A busy week in ICL: STL Judge rebels on contempt, ICC stays clear of Gaza Flotilla and ICTY releases Seselj

It seems that the international tribunals have waited for one of the rare occasions when I’m mostly offline for travel purposes to issue some interesting decisions. Indeed, I am currently attending the ICTR Legacy conference in Arusha. If I were not as humble as I am, I would suggest that they did so to avoid that I blog about these decisions…

I hope to write more about these decisions when I return to The Hague, but this is what happened this week, in a nutshell. I’m sorry for the paucity of hyperlinks, but it’s not convenient right now to add more.

1) The ICC OTP has decided not to open an investigation in the Gaza Flotilla incident, following the referral it got from the Comoros a few years back. On a rapid reading of the decision, I broadly agree with the outcome. The OTP has stayed clear from the concerns I expressed at the time on the policy consequences of framing a situation in such a narrow way as the Comoros did. Two brief comments: 1) I’m not entirely convinced by the OTP determination of the relevant armed conflict for the purposes of war crimes. 2) I’m not sure that the OTP needed to enter in the comparison with Abu Garda in relation to gravity because that was a case, not a whole situation. But more on this later, hopefully.

2) Second of all, in a really interesting development, a contempt judge at the Special Tribunal for Lebanon has refused to follow an appeals panel decision to extent contempt jurisdiction to legal persons. Readers of this blog will already know what I thought of the terribly argued appeals decision. Judge Lettieri echoes my concerns about the limits of teleological interpretation and its violation of the principle of legality. In a long decision, Judge Lettieri systematically refutes the reasoning of the Appeals Panel and ultimately considers, not only that he is not bound by the decision, which was technically adopted in a different case, but that he probably had a obligation not to follow it, to ensure the consistency of international law on the issue. It’s a fascinating process to follow and I wait for the next Appeals Panel response to this very amazing example of judicial dialogue.

3) Finally, today, the Trial Chamber in the Seselj case at the ICTY has ordered, proprio motu, the provisional release of the accused for health reasons. Again, readers of this blog will have followed the events which led to the case dragging on, with, after the removal of Judge Harhoff, the nomination of a new judge in November 2013, meant to take the time to familiarize himself with the case. While he initially asked for 6 months, this period was recently extended to June 2015 at the request of Judge Niang, this information having been conveniently drowned in the 2014 ICTY Annual Report. In relation to provisional release, earlier this year, Seselj refused a proposal for provisional release… so this time around, the Chamber simply did not ask for his opinion, nor that of the Prosecutor! It appears that Judge Niang has dissented, but his dissent is not available yet.

All in all, three interesting decisions which will most certainly be the subject of some commentary in the coming day, here, as elsewhere. Stay tuned!