An ICTY Trial Chamber just delivered its judgment in one of its most controversial contempt cases, finding Florence Hartmann, a journalist and previous spokesperson for the ICTY Prosecutor, guilty of contempt of tribunal for disclosing in a book and an article the contents of two confidential ICTY Appeals Chamber decisions in the Milosevic case. The Chamber found, inter alia, that the information in question was confidential, and was, contrary to the submissions of the defense, not in the public domain when Hartmann published her pieces. She was fined 7,000 euros, and an appeal is of course possible.
Professor Robert Cryer is Professor of International and Criminal Law at the University of Birmingham Law School, UK. He is the author of Prosecuting International Crimes: Selectivity and the International Criminal System (Cambridge, 2005) and co-author of An Introduction to International Criminal Law and Procedure (Cambridge, 2007).
One of the most interesting decisions of the International Criminal Court on confirmation of charges has passed by with little comment so far. Whilst the Al-Bashir Arrest Warrant decision has received very considerable attention (for example – shameless self-promoter that I am – in the symposium in the most recent Journal of International Criminal Justice), the lesser-known confirmation of charges decision in the case against former Congolese Vice-President Bemba (in relation to alleged crimes in the Central African Republic) raises some extremely interesting issues deserving of comment. For example, the decision (Prosecutor v Jean-Piere Bemba Gombo, decison of June 15, 2009) has interesting things to say in relation to definitions of crimes, their contextual elements, and the mental element as provided for in Article 30 of the ICC Statute. Indeed far too many matters to deal with in any meaningful way in a post of this nature.
As such, this post will concentrate on only one aspect of the decision, command responsibility, as this is the first time this principle of liability (and I call it as such deliberately) has been the subject of significant comment by the ICC. Its decision on point is important, not only for the comments the Pre-Trial Chamber make directly on the issue, but also because it is indicative of the extent to which the ICC is looking, whilst showing considerable respect at times to the jurisprudence of the ICTY and ICTR, to create a separate regime of what might be termed ‘Rome law’. Whether this is a good idea or not, or whether we might see a problematic fragmentation of international criminal law from the multiplicity of Tribunals applying different definitions of international criminal law will be (briefly) returned to at the end. Read the rest of this entry…
Ruth Wedgwood is Edward B. Burling Professor of International Law and Diplomacy; and Director of the International Law and Organizations Program at the Paul H. Nitze School of Advanced International Studies, John Hopkins University, Washington DC. She is also a visiting fellow at the Hoover Institution. Previously, she served as a federal prosecutor in the Southern District of New York, and designed the redaction procedures that became the Classified Information Procedures Act
A striking consensus is emerging in Washington for a closer relationship with the International Criminal Court. Even some staunch conservatives have backed the idea of lending logistical, political, and diplomatic assistance to the ICC on a case-by-case basis – to act against the most shocking outrages of genocide, crimes against humanity, and systematic war crimes.
Yet, with notoriously bad timing, the path to this cooperation may be washed away, due to a troublesome and unnecessary fight brewing at a sister criminal tribunal in The Hague.
The fracas has arisen at the ad hoc United Nations war crimes court tasked since 1993 to try cases from the bloody ethnic war in the former Yugoslavia. This is a high-performing tribunal that has enjoyed strong leadership from its American judges and other admired jurists. The court is currently focused on the prosecution of Bosnian Serb leader Radovan Karadzic and has an indictment and arrest warrant waiting for fugitive Bosnian Serb general Ratko Mladic.
But this exemplary war crimes court also has a mess on its hands, partly of its own creation. The outcome will hold an important lesson for the transparency that any international criminal court should maintain, even amidst the difficulties of dealing with sovereign states. To be acceptable to democratic states and publics, an international court should make available the logic and effect of its rulings. There can be no secret jurisprudence, unavailable to debate and critique by an audience of lawyers, political leaders, and citizens.
Yet, in a summary proceeding now underway at the tribunal, three judges hailing from China, Turkey, and South Africa are threatening to send a French journalist to jail on a charge of criminal contempt for revealing the bare-bones logic of two appellate opinions. No witness has been endangered. No sealed arrest warrant was thwarted. And the criminal case to which the decisions pertained was ended by the fatal heart attack of former Yugoslav strongman Slobodan Milosevic in his jail cell in The Hague in March 2005. Read the rest of this entry…
Today the Trial Chamber of the ICTY presiding over the Karadzic case rendered its decision on the defense challenge to the ICTY’s jurisdiction on the basis that Karadzic had entered into an agreement with Richard Holbrooke that promised that he would not be prosecuted. This is the latest of Karadzic’s attempts to invoke this alleged agreement between him and Holbrooke, albeit now with the help of two theories, the first being that Karadzic was an agent or acted with actual or apparent authority of the UN Security Council or the ICTY Prosecutor, and the second that it would be an abuse of process to try Karadzic who could have reasonably relied on the putative agreement.
The Chamber quite rightly (despite what my friend Kevin Heller might say), and unsurprisingly, rejected Karadzic’s motion. It also rejected his request to hold an evidentiary hearing on the disputed facts regarding the alleged agreement, stating at para. 46 that ‘If the Accused cannot obtain the relief he seeks as a matter of law, then the issue of whether the Agreement was ever made is irrelevant to any issue other than sentence, on which evidence may be led at trial. The Trial Chamber rejects the Accused’s submission that not having an evidentiary hearing at this stage would be a disservice to history. The Chamber’s purpose is not to serve the academic study of history.’
Did Holbrooke promise Karadzic that he would not be prosecuted? Probably. But so what? It simply boggles the mind that a reasonable war crimes suspect (if we grant Karadzic the ‘reasonable’ part) could rely on a purely oral, furtive promise by a US envoy as a binding legal guarantee, or indeed that he saw Holbrooke as an agent of the UNSC or, even less so, of the Prosecutor. Even assuming that Karadzic saw Holbrooke as acting on behalf of the UNSC, Karadzic could only come up with a strained agency theory plucked from domestic law in support of his argument that an agreement between Karadzic and the UNSC would bind the ICTY even in the absence of a subsequent UNSC resolution, as the Chamber correctly points out at para. 58.
However, don’t expect that this decision will put an end to the Holbrooke agreement matter. This is Karadzic’s favourite theme, and it will keep coming up. Indeed, the Trial Chamber has allowed Karadzic’s legal advisers to continue with their agreed-upon interviews of Carl Bildt and UN officials, stating that this might have relevance for Karadzic’s eventual appeal and sentence.
Today a Trial Chamber of the ICTY delivered its judgment in Milutinovic et al, a case against a number of high-ranking political, military and police officials of the Federal Republic of Yugoslavia and Serbia regarding crimes committed by FRY/Serbian forces in Kosovo in 1998 and 1999. This is the first judgment delivered by the ICTY on Kosovo, since the Kosovo indictment against Slobodan Milosevic was never adjudicated on because of the death of the accused. Because of the scope of the case and the status of the accused, this is beyond any doubt one of the most important trial judgments to be delivered by the ICTY.
In its judgment, the Trial Chamber confirmed the existence of a broad campaign of violence against the Kosovo Albanian civilian population, causing the departure of at least 700.000 Albanians from Kosovo. The campaign was legally qualified as deportation, murder and persecution as crimes against humanity.
The most poorly run trial ever before the ICTY – the high profile proceedings against the ultra-nationalist Serbian leader Vojislav Seselj – has entered into what I can only call its metastasis. AP reports that today the Trial Chamber, by 2 votes to 1 (presiding Judge Antonetti dissenting), decided to adjourn the trial indefinitely, for fears that the integrity of the proceedings has been compromised. The most serious allegations involve witness intimidation by Seselj’s associates – indeed, Seselj himself has recently been charged with contempt of Tribunal for disclosed the identity of a witness in the most recent, 1000 page instalment in his endless, Mein Kampf-like book series that he (supposedly) writes while in detention.
The trial itself has truly devolved into a travesty, with the presiding judge in particular showing an incredible lack of ability to manage the self-representing Seselj. In short, Seselj was basically allowed to run his own trial. That Seselj himself is probably one of the most obnoxious and irritating human beings in all of creation is really not an excuse for the amount of incompetence that has been displayed at the ICTY (see generally A. Zahar, ‘Legal Aid, Self-Representation and the Crisis at The Hague Tribunal’, (2008) 19 Criminal Law Forum 241; G. Sluiter, ‘Compromising the Authority of International Criminal Justice–How Vojislav Šešelj Runs His Trial’, (2007) 5 Journal of International Criminal Justice 529)
There is for now no indication how the trial might find its way out of limbo. I won’t even try to explain what kind of impact these developments can have on the already abysmally poor public perception of the ICTY in the Balkans, Serbia in particular. (Not to mention the fact that poor Serbia (i.e. me; self-pity is the best kind of pity) is going to have to suffer through Seselj’s return to the country, probably sooner rather than later, and through his boasting that he actually managed to defeat the Tribunal.) What is fairly certain is that no-one working in the ICTY – least of all the judges – will actually bear any consequences for this fiasco.
Earlier this week, the Trial Chamber at International Criminal Tribunal for the Former Yugoslavia (ICTY) hearing the case against Radovan Karadzic issued a decision in which it stated that “According to customary international law, there are some acts for which immunity from prosecution cannot be invoked before international tribunals [para. 17 of the decision]”. The statement was made in the context of a ruling granting, in part, a request by Karadzic for the disclosure of certain documents by the Prosecutor. Karadzic alleged that, at a meeting in Belgrade in July 1996, he reached an “immunity agreement” with US diplomat Richard Holbrooke in which he was promised that he would not face prosecution at the Tribunal if he withdrew from public life. He sought any documents in the possession of the Prosecutor concerning the alleged agreement and the meeting at which it was reached. He argued that the Holbrooke offer was attributable to the Tribunal because it was made in consultation with other members of the UN Security Council or believed to be so. The Trial Chamber ruled that the documents sought were not relevant to the preparation of Karadzic’s defence other than being of potential relevance to in the determination of any eventual sentence. It considered “it well establihed that any immunity agreement in respect of an accused indicted for genocide, war crimes and/or crimes against humanity before an international tribunal would be invalid under international law [para. 25].”
Although Karadzic and the Trial Chamber discussed the alleged agreement in terms of immunity, the suggestion being that it related somehow to immunities conferred by international law, it may have been more accurate to refer to it as an amnesty agreement. Afterall, the suggestion in the alleged agreement was not that Karadzic was entitled to immunities which international law ordinarily accords but rather that the tribunal would refrain from prosecuting him.
The Trial Chamber’s view that international law immunities do not apply to prosecution for international crimes before international criminal tribunals is erroneous. Read the rest of this entry…