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The Al-Werfalli Arrest Warrant: Denial of Fair Trial as an Additional Allegation and a Hint at a Possible Defence

Published on August 23, 2017        Author: 

Last week, the International Criminal Court (ICC) issued an arrest warrant in the Libya Situation against Mahmoud Al-Werfalli. The arrest warrant alleges that Al-Werfalli is criminally responsible for the war crime of Murder, in a non-international armed conflict, pursuant to Article 8(2)(c)(i) of the Rome Statute, in relation to the alleged summary execution of 33 persons. Based on the facts laid out in the arrest warrant, the ICC Office of the Prosecutor (OTP) could also have alleged that Al-Werfalli is criminally responsible for the war crime of “sentencing or executing without due process” (“denial of fair trial”) pursuant to Article 8(2)(c)(iv) of the Rome Statute. This choice would be novel in modern international criminal law practice. However, it has been done in other jurisdictions (See J. DePiazza, “Denial of Fair Trial as an International Crime — Precedent for Pleading and Proving it under the Rome Statute” 15 Journal of International Criminal Justice (2017)). Another interesting element of the arrest warrant is that it hints at a possible defence to any eventual charge of murder or denial of fair trial – mistake of fact.

According to the arrest warrant, Al-Werfalli is a Commander in the Al-Saiqa Brigade, an elite unit reported to comprise 5,000 soldiers. In May 2014, the Brigade joined “Operation Dignity”, with other armed elements, for the reported purpose of fighting terrorist groups in Benghazi. The operation continued until at least 18 March 2017. In this context, the arrest warrant alleges that, in seven separate incidents, 33 persons who were either civilians or persons hors de combat, were detained and then executed. It is alleged that they were either executed personally by Al-Werfalli or on his orders. The arrest warrant further alleges that “[t]here is no information in the evidence to show that they have been afforded a trial by a legitimate court, whether military or otherwise” (Arrest Warrant, para. 10). Read the rest of this entry…

 

Some Thoughts on the Jadhav Case: Jurisdiction, Merits, and the Effect of a Presidential Communication

Published on May 12, 2017        Author: 

On 8 May, India instituted proceedings at the International Court of Justice against Pakistan relating to the latter’s imprisonment and award of death penalty to Kulbhushan Jadhav, an Indian national. Pakistan claims it arrested Mr Jadhav on 3 March 2016, in Balochistan (a Pakistani province), where he was engaged in espionage and sabotage activities. A military court sentenced him to death on 10 April 2017. India alleges that Mr Jadhav was abducted from Iran, where he was engaged in business following retirement from the Indian Navy. India further claims that following his arrest and throughout his trial, sentencing and now imprisonment pending execution of sentence, it has not been allowed consular access to Mr Jadhav.

India’s application asks the Court to declare that the sentence imposed by Pakistan is ‘in brazen defiance’ of Article 36 of the Vienna Convention on Consular Relations (VCCR), and of the ‘elementary human rights of the accused’ (para. 60). It asks the Court to direct Pakistan to annul the decision; or, if, Pakistan is unable to do so, to declare the decision illegal, and direct Pakistan to release Mr Jadhav immediately (Id.). India has also requested that the Court indicate provisional measures preventing Pakistan from executing him pending resolution of the dispute.

Oral hearings on provisional measures are listed to begin on 15 May. Meanwhile, President Abraham has issued an urgent communication to Pakistan, pursuant to his powers under Article 74(4) of the 1978 Rules of the Court. This provides:

Pending the meeting of the Court, the President may call upon the parties to act in such a way as will enable any order the Court may make on the request for provisional measures to have its appropriate effects.

In this post, we offer a brief account of several issues. We first note a few points in relation to India’s claims as to the Court’s jurisdiction and the merits of the claim proper. We then discuss the scope and effects of the President’s Article 74(4) communication. Our attention was caught by the fact that this communication was reported in the Indian media as a ‘stay’ on Mr Jadhav’s execution, with India’s Foreign Minister even tweeting that she had told Mr Jadhav’s mother ‘about the order of President, ICJ […]’. This squarely raises the question: can the Article 74(4) communication be read as a mandatory ‘order’ in the same way as provisional measures ordered under Article 41 of the Court’s Statute? And, if not, could a state in any way be found legally accountable in for its breach? Read the rest of this entry…

 
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