Bring your Appeal to School Week: International Justice marches on for Lubanga, Bemba and Sljivancanin

Posted on December 10, 2009 | Leave a comment

Early December has been quite busy in the Hague international tribunals. The Karadzic flying circus has gotten all the attention in recent weeks, but other decisions require at least being mentionned.

At the ICC, on 2 December, the Appeals Chamber reversed the decision on the interim release of Jean-Pierre Bemba issued last August and where a single judge had decided that changed circumstances allowed for such a release. In its Judgment, the Appeals Chamber found that the pre-trial chamber had misapplied the conditions under which a person could be considered for interim release. We won’t go into the details of the reversal, which is in line with the case-law of the ICC up to now, namely, that it is extremely unlikely that any defendant will ever be granted interim release, given the conditions imposed and that the Court, although pretending to apply Human Rights standards, has in effect reversed the principle of liberty and imposes incarceration as a rule.
More specifically, by taking into account the gravity of the crime and possible sentence, a condition which is not contained in article 58, the Appeals Chamber tips the balance in favour of detention. Indeed, All crimes are “grave”. That is the whole point of the ICC in the first place. But the day-to-day application of the Statute leads to the fact that we have to accept a hierarchy of gravity between the crimes if the use of gravity within the Statute is to have any sense. Generally, gravity is a continuing thorn is the side of the Judges at the ICC. This is obvious in the interim release decisions, but also in the admissibility case-law where pre-trial, trial and appeal chamber have in effect given up on putting into effect article 17.1)d) of the Statute and left a total discretion to the prosecutor on the evaluation of gravity.

Still at the ICC, the Appeals Chamber yesterday, the 8 December, reversed the Trial Chamber decision on the legal recharacterisation of facts, on which I had commented on in a previous post. The Trial Chamber had decided to use Regulation 55(2) of the Regulations of the Court to pronounce of the possible change in the legal characterisation of the facts in order to include charges of sexual violence in the indictment. The Appeals Judgment is fairly uncontroversial, in the sense that it reverses a criticised decision, but its reasoning is not beyond reproach.
It first finds that Regulation 55 is not in principle incompatible with the Statute of the Court, especially with Article 61(9) on the modification of the charges after the confirmation of charges, or with general principles of international law.
The Appeals Chamber however considers that the Trial Chamber misinterpreted the Regulation because it cannot be read as allowing the Trial Chamber to take into account in its decision facts and circumstances not contained in the charges, as prescribed in article 74(2) of the Statute. Moreover, according to the Appeals Chamber, the addition of new facts and circumstances can only be done in accordance with article 61(9), which gives the prosecutor power to do so. In the words of the Appeals Chamber:

The Trial Chamber’s interpretation of Regulation 55 would circumvent article 61 (9) of the Statute and would blur the distinction between the two provisions. As the Prosecutor notes, the incorporation of new facts and circumstances into the subject matter of the trial would alter the fundamental scope of the trial. The Appeals Chamber observes that it is the Prosecutor who, pursuant to article 54 (1) of the Statute, is tasked with the investigation of crimes under the jurisdiction of the Court and who, pursuant to article 61 (1) and (3) of the Statute, proffers charges against suspects. To give the Trial Chamber the power to extend proprio motu the scope of a trial to facts and circumstances not alleged by the Prosecutor would be contrary to the distribution of powers under the Statute.

In deciding that Regulation 55 is not incompatible with article 61(9), but by interpreting article 61(9) as it does, the Appeals Chambers is threading a tight interpetrative rope. Indeed, 1) the article only mentions new charges, not new facts and circumstances and 2) the distinction between the two is difficult in practice. Indeed, what would be the point of a recharacterisation if it didn’t affect the charges? Even if trial judges were to recharacterise facts already contained in the charges, it would probably affect the charges themselves, for example by affecting the criminal liability, from direct responsibility to command responsibility. In effect, I do think there is some tension between the two provisions.
Which brings us back to the broader overarching problem of the interaction of civil law and common law in the founding documents. As I pointed out in my earlier post, Article 61(9) is a common law approach, giving discretion to the Prosecutor, whereas Regulation 55 is civil law inspired by giving more power to the judges. Despite the wishful thinking of many, I don’t believe that the two approaches are compatible when drafted this way on a case-by-case basis with no clear and explicit relationship between the two.
Finally, a short comment on prosecutorial strategy. This is not discussed in the Appeal, but the Trial Chamber decision was a clear result of the Prosecutor wanting to have his cake and eat it. Indeed, a lot of attention has been devoted to the role of victims in that decision or the tendencies of the Judges, but the Prosecutor is also partly to blame. He chose to prosecute “only” the enlisting of child soldiers, but all through the trial, as early as his opening statement, he insisted on the conditions under which these children operated, especially in relation to sexual abuse. Despite it not being directly relevant, this was obviously done to give some extra gravitas  to the proceedings and the strategy nearly backfired. Maybe the Prosecutor will show more caution in the future.

Finally, on the same date, 8 December, the Appeals Chamber of the ICTY dismissed the motion filed on behalf of Sljivancanin for the Judgment rendered by the Appeals Chamber. In that Judgment, the Appeals Chamber had reversed the finding of acquittal against the Defendant on one of the counts and consequently imposed a sentence in relation to the finding of guilt. Judge Pocar dissented, considering that once the error of the Trial Chamber identified, the case should have been remitted the case to the Trial Chamber for a re-evaluation of the facts in light of the correct application of the law.
The main issue, as argued carefully in the motion, was whether the reversal of the finding of acquittal by the Appeals Chamber and subsequent sentencing, violated the right of Appeal of the Defendant as recognised in Article 14(5) of the ICCPR. The Appeals Chamber, in a short and undocumented decision declines to even consider the motion, considering that “the Appeals Chamber has no power to reconsider its final Judgments”.
You can read the motion if you want more details on the reasoning of the Defendant’s counsel, but generally I find the decision puzzling. Let’s not insist on the whole idea that an acquittal can be appealed by the prosecutor in the first place. I would tend to agree that this should be barred, as in the US constitution, if only because the State (or institution) has unlimited means to get things right the first time, as opposed to the Defence, but apparently, the practice at the ad hoc tribunals is different. What is specifically puzzling here is that, on the face of it, it does appear like a clear violation of the right of Appeal as protected by Human Rights Standards. The Appeals Chamber clearly embarks on a very specific factual analysis of the evidence which is more of a First Instance role than an Appelate role, and apparently didn’t recall witnesses or allow “adversarial” discussion. As pointed out by Pocar in his dissent:

The Appeals Chamber enters a conviction based on the trial record without having observed the witness testimony or the presentation of evidence, factors which may be particularly important in assessing witness credibility. In so doing, the Appeals Chamber enters, for the first time in this case, findings on matters which are primarily within the responsibility of the Trial Chamber, such as finding on issues of fact that are crucial to a verdict of guilt. Such findings are now destined to remain unchallenged, in clear violation of Sljivancanin’s right to appeal against convictions.

I don’t see how it would not be in the interests of justice for the Appeals Chamber (with the exact same composition as in the impugned Judgment… hum…) to pronounce on the motion, especially when out of the 5 appelate judges, one (Pocar) wanted to send the case back to the Trial Chamber and another (Vaz) actually concurred with the finding of acquittal at the trial level.

All in all, a good week for commentators where international justice marches on, irrespective of the rights of Defence (Bemba, Sljivancanin) and setting aside the requirements of consistency in the intepretation of criminal statutes (Lubanga)…

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Posted in Bemba, ICC, icty, lubanga, prosecutorial discretion, rights of the defence

Guest Post: in Favour of Trials in Absentia in International Tribunals

Posted on November 24, 2009 | 1 comment

I have long had conversations with people about the issue of trials in absentia and have generally encountered scepticism. This question arose again recently (if indirectly) in the Karadzic decision to appoint standby counsel for the defendant should he decide to continue to “obstruct the proceedings” and prompts me to share some views on the matter.

I would like to point out from the start that I’m not defending that trials in abstentia are a perfect solution or even generally preferable to having trials in the presence of the accused. That would be preposterous. Of course the rights of the defence will be better protected (at least in theory) with the accused present. What I’m arguing is that the practice should not be excluded ab initio as a procedural tool in some situations. Most international institutions have excluded it and I think that’s a mistake.

for one, I have alway been unconvinced by the Human Rights arguments for their total rejection. For Human Rights lawyers, the practice is considered contrary to fundamental human rights. I don’t think so. None of the international Human Rights documents explicitely prevent this practice, to the best of my knoweldge. The European Court of Human Rights has in fact said that “Proceedings held in an accused’s absence are not in principle incompatible with the Convention“, but imposed some strict conditions; such as the obligation to inform the accused, the right to appeal and be represented by counsel or the right to fresh assessement of the charges. Other international institutions have considered this issue and, although they show caution about the practice, they don’t clearly ban it.
In fact, I think this is another case where the human rights hegemonic discourse is trying to wrap in universality what is a question of legal culture. Common law jurisdictions will generally be more unlikely to suppport this practice, given the importance of the adversarial procedure. On the contrary, the civil law inquisitorial system, where the judge has considerably more power in exercising control over the proceedings, makes the practice less objectionable.

Despite this, most international tribunals don’t provide for trials in absentia. There is only a possibility of removing a defendant from the proceedings if there is too much disruption or if he has waived his right to be present. There are however two interesting exceptions to this trend. First of all, the Special Tribunal for Lebanon is the first international tribunal to explicitely allow trials in absentia. This is of course due to the influence of lebanese civil law on the drafting of the Statute and indicates that claims suggesting its total ban are not entirely justified. The second exception, which is not really one, but does relate to the issue, is the possibility in the Rome statute for the confirmation of charges hearings to be held in the absence of the accused, “when the person has: (a) Waived his or her right to be present; or (b) Fled or cannot be found and all reasonable steps have been taken to secure his or her appearance before the Court and to inform the person of the charges and that a hearing to confirm those charges will be held” (Article 61(2)). This allows the proceedings to continue despite the continued flight of the accused and is a symbolic step in holding “someone” accountable, and, from a political perspective, to put pressure on states to arrest the person under indictment.

Which brings us to our final considerations. Once established that trials in absentia are not in fact contrary to international law, under certain procedural conditions, why argue in their favour from a policy point of view? Those who are opposed to them usually put forward the argument that it will decredibilize the international tribunal by giving an impression of unfairness and bias agains the accused. That is certainly true in theory. It is considerably more satisfying for the image of justice in the eyes of the victims and the world community to actually see the defendant in the dock.
However, it is not a totally satisfying argument.Indeed, for one, even when the Defendant is present, the extreme politisation of these international trials anyway creates a manichean debate with supporters and detractors of international tribunals not budging from their position, whatever the reality. The practice itself of the tribunals, as illustrated by the recent Karadzic fiasco, shows that the perception of bias will exist irrespective of the presence of the accused.

Finally, I believe that there comes a tipping point where the interests of justice and efficiency outweigh the desired situation of having the defendant present. Indeed, once everything has been done to secure the presence of the accused and sufficient time given for his arrest, does the institution really lose more of its credibility by just waiting and showing the world how powerless it is, or by starting the trial anyway, with the required guidelines being satisfied? Given the extremely symbolic nature of international prosecutions, I’m not sure it would be more detrimental to the reputation of the ICC, for example, to start the trial of the remaining LRA leaders (provided the complementarity principle has been correctly applied), rather than have to announce one day that they’ve in fact all be killed by government forces (or, more likely, that they killed each other…) and that there will never be a trial.

There comes a moment where some process is probably preferable to no process at all. I don’t provide here an answer to when exactly that might happen, but the option should at least be on the table.

PS: You might be wondering who the “guest”, in the “guest post” is… in fact, there isn’t any guest, I just thought it looked very professional, like all the other blogs who get some prestigious academic or practictionner to comment on various issues… that might happen in the future (please contact me should you wish to contribute), but given today’s topic, I find it quite fitting to have a guest post in abstentia…

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Posted in fair trial, ICC, icty, karadzic, trial in abstentia

More drama at the ICTY: bring on the popcorn for the Karadzic trial!

Posted on November 5, 2009 | 9 comments

In the latest episode of the trial, the ICTY Trial Chamber just decided to appoint counsel to Karadzic following a first week of trial where he chose not to attend the proceedings on account of not having had enough time to prepare… and to postpone the commencement of trial until march. Moreover:

In the present circumstances, considering the fundamental nature of the right to selfrepresentation, which cannot be diminished lightly, and in accordance with the principle of proportionality, the Trial Chamber finds it necessary to instruct the Registrar to appoint counsel, who will begin immediately to prepare him or herself to represent the interests of the Accused when the trial resumes, if that should be required. Notwithstanding the appointment of counsel for this specific purpose, the Accused will continue to represent himself, including by dealing with the day-to-day matters that arise, such as the filing of motions and responses to motions filed by the Prosecution, and further preparing himself for the trial.

the defendant will therefore continue to defend himself (even at the recommencement of trial), the counsel only coming in if there is further obstruction…

We won’t go into the legal technicalities of the issues, dealt with elsewhere. Just a few comments.
If I’m undestanding this correctly, their refusal to allocate more time to the defendant led him to refusing to attend his trial, therefore crossing the judges who, to punish him, give me an extra four months for his appointed counsel to prepare for trial, while still allowing Karadzic to continue representing himself for the time-being, thus somewhat giving him what he asked for in the first place… makes sense.
Moreover, this does not really solve the issue of his presence at trial. The drafters of the ICTY Statute decided not to have trials in abstentia. One can argue the pros and cons of that (I would actually be in favour of having those… blame my French legal training… more on this some other time…). But that’s the situation right now. Given that, contrary to the ICTR, the ICTY did not adopt a rule allowing it to proceed in the absence of the accused, I don’t really see on what basis they would continue the trial even with an appointed counsel. The decision seems to suggest that the defendant might forfeit his right to be present by refusing to be present. This is the reasoning behind in abstentia trials and cannot be sustained here (argument in absurdum here, but if this is the case, let’s apply it to Mladic and start his trial tomorrow). Karadzic did not say “go ahead guys, i can’t be bothered attending”. He is making a procedural statement (if a somewhat overdramatic one) on the fair conduct of proceedings. That is not the same as forfeiting his right to attend.
More generally, whatever the position one adopts on this issue, the chamber has put itself between a PR rock and a communications hard place. What kind of mixed message is it sending out, by trying to be tough, and then by threatening the defendant with what he asked for? On the other hand, this is a semantic way of sorts to save face. They couldn’t really say “ok, you win this time, but be careful, we’re watching you”, which is in effect what they have done.

And now, bow your heads and let’s have one minute silence for the completion strategy…

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Posted in fair trial, icty, karadzic, trial in abstentia

Spot the Errors… the ICC, "established by the UN in 1993"…

Posted on September 23, 2009 | 1 comment

I know I am only giving it totally undeserved publicity by posting it here, but the recent column in the Jerusalem Post by Seth Frantzman on the ICC and international justice is just too good to be true.

It presents the ICC as a UN court established in 1993, which “has also prosecuted war crimes in the former Yugoslavia and Rwanda through special tribunals”, with no Appeals system and an American judge on the bench (did I miss the USA joining the ICC???).
It is not only inaccurate, it is also biased (the two being unfortunately frequent travel companions). It glorifies Nuremberg… which had the same flaws as supposedly identified in the ICC. The author wrongly states that the ICC has no appeal system, which was indeed the case in Nuremberg, and criticises the ICC for not doing trials by jury, when neither Nuremberg, nor even Israel in the Eichmann case provided jury trials!

Once you get over the total shock of how many factual mistakes there are in the text, it actually makes for some amusing reading. It should be standard reading in both law school and journalist students as a masterclass in what not to do…

Feel free to contact the editors of the Jpost to express your shame/anguish/sadness/joy…

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Posted in eichmann, ICC

Holding the ICC review conference in Kampala: On the edge of the cliff… and taking a step forward!

Posted on September 2, 2009 | 1 comment

This is old news for anybody following these issues, but I’ve been wanting to make a few comments for some time now on the organisation of the Review Conference of the ICC in Kampala next year. This decision was taken last November by the ASP.
Uganda is one of the situations under consideration by the ICC, along with DRC, Darfur and the Central African Republic. Which means that out of the 110 countries which are party to the Rome Statute, the ASP felt the need to choose one the only 3 State parties the Prosecutor is investigating (Soudan not being a State party). This is, to say the least, a strange decision.

We have been told that this is to appease relations with Africa, in light of criticism that the ICC has focused so far exclusively on African States, despite having received communications from all over the world, including the ones that he publicly dissmissed from Venezuela and Irak. This distrust in the institution became very clear and public when the African Union adopted a resolution stating that it would not cooperate with the ICC on the Bashir Arrest Warrant until the the Security Council considered whether to defer the case under its article 16 powers. In this context, the traditional debates on the victimisation of Africa and western neo-colonialism find renewed strength.

However, this reasoning is unconvincing.
For one, it should be recalled that, except for the case of Sudan, all the situations under consideration have been self-referrals coming from the governement themselves, including Ivory Coast, who made a declaration under article 12(3) accepting the jurisdiction of the court without being a party. It seems a little disingenuine to complain afterwards. Given this situation, the real problem is not so much the exclusive focus on Africa, but the systematic refusal by the OTP to exercise his proprio motu powers to open an investigation when it hasn’t be referred by a State or the Security Council.
Second of all, it is difficult to speak of neo-colonialism when the ICC, through its prosecutorial policy, is actually indirectly supporting the people in power. Indeed, both in DRC and Uganda, arrest warrants have been issued essentially against political rebel groups, not the governement. Even in CAR, the Prosecutor managed to do Kabila a favour by indicting and arresting Jean-Pierre Bemba, his strongest political opponent.
Third of all, the arguments of neo-colonialism and power struggle have some truth to them, but have been misused to the point of losing most of their credibility. It is often a fig-leaf to hide african leaders’ incapacity to implement democratic reforms and more generally to allow them not to ever take responsibility for their own failings. The international community has screwed up time and again in Africa, but this is no excuse or reason for Africans to compound these errors with their own actions.

Beyond the general political dimension, and to get back to the review conference, choosing Uganda is yet again another PR slip, after the famous one where the arrest warrants where made public by the OTP in a joint press conference with Museveni. Uganda is the only situation where nobody was arrested so far. Even Sudan sent a token case to the Hague, with Abu Garda making a voluntary appearance before the Court to face three counts of war crimes (whether attacking and killing 12 AU soldiers and appropriating some material is a crime of sufficient gravity is another problem… suprisingly, the PTC declined to consider the issue… more on this as the case evolves).
The ASP should have taken a stand, in terms of perceptions of neutrality in relation to Uganda. The whole “situation” is under investigation, which means potentially government officials and even Museveni. Does the ICTY hold meetings in Karadzic’s holiday home? It is not neo-colonialism to state that Museveni has contributed to the instability of the whole region since his election in 1986 (DRC, Rwanda, Sudan), that he has manipulated the ICC in the context of the ongoing civil war and that he is still trying to do so today. It is bad taste to reward him with a review conference. The ICC is on the edge of the cliff in its relation to Africa, and has decided to take a step forward…

PS: I have been told that in fact, the ASP had no other choice, because Uganda was the only candidate for the organisation. Why not organise it with the UN in that case?

PPS: Our political comments do not imply that we pass judgment on the legal choices made by the Prosecutor. There would of course be a lot to say about the choices of the OTP in its cases and charges, but let’s keep this debate for another time…

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Posted in ICC, Kampala, Review Conference, Uganda