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Home Archive for category "International Tribunals" (Page 83)

Grand Chamber Judgment in Sejdic and Finci v. Bosnia

Published on December 22, 2009        Author: 

Update 6 September 2010 – see also this post.

Appropriately enough in light of our recent discussions of international constitutionalism, today the Grand Chamber of the European Court of Human Rights delivered its judgment in the case of Sejdic and Finci v. Bosnia and Herzegovina (application nos. 27996/06 and 34836/06) (our previous coverage here; judgment here, but the HUDOC link might not be permanent). The case is by any definition a landmark for Strasbourg, not to mention Sarajevo.

Read the rest of this entry…

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Denmark Invites Sudanese President Bashir to Climate Change Conference

Published on November 19, 2009        Author: 

As readers will probably know, there will be a United Nations Conference on Climate Change to be held in Copenhagen, Denmark in December (see conference website here). Participation in the conference is open to parties to the United Nations Framework Convention on Climate Change as well as Observer States, organizations within the United Nations System and observer organizations admitted by the Conference of the Parties. A Danish newspaper has recently reported (see here) that Sudanese President Bashir has been invited to attend the conference:

[Danish Prime Minister] Lars Løkke Rasmussen has invited world leaders to [the] climate meeting, including one subject to an ICC arrest warrant.  . . . World leaders from 191 countries received the official invitation from Prime Minister Lars Løkke Rasmussen yesterday to attend the UN Climate Change Conference in Copenhagen (COP15) this December.

. . . one of those invited is Sudanese president Omar al-Bashir, who is currently subject to an arrest warrant issued by the International Criminal Court for crimes against humanity.

Thomas Winkler, head of the Foreign Ministry’s legal department, said that as the climate conference is a UN event, Denmark is obliged to invite all heads of government without exception.

‘But at the same time we would point out that Denmark is also obliged to comply with the Security Council’s resolution regarding Darfur,’ Winkler said to Berlingske.dk.

The security council resolution states that Sudan, like all countries, must cooperate with the International Criminal Court, and Denmark would be obliged to honour the ICC arrest warrant should al-Bashir arrive in the country.

The issue of President Bashir’s immunity has been discussed extensively on this blog (see here, herehere, here, and here). I have argued on the blog and in the Journal of International Criminal Justice that the effect of the Security Council referral of the Darfur situation to the ICC is that Sudan is to be treated as if it were a party to the ICC Statute and is thus bound by Article 27 of the ICC Statute which removes immunity.

However, I am not sure that the Danish Legal Adviser is right that Denmark would be bound to honour the ICC Arrest Warrant. The reason for this is Article IV, Section II of the Convention on the Privileges and Immunities of the United Nations (1946), which provides:

“SECTION 11. Representatives of Members to the principal and subsidiary organs of the United Nations and to conferences convened by the United Nations, shall, while exercising their functions and during the journey to and from the place of meeting, enjoy the following privileges and immunities:

(a) Immunity from personal arrest or detention  . . .”

It seems to me that there is good argument to be made that this obligation prevails over any other inconsistent obligation as a result of Article 103 of the UN Charter. Although the UN Immunities Convention is a treaty, it is a treaty that elaborates on Article 105 of the UN Charter. That article provides that:

“(2) Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connexion with the Organization.

(3) The General Assembly may make recommendations with a view to determining the details of the application of paragraphs 1 and 2 of this Article or may propose conventions to the Members of the United Nations for this purpose.”

In short, the obligation to accord immunity is a Charter obligation. As such it would prevail over any inconsistent obligations. Even if the Security Council were to explicitly provide that Bashir should be arrested at the conference, that would be contrary to the Charter.

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ICC Prosecutor Seeks Permission to Investigate Kenyan Crimes Against Humanity

Published on November 17, 2009        Author: 

Lionel Nichols is a research student in the Faculty of Law, University of Oxford. He is an executive member of the Oxford Transitional Justice Research Group and has prevously interned at the International Criminal Tribunal for the Former Yugoslavia and the Special Court for Sierra Leone.

Earlier this month, the Prosecutor of the International Criminal Court, Luis Moreno-Ocampo announced that he will seek permission in December from the ICC’s Pre-Trial Chamber to initiate an investigation into crimes alleged to have been committed during the 2007 post-election violence in Kenya. The announcement signalled that Ocampo’s patience in relation to the situation in Kenya had finally expired.  Ocampo has waited over a year for Kenya’s Grand Coalition Government to establish a Special Tribunal for Kenya to try those suspected of being responsible for the 2007 post-electoral violence. Now, for the first time, he is using his powers under Article 15 of the ICC Statute to initiate proceedings in the ICC propio motu (on his own motion).

The investigations into the Kenya situation will build upon the work of the Commission of Inquiry on Post Election Violence (Waki Commission), which issued its report on 15 October 2008 (see here).  The Waki Commission found that, in the violence that followed Mwai Kibaki’s claim to have won the December 2007 presidential elections, at least 1,133 people were killed and more than 300,000 were left homeless.  Assuming paramount importance amongst the list of recommendations made by the Waki Commission was the establishment of a Special Tribunal for Kenya to try those persons suspected of being responsible for the violence.  To coerce the Grand Coalition Government into adopting the recommendation, the names of at least 10 persons believed to have been responsible for orchestrating the violence were placed into a sealed envelope and threatened to be handed over to Ocampo should the Government fail to establish a Special Tribunal by January 2009. Read the rest of this entry…

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Dispute Concerning Honduran Government Crisis Heads to the International Court of Justice (UPDATED)

Published on October 30, 2009        Author: 

UPDATE: Since I wrote this piece it has been announced that the rival Honduran leaders have reached agreement to resolve the crisis relating to the Presidency (see BBC report here). It is not clear what impact this will have on the ICJ case discussed below.

The  new “government” of Honduras has instituted proceedings in the International Court of Justice against Brazil which has given refuge in its embassy in Honduras to “former” Honduran President José Manuel Zelaya (see ICJ Press Release). According to the Application submitted to the Court yesterday by the Honduran Ambassador in the Netherlands:

the “dispute between the Republic of Honduras and the Federative Republic of Brazil relates to legal questions concerning diplomatic relations and associated with the principle of non-intervention in matters which are essentially within the domestic jurisdiction of any State, a principle incorporated in the Charter of the United Nations”.
In particular, the document indicates that “[Mr. José Manuel Zelaya Rosales and] an indeterminate number of Honduran citizens”, who have been taking refuge in the Brazilian Embassy in Honduras since 21 September 2009, “are using [its] premises . . . as a platform for political propaganda and thereby threatening the peace and internal public order of Honduras, at a time when the Honduran Government is making preparations for the presidential elections which are due to take place on 29 November 2009”. It is stated that “[t]he Brazilian diplomatic staff stationed in Tegucigalpa are allowing Mr. Zelaya and his group to use the facilities, services, infrastructure and other resources in order to evade justice in Honduras”.

According to the document submitted by Honduras:

the primary purpose of this Application is to secure a declaration that Brazil has breached its obligations under Article 2 (7) of the Charter and those under the 1961 Vienna Convention on Diplomatic Relations

and Honduras

requests the Court to adjudge and declare that Brazil does not have the right to allow the premises of its Mission in Tegucigalpa to be used to promote manifestly illegal activities by Honduran citizens who have been staying within it for some time now and that it shall cease to do so.

There is no indication in the press release about the grounds on which Honduras claims that the Court has jurisdiction to consider the case. While Honduras has made a declaration under Art. 36(2) of the ICJ Statute recognising the compulsory jurisdiction of the ICJ, Brazil has not. However, both States are parties to the Pact of Bogotá  1948(The American Treaty on Pacific Settlement, see here). Under,  Art. 31 of that treaty, parties accept the compulsory jurisdiction of the ICJ.

The majority of the international community and international institutions such as the UN and the OAS appear to have taken the view that removal of President Zelaya was not only unconstitutional under domestic law but also illegal as a matter of international law. In previous EJIL:Talk! posts (here and here) Brad Roth has discusssed the international reaction to the Honduran crisis and argued that the response has the potential to effect (an ill advised) shift in foundational norms governing the relationship between international and domestic legal authority. Although the ICJ proceedings instituted by the new authorities in Honduras are not framed in these terms, the case may mean that the ICJ gets to pronounce on whether the new “government” is actually the government. In fact, it may well be that it is the ICJ that has the definitive say as a matter of international law on who is the legitimate government in Honduras! Read the rest of this entry…

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Is There Still a Need for Guidelines for the Exercise of ICC Prosecutorial Discretion?

Published on October 28, 2009        Author: 

In April of this year, the ICC Prosecutor issued a set of Regulations of the Office of the Prosecutor. These regulations are intended to govern the way in which the office of the ICC Prosecutor  is administered and the way in which it conducts investigations and operations. Back in 2003, the Office of the Prosecutor issued a policy paper in which it stated that:

“The Office of the Prosecutor considers that Regulations are essential to ensure its independence and accountability. For this reason, it will adopt ad interim Regulations to guide the decisions and practice of the Office, taking into consideration the comments received in the public hearings and throughout the consultation process. The Office considers that in the elaboration of the final Regulations, it will be indispensable to also take into account the views of the staff members that will be recruited and the experience gained by the Office in its first months of operations. The Office envisages adopting these Regulations during the first semester of 2004.”

I am not sure if interim regulations were issued in 2003 or if the 2009 regulations are the first issuance of the “final regulations.” Given what was said in the policy paper, it would appear that the Regulations are intended to provide standards for prosecutorial decision making and in particular to guide the exercise of prosecutorial discretion. However, these regulations do not in fact provide much guidance on how the prosecutor will make decisions in those areas where the prosecutorial discretion is most important: decisions relating to what situations to investigate and who to prosecute.

Read the rest of this entry…

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The (Aborted) Start of the Karadzic Trial

Published on October 26, 2009        Author: 

The trial of Radovan Karadzic at the ICTY was supposed to begin this morning, but, true to his word, Karadzic decided to boycott the trial because he was allegedly not given enough time for preparation. In reality, however, it has been more than a year and three months since his transfer to the Hague – time that he spent wastefully, mainly by bombarding the Tribunal, states, and the public with his theories regarding an alleged immunity deal with Richard Holbrooke, that he claimed was somehow supposedly binding on the Tribunal (for our earlier coverage, see here, and for some discussion see here). The proceedings will resume Tuesday afternoon, and we shall see what the judges make of it.

That the trial is off to a rather bumpy start is of course entirely the Tribunal’s own fault – not because it denied Karadzic adequate time for preparation, but because it allowed him to represent himself in the first place. The ICTY’s overly generous (to put it mildly) approach to self-representation, first in the Milosevic and then in the Seselj cases (see more here), quite simply allowed determined defendants to turn the courtroom into a circus. It is not just deeply flawed legally, practically, and symbolically – it also in my view rests on a mistaken psychological assumption: that the defendants in question actually wish to persuade the judges of their innocence.

But high-ranking defendants want no such thing. It is not the judges who are their intended audience – they perform for the history books, and for those same besotted masses whom they once led and whose fate they still want to control. They wish to validate their own heroic self-image; the courtroom is only their final stage, and the judges a part of the decor. They do so not just because of the narcissistic, prima donna personality that is almost invariably a part of the pathological mental make-up of a successful politician/war criminal. Rather, they are in a sense perfectly rational in their irrationality. That they have nothing to gain by having counsel defend them to the best of their ability is plain – either they already know that they are guilty, or they believe that there’s a conspiracy out to get them, of which the judges naturally form part.

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ICTY Appeals Chamber Denies Karadzic’s Immunity Motion

Published on October 13, 2009        Author: 

Yesterday the ICTY Appeals Chamber issued (what is to be hoped is) the final decision in the Karadzic/Holbrooke immunity agreement saga. For previous commentary on the issue at EJIL: Talk!, see here and here. Though the Appeals Chamber had some quibbles with the Trial Chamber’s approach in denying an evidentiary hearing, accepting facts alleged by Karadzic pro veritate, and then discounting them, it nonetheless (quite rightly) dismissed Karadzic’s appeal.

Thus, the Appeals Chamber held that even if the alleged Karadzic immunity agreement existed, and was made with the actual authority of the Security Council (not merely an apparent authority, as Karadzic contended), this agreement could still not alter the jurisdiction of the Tribunal without a Security Council resolution to that effect (paras. 34-38). Likewise, the Chamber held that not even an agreement entered into by the Prosecution could bind the Tribunal itself (para. 41), and that Karadzic could not avail himself of the abuse of process doctrine. Like the Trial Chamber, the Appeals Chamber allowed Karadzic to pursue the Holbrooke agreement issue insofar as it may be relevant to sentencing and mitigation (paras. 54-55).

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Florence Hartmann Found Guilty of Contempt

Published on September 14, 2009        Author: 

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.

For previous commentary, see here, here and here.

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Who Uses the European Court of Human Rights, and Who Wins? Evidence from New Studies

Published on July 27, 2009        Author: 

Gabriel Swain is Research Associate, School of Social Policy, Sociology and Social Research, University of Kent.  Previously, he worked as a researcher for the Council of State Governments, a US-based public policy think tank, where he wrote on topics including climate change, natural resource policy, energy policy and federalism.

The margin of appreciation doctrine of European Court of Human Rights (ECtHR) gives states flexibility in their interpretation of the European Convention on Human Rights (the Convention). States also have the freedom to decide how they implement judgments finding violations against them. This means that individuals in each Council of Europe (CoE) member state experience rights protection and abuse in often quite different ways. The JURISTRAS project, which began in 2006 with a grant from the EU Sixth Framework Programme, has sought to shed light on that variation by analyzing the various relationships between the ECTHR and domestic human rights actors (both governmental and non) in CoE member states.

 Our research initially focused on the protection of the core civil liberties (i.e. ECtHR Articles 8-11 & 14: right to private and family life; freedom of thought, conscience and religion; freedom of expression; freedom of association; freedom from discrimination), but was expanded to include any situation in which an individual’s inclusion in a minority or vulnerable group caused her rights to be infringed. Research questions that drove the initial research design included:  How are judgments that find a country in violation of the Convention implemented in that country? What factors influence the effectiveness and speed of judgment implementation? Which groups have experienced rights abuses in the most direct ways? Which groups, if any, have been able to use the ECtHR as a tool, and have litigated strategically in order to bring about policy reform?

 A number of interesting issues arose with an analysis of the United Kingdom’s protection of the rights of minority and other vulnerable groups. Perhaps most interesting is the extent to which various groups are (or are not) successful in winning cases, which factors contribute to that success, and which groups are likely to see violations translated into policy reforms that favour their group’s interests, and why. There is a substantial variation in the answers to those questions, and to highlight the difference and help explain the reasons behind it, we can first look at cases brought against the UK by homosexuals and transsexuals, who have managed to use the Court to change discriminatory policies that directly affect them. We can then turn our attention to victims of wrongful death and illegal imprisonment in Northern Ireland and gypsies in the UK as examples of groups that have been largely unsuccessful at utilizing the Court to their advantage. Read the rest of this entry…

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Command Responsibility at the ICC and ICTY: In Two Minds on the Mental Element?

Published on July 20, 2009        Author: 

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…

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