Category Archives: icty

Sljivancanin Review Judgment at the ICTY

Posted on December 8, 2010 | 3 comments
[UPDATE: here is a link to the Review Judgment, which should be online soon]

It’s a hectic day for international tribunals. The ICC held the confirmation of charges hearing for two sudanese rebels, Banda and Jerbo (see press release). More to the north, the ICTY Appeals Chamber was rendering its Review Judgment in the Sljivancanin case. Unfortunately, both took place at the same time. Because confirmation of charges take hours, I watched the ICTY hearing and will check out the confirmation of charges later tonight.

I’ve blogged several times on the ongoing review proceedings of the Appeals Judgment in the Sljivancanin case. Last December, the Appeals Chamber dismissed the motion for revision of the Appeals Judgment by which it had reversed one of the findings of acquital. In July this year, the Appeals Chamber granted the motion to review the Appeals Chamber Judgment based on new facts. Basically, the AC had considered, based on circumstantial evidence, that the Defendant must have been given elements in a conversation that would prove the required mens rea for aiding and abetting murder as a war crime. The new witness that came forward alleged that no such information was exchanged in that specific  conversation. The following comments are based on the hearing (here is the Judgment summary).
The AC first rejected all the Prosecution submissions contesting the credibility of witness and found that the new fact did in fact prove that the required mens rea was not present for the crime under consideration. The AC therefore vacated the additionationl conviction, in order to prevent a miscarriage of justice. The AC then quashed the sentence of 17 years imposed in the Appeals Judgment, reducing it to 10 years. There is a dissenting opinion of Judge Pocar (probably calling for remanding the case to the trial chamber for sentencing…) and separate opinions from judges Gunay and Meron.
The first thing to point out, which is already notable in itself for international tribunals, is that everything went as planned. No “however” coming at a late stage of the judgment to justify not taking into account the new evidence, no procedural sidestep to justify a longer prison sentence. All in a all, a simple and logical judgment.
Hearing it, I couldn’t help reflect once more on the mess this procedure turned out to be, even if the miscarriage of justice was avoided in the end, because of the actions of the AC. As I pointed out in previous blogs, we have just witnessed the compound effect of what are, in my opinion, debatable legal choices. 1) I don’t think that the AC should be allowed to reverse acquittals 2) if it is allowed to do so, it should not be allowed to “re-judge” the case, and it should be remanded to the trial chamber which is the trier of facts and 3) we have clearly seen the limits of the use of “circumstantial evidence” and “reasonable inferrence” ; indeed, in effect we just witnessed a de facto reversal of the presumption of innocence and corresponding burden of proof, with the AC making a finding based on nothing, and the Defendant having to provide evidence to prove his innocence…
One last point is the question of sentencing. It seems to be such an arbitrary procedure. The Presiding judge clearly states that the sentence for the torture conviction took into account the additional murder conviction, thus justifying today’s reduction. But we have two different crimes and I believe there shouldn’t be such a link between the two sentences. It’s about time, as I’ve said before, that we stop pretending that there is no hierarchy in international crimes, which in effect creates arbitrariness, and call for a clear scale of sentences in relation to each crime, as any mature system of criminal law should contain.
[UPDATE: There is of course the issue of the powers of the AC itself to increase a sentence imposed by the Trial Chamber. As pointed out by Judge Pocar in his (consistent) dissent on this issue, it is contrary to fundamental human rights for the AC to have this power, because there is no appeal of the new sentence by the Defendant. He would have therefore confirmed the original 5 year sentence, without any increase.]

3 Comments

Posted in icty, Sljivancanin

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

Posted on July 29, 2010 | 1 comment

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

1 Comment

Posted in contempt, icty, Seselj

Partial retrial ordered in Haradinaj

Posted on July 21, 2010 | 3 comments

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?

3 Comments

Posted in fair trial, Haradinaj, icty

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

Posted on July 14, 2010 | Leave a comment


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.

Leave a comment

Posted in fair trial, icty, Sjlivancanin

Dead…and Guilty: Decision in Delic finally reached!

Posted on June 29, 2010 | 2 comments

Over 9 weeks after the death of Rasim Delic during the appellate procedure at the ICTY, the Appeals Chamber has finally reached a decision on the termination of the proceedings. It’s an interesting case, because it is the first time that an appellate body of an international criminal tribunal has to deal with such a situation. In all other cases, the person had died before completion of trial proceedings. Both Delic’s lawyer and the prosecutor had filed motions in support of the continuation of the proceedings, based on the interests of justice and of the family’s right to know the truth.
Several legal issues of interest had to be considered, which I briefly laid down at the time of his death. Basically, 1) should the proceedings continue and 2) if they are terminated, what happens to the trial judgment.

In its decision, the Appeals Chamber decides to terminate the proceedings and render the trial judgment final.
On the first point, it argues for the termination based on the personal jurisdiction of the Court, citing examples from other tribunals having dealt with this issue.
On the second point, the Chamber first shows that there is no uniform practice among civil law and common law traditions that would enable it to establish a general principle of law applicable to the specific situation. It therefore does an analysis based on the nature of the appellate proceedings, where contrary to trial, the presumption of innocence does not apply. It therefore concludes that (§15):

“Having found that the death of the appellant results in the termination of the proceedings and given that no appeal judgment can be rendered in this case, nothing can undermine the finality of the Trial Judgment. As a consequence, the Trial Judgment shall be considered final”.

It’s not a surprising decision on the substance, and the Chamber did make an effort to provide reasoned arguments, in difficult circumstances where, as often, judges have been left to deal with poor drafting and a most amazing normative void. There are however some questions that can still be raised on the argumentation.

For one, the Chamber draws no link whatsoever between the two aspects of the decision, the termination of the proceedings and the finality of the trial judgment. It decides to terminate the proceedings, and then in effect uses that finding as a reason to declare the judgment final. But the question of the presumption of innocence is also central to the termination of proceedings. Indeed, when trial chambers in various courts have terminated proceedings, the person benefited from the presumption of innocence and therefore died innocent. That is not the case at the appellate stage, according to the Appeals Chamber’s reading of the ICTY framework. This is a fundamental difference and should have at least warranted some discussion on the part of the judges.

Second of all, one can question the link between the lack of presumption of innocence at the appellate level and the finality of the trial judgment. One could argue that it is mostly a procedural question, with a different distribution of the burden and standard of proof at this stage of the proceedings, and has no impact on the finality of the trial judgment, especially as the whole point of the Appeal is that the trial judgment is not final. It’s a false “but for” causality approach. “But for” the Appeal, the trial judgment would be final. But that is always the case, even if there were application of the presumption of innocence at the appellate stage! For example, where a Prosecutor has appealed an acquittal, the death of the defendant could still be said to finalize the trial judgment, despite the presumption of innocence certainly applying to these crimes for which the acquittal was pronounced… I therefore think the Court should have found another basis for its ruling. And no, I don’t have any other ideas, given that I personally would have put an end to the proceedings ab initio. This would be based on a global concept of criminal proceedings that include both Trial and Appeal phases, both degrees of jurisdiction being actually recognised by human rights instruments as part of fair trial rights, their conditional application being solely dependent on the exercise of the right by the accused, which he did here.

Third of all, the Appeals Chamber touches upon a persistent grey area, namely the nature of the appellate proceedings. It might not be a trial de novo and the presumption of innocence might not apply, as the Appeals Chamber claims, but how is that compatible with the systematic practice of the Chamber to review evidence in a similar fashion to a Trial Chamber, increase sentences and even sometimes reverse “not guilty” findings, where you can’t really argue that the presumption of innocence doesn’t apply! There are several ways in dealing with these difficulties, especially in the last situation, by for example denying a right of appeal for the prosecutor in cases of not guilty verdicts, or requiring automatic remanding to a trial chamber, as is the case for most systems where the Appeals Chamber has a similar role. Right now, the Chamber has devised a system where it can have its cake and eat it, depending on the flavor…

Finally, and more generally, the 9 weeks it has taken to issue a 9 page decision (including the procedural history) essentially based on legal opinion in the absence of statutory rules, following the 18 months during which the appeals judgment was not rendered in what was not the most complicated case in the history of international justice, is a further testimony to the Tribunal’s chronic incapacity to render justice in a efficient way in conformity with fundamental fair trial requirements. You could even say that if the Appeals Chamber had done its job correctly the issue of Delic’s death might not have been an issue at all…
And the worst part is that the tribunals don’t even seem to acknowledge this difficulty, hiding, among other things, behind the complexity of the situations. This recent decision at the ICTR is interesting in that respect, where more than 9 years of detention before the trial judgment and more than 2 years without an Appeals Judgment being rendered was not considered undue delay! See particularly the dissenting opinion where Judge Short clearly finds that it is undue delay, and specifically considers the appalling personnel management of the ICTR, which assigns too many cases to the judges, thus preventing speedy justice.

2 Comments

Posted in delic, ictr, icty