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Addressing the African Union’s Proposal to Allow the UN General Assembly to Defer ICC Prosecutions

Published on October 30, 2010        Author: 

One of the aspects of the stand-off between the African Union (AU) and the International Criminal Court (ICC) regarding the proceedings against Sudanese President Omar Al Bashir is the call by AU for the United Nations Security Council to invoke Article 16 of the ICC Statute and request a deferral of the ICC prosecution of Bashir. The organs of the AU have made this call several times in the past 18 months but the Security Council has not acceded to this request. This has led to a feeling on the part of some African States that African concerns are being marginalised and that the structure of the UN Security Council does not take sufficient account of their interests. At a Ministerial meeting of African parties to the ICC Statute, held last November, African States recommended that Article 16 of the ICC Statute be amended to allow the UN General Assembly to make requests for deferrals of ICC investigations and prosecutions. The obvious aim of the proposal was to dilute the power of the SC with regard to ICC prosecutions. The proposed amendment reads as follows:

No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.

A State with jurisdiction over a situation before the Court may request the UN Security Council to defer a matter before the Court as provided for … above.

Where the UN Security Council fails to decide on the request by the state concerned within six (6) months of receipt of the request, the requesting Party may request the UN General Assembly to assume the Security Council’s responsibility under para 1 consistent with Resolution 377(v) of the UN General Assembly.

Although the proposal was made in the lead up to the Kampala review conference which considered some amendments to the ICC Statute, it was made too late to be on the agenda for that conference. The recommendation was made just days before the 8th session of the meeting of the Assembly of States Parties (ASP) to the ICC Statute. The proposal was put forward at that 8th session and again at the resumed 8th session of the ICC ASP in March 2010 but it was decided not to consider the proposal in Kampala in June 2010 but to defer it to the 9th ASP. The 9th ASP will take place in December this year and it is likely that the AU will be pushing its proposal at that meeting since it was reiterated by the AU Assembly of Heads of State earlier this year.

So what should the ASP do with the AU’s proposal? The proposal raises issues not only with regard to the ICC but also raises questions about the division of competence between the UN Security Council and the UN General Assembly. Is the proposed amendment not merely an amendment to the ICC Statute but also an indirect way of amending the UN Charter? For example, would the amendment be compatible with Article 12 of the UN Charter which states that the Gen. Assembly may not make recommendations with regard to situations or dispute in respect of which the SC is exercising its functions?  What are the prospects for success for this amendment? Furthermore, quite apart from the specifics of Article 16, how should the concerns of some African States regarding the operation of the ICC be addressed? Are those concerns valid and can they be addressed without amendment to the ICC Statute?

In a recent paper produced for the South African based Institute for Security Studies, Max du Plessis (University of KwaZulu Natal), Charles Jalloh (University of Pittsburgh) and I address these issues concerning the AU concerns about the ICC.

This African expert study on the African Union’s (AU) concerns about article 16 of the Rome Statute of the International Criminal Court (ICC) seeks to articulate a clearer picture of the law and politics of article 16 deferrals within the context of the AU’s repeated calls to the United Nations Security Council (UNSC) to invoke article 16 to suspend the processes initiated by the ICC against President Omar al-Bashir of Sudan. The lack of a formal reply by the UNSC to the AU request has resulted in AU member states deciding to withhold cooperation from the ICC in respect of the arrest and surrender of Bashir. In light of the AU’s continued concerns, questions have arisen about the UNSC’s exercise of the controversial deferral power contained in article 16. This culminated in the AU proposing that article 16 be amended to empower the UN General Assembly to act should the UNSC fail to decide on a deferral request after six months.

Although states parties to the Rome Statute have shown little support for the AU’s proposed amendment to article 16, the merits of the AU proposal must be considered. A failure to engage with African government concerns about the deferral provision could further damage the ICC’s credibility in Africa. Constructive suggestions about the ‘article 16 problem’ must be developed in order to contribute towards resolving the negative stance that some African countries have taken towards the ICC. The challenge is to devise both legally sound and politically palatable options. Read the rest of this entry…


Changes in the EJIL:Talk! Team

Published on October 26, 2010        Author: 
The EJIL community wishes to extend its warm thanks to Nehal Bhuta  who is stepping down as an editor of EJIL:Talk! our hugely successful blog. Working along side Dapo Akande,  the Blog has become an important forum and voice for international legal discourse.  It has set the highest standards for seriousness and sobriety eschewing many of the pitfalls of cyberspace. EJIL: Talk! complements EJIL — the whole being greater than the sum of the parts. This is a good moment to thank Dapo Akande for his continued and selfless leadership of EJIL:Talk! and to welcome two new editors who will work along side him: Iain Scobbie of EJIL’s Scientific Advisory Board and Marko Milanovic — well known for his thoughtful and thought provoking contributions to EJIL:Talk!
Filed under: EJIL, EJIL Analysis
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The Enron Annulment Decision’s exposure of Necessity’s Endemic Uncertainty: A Welcome Critique

Published on October 25, 2010        Author: 

Sahib Singh is a  member of the international litigation and arbitration group at Skadden and a visiting lecturer at the University of Vienna.

As promised by my last post on the Sempra Annulment decision, this is a comment on the Enron Annulment decision of 30 July 2010. The decision is fascinating for a number of reasons, but this post shall concentrate on the Committee’s analysis of the “only means” requirement under the customary doctrine of necessity. Whilst highlighting the inherent ambiguity in the application of these words, the Committee’s inquisitorial approach may create more problems than it solves. Accordingly, this post concludes with a rough sketch of logical steps a tribunal may take in applying the “only means” requirements under custom.

I.          Background & Findings of the Committee in the Enron Annulment decision

By way of background on investor-State arbitration claims concerning Argentina, please see my last post. The Enron Annulment Committee concluded that the original award, rendered in favour of the Claimant, was to be annulled due to the Tribunal’s failure to apply the applicable customary law as represented by Article 25 of the ILC Articles on the Responsibility of State for Internationally Wrongful Acts and failure to give reasons (paras. 377-8, Enron Annulment). In particular the Committee concluded that the tribunal’s reasoning of the “only means” requirement under Article 25 was entirely insufficient: (emphasis added)        

369. The first question concerns the legal definition of the expression “only way” in Article 25(1)(a) of the ILC Articles. The Committee notes that the expression is capable of more than one possible interpretation. One potential interpretation is that it has its literal meaning, such that in the present case, the principle of necessity could be relied on by Argentina if there were genuinely no other measures that Argentina could possibly have adopted in order to address the economic crisis. As Argentina points out, there will almost inevitably be more than one way for a Government to respond to any economic crisis, and if this interpretation were correct, the principle of necessity under customary international law could rarely if ever be invoked in relation to measures taken by a Government to deal with an economic crisis. However, that would not mean that it would not be open to a Tribunal to find that this is the correct interpretation, although there are other interpretations that would be equally open to a Tribunal.

 370. For instance, another possible interpretation would be that there must be no alternative measures that the State might have taken for safeguarding the essential interest in question that did not involve a similar or graver breach of international law. Under this interpretation, if there are three possible alternative measures that a State might adopt, all of which would involve violations of the State’s obligations under international law, the State will not be prevented from invoking the principle of necessity if it adopts the measure involving the least grave violation of international law. Under this interpretation, the principle of necessity will only be precluded if there is an alternative that would not involve a breach of international law or which would involve a less grave breach of international law.

 371. A second question not addressed by the Tribunal is whether the relative effectiveness of alternative measures is to be taken into account. In adopting measures to safeguard an essential interest, a State may in practice not be in a position to know with certainty whether a given measure will prove to be effective, and reasonable minds may judge that some measures are likely to be more effective than others. For instance, suppose that there are two possible measures that a State might take in order to seek to safeguard an essential interest. One is 90 per cent probable to be 90 per cent effective to safeguard that essential interest, while the other is 50 per cent probable to be 60 per cent effective. Suppose that the former measure would (subject to the potential application of the principle of necessity) be inconsistent with obligations of the State under international law, while the latter measure would not. Would the State be precluded from invoking the principle of necessity if it adopted the former measure, on the basis that there was an alternative available? Or could the State claim that the measure taken was the “only way” that stood a very high chance of being very effective?

 372. A third question that is not specifically addressed by the Tribunal is who makes the decision whether there is a relevant alternative, and in accordance with what test? Does the Tribunal determine this at the date of its award, when the Tribunal may have the benefit of knowledge and hindsight that was not available to the State at the time that it adopted the measure in question? Or does the Tribunal determine whether, on the basis of information reasonably available at the time that the measure was adopted, a reasonable and appropriately qualified decision maker would have concluded that there was a relevant alternative open to the State? Or does customary international law recognise that reasonable minds might differ in relation to such a question, and give a “margin of appreciation” to the State in question? In that event, the relevant question for the Tribunal might be whether it was reasonably open to the State, in the circumstances as they pertained at the relevant time, to form the opinion that no relevant alternative was open.

  II.        Analysis of the Committee’s Annulment approach to “only means”

 The Committee’s analysis of the “only means” requirement under Article 25 ILC Articles raises three particular points of interest (sections B-D below). However, this post shall quickly examine the background to this requirement. Read the rest of this entry…

Filed under: EJIL Analysis, EJIL Reports

ECHR Grand Chamber to Hear Case Challenging Legality of UN Security Council Sanctions

Published on October 24, 2010        Author: 

The Grand Chamber of the European Court of Human Rights (ECHR) has been asked to decide a case which challenges the legality of national measures implementing Security Council measures taken against persons associated with the Taleban and Al Qaeda. The chamber to which the case – Nada v. Switzerland (application no. 10593/08) – was  originally allocated has now relinquished jurisdiction in favour of the Grand Chamber. The case is brought by Mr Nada, an Italian national, who is on the list of persons subject to sanctions under UN Security Council Resolution 1267 (1999) and who lives in an Italian municipality that is an enclave within Switzerland. He is unable to leave the municipality as Switzerland will not allow him to enter or pass through the country. He argues that this is in breach of his rights under the European Convention on Human Rights. The facts of the case and the complaint are set out in the ECHR press release (see here):

The applicant, Youssef Moustafa Nada, is an Italian national who was born in 1931 and lives in Campione D’Italia, an Italian enclave of 1.6 km in the Swiss Canton of Tessin.

On 15 October 1999 the United Nations Security Council adopted Resolution 1267 (1999) providing for sanctions against the Taliban and setting up a Committee responsible for their implementation. On 19 December 2000, by the adoption of Resolution 1333 (2000), the sanctions regime was extended to include Osama bin Laden and al-Qaeda. In its resolutions, the Security Council called upon the Committee to maintain a list of individuals and entities associated with bin Laden and al-Qaeda.

Under those resolutions, on 2 October 2000 the Swiss Federal Council adopted an order laying down measures against individuals and entities associated with Osama bin Laden, al-Qaeda or the Taliban (the “anti-Taliban order”). The order provided for the freezing of assets and financial resources of those concerned, and prohibited the provision to them of funds or financial resources. It further restricted their entry into or transit through Switzerland.

On 9 November 2001 Mr Nada and a number of organisations associated with him were placed on the list of the United Nations Committee. On 30 November 2001 those names were added by the Swiss authorities to the list of people concerned by the anti-Taliban order.

On 22 September 2002 Mr Nada requested the deletion from the list of his name and those of the organisations associated with him, mainly because the Swiss investigation against him had been discontinued.

However, his request and subsequent administrative appeals were rejected. The Federal Council referred his case to the Federal Court, considering that the restrictions on Mr Nada’s property rights had, under the European Convention on Human Rights, to be assessed by an independent and impartial tribunal. On 14 November 2007 the Federal Court dismissed Mr Nada’s appeal. It found that Switzerland had acted in accordance with its international obligations. It nevertheless requested the Swiss authorities to ascertain whether it was possible, having regard to their international obligations, to waive the measure barring Mr Nada from entering the country. As he lived in a small Italian enclave in Switzerland he found himself virtually under house arrest. Mr Nada has stated that following that judgment he has asked the Swiss authorities several times to let him enter or pass through Switzerland, but without success.

Complaints and procedure

Relying on Article 5 §§ 1 and 4 (right to liberty and security), Mr Nada complains that he was deprived of his liberty by the Swiss authorities and had no effective procedure through which to challenge the restrictions on his freedom of movement. He further takes the view that the measures at issue were contrary to Article 8 (right to respect for private and family life). Lastly, he alleges that there has been a violation of Article 13 (right to an effective remedy), in that there was no remedy available in Switzerland by which he could have complained of a breach of Articles 5 and 8. Read the rest of this entry…


Iraq Inquiry to Publish Submissions on International Law

Published on October 22, 2010        Author: 

The Chilcott Committee of Inquiry established by the UK government to consider the Iraq war has announced that it will publish the submissions it received analysing the legal arguments relied on by the UK for the use of force in Iraq. The announcement of its website reads as follows:

In June 2010, Sir John Chilcot issued an open invitation for International Lawyers to give their analysis of the legal arguments relied upon by the UK Government as the legal basis for military intervention in Iraq. The deadline for submissions was on 13 September 2010; around 35 submissions were received. Those submissions which addressed the issues raised in Sir John’s invitation will be published with the Inquiry report.

Some of the submissions to the inquiry, including a submission drafted by Marko and I and signed by others (see here), have already been published by the Guardian on its Legal Document Store.

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New Judges at the European Court of Human Rights

Published on October 21, 2010        Author: 

Earlier this month, the Parliamentary Assembly of the Council of Europe elected two new Judges to the European Court of Human Rights (ECHR). I am delighted to report that Linos-Alexander Sicilianos, a fellow member of the Scientific Advisory Board of the European Journal of International Law has been elected to take up the Greek seat on the Court (from May 2011). Professor Sicilianos is currently an Associate Professor of Law at the University of Athens and Vice Chairman of the Greek National Commission on Human Rights. He has been Vice Chair of the UN Committee of the Elimination of Racial Discrimination. Our congratulations to Alexander! Professor Sicilianos is the second member of the EJIL Scientific Advisory Board to be elevated to high judicial office this year. Earlier in the year Prof. Andreas Paulus was appointed to the German Constitutional Court.

The other judge elected to the ECHR is Ms Julia Laffranque who will take up the Estonian seat on the Court. She is currently a Judge on the Estonian Supreme Court and an Associate Professor of European Law at the University of Tartu. Our congratulations also go to her!

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Is the Rome Statute Binding on Individuals?

Published on October 15, 2010        Author: 

What a positively weird question, you might think. The Rome Statute of the International Criminal Court cannot be binding on individuals. It is a treaty, to which only states can be parties, since individuals are not subjects of international law, and it is furthermore a general principle of international law that treaties cannot bind non-parties. This is the answer that public international lawyers would give almost by reflex.

But what if the question was put in slightly different terms — are the provisions of the Rome Statute that define international crimes and forms of individual responsibility substantive or jurisdictional in nature? Do they, in other words, define when an individual is criminally responsible, or do they only say when the Court can establish jurisdiction for the individual’s violation of a norm emanating from a different source of international law, such as custom? Many of us, particularly those with a more of a criminal law background, would be tempted to say that of course the provisions of the Rome Statute must be substantive in nature, since one of the purpose of the Statute was precisely to get away from vague and indeterminate inquiries into custom. But if that is true, then the Statute — a treaty — must be binding on individuals who have never consented to be bound by it, nor could have done so.

But why does this matter? If the Statute is only jurisdictional in nature, as have incidentally been the statutes of all other international criminal courts and tribunals so far (at least nominally), then the source of substantive norms of criminal law binding on individuals must be elsewhere, primarily in customary law. If this is so, then the Statute could never go beyond customary law, and any individual accused before the Court will at least in principle have to be able to mount a challenge as to whether the charges against him have a basis in customary law. If, on the other hand, the Statute is seen as being substantive in nature, then it may well go beyond customary law, but it would arguably run afoul of the nullum crimen sine lege principle in at least two cases — when a particular situation has been referred to the Court by the UN Security Council or by a non-state party — since the supposedly substantive Statute would not have been binding on the individuals concerned at the time that they allegedly committed their offense.

Let me put this in less abstract terms. When militia under Sudanese control committed mass atrocities in Darfur, were they violating custom or the Rome Statute, to which Sudan is not a party? And if the answer is the former, could they be prosecuted before the ICC under UNSC referral even for those crimes which may not be customary in nature but are nonetheless in the Statute, or under theories of responsibility which are almost definitely not customary? Can, for example, Omar Al-Bashir, the President of Sudan, (if ever tried) be held responsible under a theory of indirect perpetration or perpetration by means, which has never been used in any other international criminal tribunal? Would this not violate the principle of legality, as the Rome Statute did not extend to the territory of Sudan at the time the alleged offenses were committed?

I explore these and other issues, such as when, why and how treaties can directly bind individuals without the mediation of domestic law, and the options that the Court will have in addressing challenges to charges based on the nullum crimen principle, in an article forthcoming in the Journal of International Criminal Justice. A pre-print draft is now available on SSRN, and any comments from our readers would be greatly appreciated.


Geoffrey Robertson Responds on the Statehood of the Vatican

Published on October 13, 2010        Author: 

Yesterday Geoffrey Robertson QC responded to two earlier posts of mine (see here and here) in which I discussed the statehood of the Vatican and the question whether the Pope was immune from arrest (as a head of State) during his recent visit to the UK. His response was posted as a comment to my post but given its significance I have decided to post his comment in full.

I am surprised that Dapo should critique my views on Vatican statehood without reading them. Had he done so – they are set out in my book “The Case of the Pope – Vatican Accountability for Human Rights Abuse” – he would have recognised that much more common ground exists between us than he thinks, especially over the difficulty under the chapeau of Article 7 of the Rome Statute as a result of those meddlesome “Elements of Crime”.

Dapo’s statement that “it is not apparent if the Vatican were simply an NGO it would be less influential in treaty drafting than the Vatican state” is demonstrable incorrect. It is apparent, indeed flagrant, to anyone familiar with the UN and its NGO system, and the evidence is set out in Chapter 6 of my book. NGOs would kill, so to speak, to have the influence vouchsafed to the Vatican as a non-member state.

I was unimpressed by Dapo’s snigger over my statement that “some international lawyers had pointed out that it [the Vatican] lacks people, territory and other qualifications necessary to be judged objectively as a state in international law”. Ironically, his implication that this was incorrect and that “leading international lawyers” believe that the Vatican fulfils the criteria was refuted by letter to the Times on the very day of his posting, by Anthony Aust. Although not an academic (is this Dapo’s criteria for becoming a “leading international lawyer”?) Aust spent 35 years as a legal advisor at the Foreign and Commonwealth Office and is author of Modern Treaty Law and Practice (2000) and Handbook of International Law (CUP, 2005), second edition forthcoming. Aust wrote:

“Is the Vatican a State?

Sir, It is wrong for the United Kingdom to continue to recognise the Vatican as a state, have an ambassador to the Vatican, and accord the Pope a visit as a Head of State. This is irrespective of whether it is good or bad. The Vatican is a tiny area (110 acres) with a resident population of some 800 whose main purpose is to support the Holy See. The Vatican is not a member of the United Nations. It may be seen best for what it really is: a small part of Italy devoted to proselytising Roman Catholicism, which is an important religion but no more than that.”

As for academics, I’m afraid that Dapo has not done his homework. My New Statesman comment is amply supported by the list I give in para 132 of my book: Read the rest of this entry…


Know Your Rights! The Flotilla Report and International Law Governing Naval Blockades

Published on October 12, 2010        Author: 

Yuval Shany is the Hersch Lauterpacht Chair in Public International Law at the Law Faculty at the Hebrew University of Jerusalem. The author thanks Prof. David Kretzmer, Adv. Gil Limon and Adv. Rotem Giladi for useful comments to an earlier draft. The usual disclaimers apply.

The Report of the “international fact-finding mission to investigate violations of international law, including international humanitarian and human rights law, resulting from the Israeli attacks on the flotilla of ships carrying humanitarian assistance” (the ‘Flotilla Report” issued by the “fact finding mission”), which was published on 22 September 2010, is a troubling document.

Of course, the Report is troubling in that it suggests that Israel has committed serious violations of human rights and humanitarian law: The Report alleges that the Israeli blockade violated the laws of war, that the interception of the flotilla was therefore unlawful, that excessive force was used during the interception resulting in loss of lives, and that the individuals on board the flotilla ships were mistreated while in Israeli custody.

Still, at a different level, the Report is troubling in its many substantive weaknesses, which cast serious doubts on its potential impact, as well as on the desirability of engaging in such fact-finding exercises in the future. I will deal hereby with one set of problems I find in the Report: the poor quality of the legal analysis leading to identification of the law governing the Israeli interception operation and the application of such law to the facts at hand. I would note however that other problems in the Report exist: For example, one ought to be troubled by the mission’s rush to issue judgment on questions of fact, notwithstanding the unavailability to it of the full Israeli version of events, and without awaiting the outcome of investigations conducted in Israel (the Turkel Committee) and on behalf of the UN Secretary General (the Palmer Committee), which could throw light on some of the events that transpired on board of the flotilla ships and in detention facilities inside in Israel.


Documents such as the Flotilla Report touch upon sensitive and difficult matters and are inevitably bound to generate controversy. However, by failing to acknowledge many of the legal complexities and challenges presented by the circumstances of the flotilla incident, and through committing some serious error of law, I believe that the fact finding mission significantly eroded the Report’s credibility and undermined its potential impact.

Read the rest of this entry…


The ICTY Appeals Judgment in the Haradinaj case

Published on October 11, 2010        Author: 

Dr. Gentian Zyberi was co-ordinator of the Albanian legal team in the ICJ’s Advisory proceedings on the Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo. He worked for the Defence in the Haradinaj case discussed below.


In its judgment dated 19 July 2010 the Appeals Chamber of International Criminal Tribunal for the former Yugoslavia (ICTY) partially quashed the acquittals of Ramush Haradinaj (Kosovo’s ex-Prime Minister and former commander of the Kosovo Liberation Army (KLA) for the Dukagjin zone), Idriz Balaj (former KLA member, commander of the Black Eagles unit), and Lahi Brahimaj (former deputy commander of the KLA Dukagjin Operative Staff, member of the KLA General Staff).  Mr. Haradinaj and Balaj had been acquitted of all charges, while Mr. Brahimaj was found guilty of torture and sentenced to a term of six years’ imprisonment by the Trial Chamber on 3 April 2008. The Appeals Chamber ordered a partial retrial of the case, President Robinson partially dissenting. The President then proceeded to appoint a trial bench composed of Judge Moloto, Judge Hall and Judge Delvoie for this retrial.

Since this is the first retrial ordered by the ICTY in its 15 years of activity – it is surprising that so far this judgment has escaped the careful scrutiny it deserves regarding the legal standard applied and the conclusions drawn by the Appeals Chamber. The Appeals Chamber found that the Trial Chamber had committed a mistake of law by refusing the Prosecutor’s requests for additional time to exhaust all reasonable steps to secure the testimony of two witnesses, while the Trial Chamber had ordered an extension three times, and ordering the close of the prosecution case before such reasonable steps could be taken.  It stated that the Trial Chamber ‘failed to appreciate the gravity of the threat that witness intimidation posed to the trial’s integrity’ which ‘undermined the fairness of the proceedings as guaranteed by the Statute and Rules and resulted in a miscarriage of justice.’ (Appeals Judgment, p. 22, par. 49).

Problems with the Appeals Chamber reasoning

This Appeals Chamber Judgment is problematic for a number of reasons, few of which are briefly dealt with below. As the partial dissent pointedly chastises, on the issue of retrial the Haradinaj Appeal Judgment leaves open many more questions than it closes, giving the impression that a policy driven decision-making process disregarded the rule of law, the rights of the accused, and the legal and factual diligence due in handing down a decision of such importance (Partially dissenting opinion of Judge Patrick Robinson, pp. 129-130, par. 32).  It is a pity, because witnesses’ protection in international criminal proceedings and the role of discretion in securing a fair opportunity for the Prosecutor to be heard are unquestionably two extremely important matters for international criminal justice in general.

a) Substitution of the discretion of the Trial Chamber for its own

As the partial dissent of President Robinson points out (Partially dissenting opinion of Judge Patrick Robinson, pp. 116-120, paras. 1-9), the Appeals Chamber did not abide by its own rule that it will not lightly overturn decisions based on the Trial Chamber’s discretion. This is the first of a number of significant flaws and mistakes which weaken the Appeals Chamber’s reasoning. Read the rest of this entry…

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