the decision certainly has a legal basis. But that is because the Chamber controls the trial itself. But can it make orders, and sanction people, for activity outside of the courtroom? Where does this power come from? And if it exists, where does it end? Should I, as an ICC-obsessed blogger, start to worry that I might too be subject to ‘appropriate action’ if I make an ‘objectionable public statement’? I am inclined to think that it could stay the proceedings if a third party – such as myself – made an ‘objectionable public statement’ that drastically compromised the fairness of the trial itself, but that it can do no more than that.

On principle, I don’t find it shocking that within its powers to ensure that fair trial requirements are met, a Chamber could exercise control over the conduct of the parties, in, and out of court. However, the key issue here, before dealing with the exact scope of that control, is what do we mean by “fair trial”? In my opinion, any conduct should affect “fair trial” in a strict procedural interpretation. For example, if the OTP was paying defense witnesses not to testify, or using intermediaries that provide false evidence.
This being said, in this decision, I believe they have much too broad an approach to the notion of “fair trial”. Fair trial is to be evaluated within the proceedings, not outside. This is not a trial by jury, where the the members of the jury might be influenced by unbalanced press reports. The Judges at the ICC are professionals that in theory should not be affected by what a party might say in the press. The “public’s understanding of the trial” is not a component of “fair trial”. Indeed, whether the general public gets a correct picture of the proceedings (whatever that means… given that perceptions of a trial will always vary depending on the viewer’s original bias) is none of the judges’ business, even if from a broader perspective, one can only wish that fair reports of the trial be available to the public.

With this in mind, I don’t see anything that affects the fair trial of Lubanga in the interview given. Of course the OTP is going to say that its witnesses are reliable, if not it wouldn’t have chosen them in the first place. For similar reasons, it is not surprising that the OTP will express trust towards its intermediaries. It is the opposite that would be astonishing. And there’s nothing shocking in the OTP expressing its belief that Lubanga is guilty, if not they wouldn’t have initiated the case in the first place. Moreover, nothing in those statements undermine the power of the Chamber to effectively determine whether the the witnesses are reliable, the intermediaries trustworthy and Lubanga innocent or guilty. Each one is within his institutional role.
This doesn’t mean that one cannot regret the rhetorical shortcuts adopted by OTP members, most notably Mr. Ocampo (recall when he compared Bashir reelection to Hitler’s election…). These statements are certainly careless, inappropriate and possibly give a warped image of the ICC, but they are not strictly speaking fair trial issues. If made in Court, these statements could be questioned by the bench, based on basic principles of civility, rather than fair trial requirements. This is what happened in Sierra Leone where David Crane was chastised for referring to “Dante’s inferno” and the “hounds of hell” in one of his opening statements.
As for third parties, given my strict approach to fair trial, I do not believe that the critical blog musings of William Schabas or myself could constitute a violation of fair trial requirements and therefore taken into account for a stay of proceedings. If not, all academic or NGO activity on an ongoing case should come to a stop until the verdict… More generally, given the global media exposure of these trials, having such a broad approach to fair trial as seems to be adopted by the Trial Chamber, would mean that no defendant in an international criminal court could be said to be able to get a fair trial because they are nearly always portrayed as guilty in the press, in clear violation of the presumption of innocence…

In relation to the exact powers of the Chamber if there is a violation of fair trial requirements, I don’t think there is a general rule. It depends on the nature of the violation. For example, in the case of the intermediaries, I believe there is indeed a case to be made that the Chamber has power to order the OTP to provide the names, given its general powers in insuring disclosure of relevant materials for the adequate preparation of the defense case. For others conducts not covered by explicit powers of the Chambers, I think that the only power would indeed be a stay of proceedings until the conduct stops. Disciplinary measures could only be taken by the Chamber in the specific case of the offences against the administration of justice listed in Article 70 of the Statute. In other cases, another body, such as the Presidency or the ASP, would be competent to deal with orders and sanctions. As for statements, given my strict approach to fair trial, I think they would rarely constitute a violation of that right in the first place, but if they did, a stay of proceedings would equally be the only available tool for the Chamber.