Category Archives: rights of the defence

The ICC Katanga Judgment: A Commentary (part 2): Regulation 55 and the modes of liability

This is the second post on the Katanga judgment. The first one, commenting on rules of interpretation of the Rome Statute, the Investigation and the definition of the crimes, can be found here.

In this post, I will discuss the issue of the legal recharacterization that was done by the Chamber and the definition of the modes of liability it adopted.

1. The legal recharacterization under Regulation 55

  • Why Regulation 55 shouldn’t be there in the first place

For those who are not aware of this issue, a short summary of the problem. When drafting the Regulations of the Court, the judges inserted a provision by which:

1. In its decision under article 74, the Chamber may change the legal characterisation of facts to accord with the crimes under articles 6, 7 or 8, or to accord with the form of participation of the accused under articles 25 and 28, without exceeding the facts and circumstances described in the charges and any amendments to the charges.

2. If, at any time during the trial, it appears to the Chamber that the legal characterisation of facts may be subject to change, the Chamber shall give notice to the participants of such a possibility and having heard the evidence, shall, at an appropriate stage of the proceedings, give the participants the opportunity to make oral or written submissions. The Chamber may suspend the hearing to ensure that the participants have adequate time and facilities for effective preparation or, if necessary, it may order a hearing to consider all matters relevant to the proposed change.

Continue reading

The ICC Katanga Judgment: A Commentary (part 1): Investigation, Interpretation and The Crimes

On 7 March 2014, Germain Katanga, a warlord from the DRC, was convicted as an accomplice for war crimes and crimes against humanity in the third Judgment issued by the International Criminal Court. The Judgment was rendered on a number of issues only by  majority, with a dissenting opinion by Judge van den Wyngaert and a concurring opinion by the other two judges.

One of the main reasons why this judgment was expected is that it is the final chapter (pending appeal) of a somewhat controversial process. Indeed, Katanga was initially tried as a co-perpetrator with Chui. However, in November 2012, a month before the judgment, during deliberations, a majority of the trial chamber 1) severed the cases  2) announced that the judgment for Chui would take place as planned (he was acquitted) and 3) informed the defense that there might be a legal recharacterization of the charges. This effectively prolonged the trial of Katanga by more than a year, ending with his conviction under the new legal characterization, whereas he would have been acquitted along with Chui had it not happened.

This is obviously the biggest difficulty with this judgment, but it features other considerations which merit some attention. I offered my first impressions of the judgment after the summary was read out in open court. In the next few days, I will suggest some more detailed considerations, based on plowing through the actual judgment and dissent. A few caveats. First, readers should note that the judgment itself is in French, so I do no reproduce the relevant parts that I discuss, nor did I have time to translate. I try, as much as possible, to indicate paragraph or page numbers so that you can check for yourselves. Second, what follows is obviously a mere selection of issues discussed in the judgment and there is no claim to exhaustivity.

So, let’s start. In this first post, I want to discuss the issue of the quality of the Prosecutor’s investigation, the rules of interpretation and the definition of the crimes. Continue reading

The Return of the Sequel to the Specific Direction Saga: Prosecutor files for reconsideration of Perisic Appeals Judgment

The year started with a bang a couple of weeks ago when a differently composed Appeals Chamber bench in Sainovic claimed that the Appeals Chamber in Perisic had erred in considering that specific direction was part of the elements of aiding and abetting liability. There is no need in coming back at this point on the substance of the discussion which has been debated to death in the past year.

In any case, in light of Sainovic, the ICTY OTP has now filed for reconsideration in the Perisic case itself. As noted by Kevin Jon Heller, there is absolutely no legal basis for such a motion, as it would really be a stretch to consider that the Sainovic judgment would constitute a “new fact” allowing for reconsideration. Sainovic is only evidence that Judges at the ICTY have decided to fight their personal battles in their judgments, which is most certainly something to be concerned about, but not a reason for reconsideration.

The motion is however perfect for teaching purposes, because it summarizes in a few lines the confusion about the object and purpose of ICL and how it has been used to trump defense rights.

Using a decision relating to the possibility of reconsideration in the exceptional case of a “miscarriage of justice”, the Prosecutor reasons in the following way:

Reconsideration is the only option for the Appeals Chamber to rectify the manifest miscarriage of justice to the tens of thousands of men, women and children killed or injured in Sarajevo and Srebrenica and their families resulting from the erroneous Perisic decision.

This reasoning is disturbing in a number of ways. Not only does it reflect the general victim-centred reasoning of some people in ICL, as pointed out by Kevin, it illustrates more specifically how there is an increased confusion between the actual rights of the actual parties to the proceedings and the metaphorical “rights” of those having an interest in the trial. The concept of miscarriage of justice is not a moral metaphysical concept meant to cater to the disappointment of court observers, be they the direct victims of crimes. It is a specific concept meant to protect the rights of the accused against possible abuses in the judicial process.

It is therefore particularly disgraceful that one of the organs of the Court would try and use a concept created to protect the accused, against the accused. This is of course not a new practice of international tribunals. Examples abound of decisions where a right of the defense was opposed to the accused to defeat the exercise of another right ( for eg, right against self-incrimination raised against Norman at the SCSL when he himself wanted to testify before the TRC, and more generally the right to be tried without undue delay sometimes raised by judges when defendants ask for more time to prepare for their defense).

This is an unfortunate new episode in this Perisic saga (and its Harhoff spinoff). With most movies, the sequels tend to drop in quality compared to the first one in the series, and this is no different. Some might say that recent decisions, such as in Seselj, where the case is plowing on despite the disqualification of Harhoff, or motions such as the one discussed here, tarnish the legacy of the ICTY, I don’t share this somewhat implicit optimistic account of the legacy in the first place.

Unfortunately, recent media-gathering examples such Perisic, Seselj or Taylor (or Kenya at the ICC), are merely symptomatic of the normal workings of international tribunals. A more accurate way to put it would be that the courts are now just polishing the coffin that is the legacy of international justice, at least in relation to the protection of the rights of the defense.

More on this most certainly in the Katanga Judgment to be released on Friday

A Visual Summary of my Thoughts on the Continued Harhoff/Meron "scandal"

This is arguably my shortest blog post ever, but, in addition to my more lenghty thoughts on the subject (here and here), I wanted to share my feeling about a lot of what has been written, and continues to be written on the Harhoff storm in a teacup.

H/T to Jens for mentioning the existence of this cartoon and to Thomas for sending it to me.

Follow up on the reactions to the Harhoff letter

[The first part of this post is here]

The letter by Judge Harhoff alledging that the President of the ICTY, Judge Meron, was acting on orders from the US in recent aquittals, or at least adopting legal positions to support US positions, has received some commentary since it was made public yesterday, from blogs such as this one and EJIL Talk!, but also in the New York Times, where an article reveals that a number of officials and judges at that ICTY share Judge Harhoff’s skepticism and doubts about Judge Meron, to the point where another candidate has come forward to oppose the re-election of the latter at the Presidency. If these claims by the NY Times article are true, it seems that, if anything, Judge Harhoff has opened the floodgates of violating confidential information at the ICTY. Again, I don’t know if this is a good or bad thing, but it finally gives outside observers something concrete to work with.

But, in relation to the substance, none of the comments I’ve read so far actually bring me any closer to knowing what went on. I’m seeing language typical of conspiracy theories: “hopefully we’ll get evidence, and if there is no evidence, that means that someone is hiding things from us”. It’s a win-win situation for the conspirationists, because evidence either way can be construed as evidence of the existence of the conspiration. Also typical, is that there is a subtle shift of the burden of proof, as if those who don’t buy into the conspiracy have to bring elements to disprove it. That’s not how things should work. How do you prove that a spaceship did not land somewhere in the desert in the 1960s, leading to unhealthy experiments on alien beings?

In light of this, the only reasonable thing to do would be to just stop speculating until something concrete, other than a mere moral bias on the part of the critics (often relying on a somewhat simplistic, if not plainly wrong, analysis of the preceding case law), is revealed.

This being said, and because the temptation is just too big not to continue to debate pointlessly about this issue, I want to just share three thoughts that came up from reading the NY Times article.

First of all, there is the idea that there is a shift towards more deference to the military in the interpretation of the law in recent decisions. That might be true, but I would say that the anomaly was the previous shift away from that. For many years now, Human Rights activists have managed to convince way too many  people that International Humanitarian Law was merely a wartime branch of human rights law aimed only at protecting civilians, to the exclusion of any other consideration. But that was never true. IHL has always been a balance between the protection of non-combattants and military necessity. Forgetting the second branch of the balance has led to what Darryl Robinson has perfectly and brilliantly described as the identity crisis of international criminal law. In my view, it is therefore those who orchestrated that shift that had a political agenda, rather than those who would be returning this law to the traditional balance at the heart of IHL.

Second of all, there is this double idea that things didn’t go well in Simatovic, because Judge Picard was not given enough time to write her dissent and because Orie was alledgedly also under influence. These are two different things. The first one is testimony, if true, of the fact that the ICTY has been under pressure, notably from the Security Council, for some years now to wind down its activities through the implementation of a rigorous completion strategy. And commentators have not generally been complaining about that. On the contrary, the ICTY has been regularly faulted for taking way too long to go through the trial process and the judgment drafting. It might be unfair that some judges today have to speed things up because previous generations of their colleagues were moving along at a leasurely pace, but I don’t see the link with the issue at hand. As for Judge Orie, it should be pointed out that he appended to the Simatovic Judgment a rather surprising separate opinion that responds directly to Judge Picard’s dissent and defends the majority judgment. I find this practice a little puzzling, but, beyond that, if Judge Orie was really under external pressure, why would he do that? It is one thing to give in to the pressure in the majority judgment, it is another entirely to go out on a limb to actually write a separate opinion with his sole name on it to defend the majority. This seems to indicate that, whatever one thinks of the majority Judgement, Judge Orie sincerely believes in it.

Finally, I am once again appalled at the narrative being constructed at the moment of the ICTY being a lenient court letting “murderers” get away. That is simply not true. On a long term perspective, the ICTY case law has developed principles that cast the net very wide, rather than very narrowly, through, for example, Joint Criminal Entreprise, command responsibility, or the adoption of rules of evidence that would make any national criminal lawyer laugh and cringe at the same time. Even in the short term,   nobody seems to recall that just a few weeks ago, the ICTY found 6 defendants guilty in the Prlic case, with a strong dissent from the Presiding Judge on the lack of evidence of a Joint Criminal Entreprise. Why is nobody talking about that?

At the end of the day, if we strip away the argumentative niceties and the unsubstantiated conspiracy theories, there remains a rather mundane, but fundamental dimension on international criminal justice: its bias towards convictions and the blatant disrespect for the rights of the defense and the principle of legality. When I hear certain people talk about international criminal justice, I sometimes wonder why they bother advocating for international criminal courts at all, when they seem intimately convinced that all defendants that will appear before them are necessarily guilty. I would have more respect for these activists if they stopped pretending to have a liberal agenda and clearly stated that we should dispense with the whole masquerade that are international trials to directly go to the sentencing phase, where the bad guys will finally get what they deserve.