News Round-Up - 31 December 2012

• Syria's special envoy Lakhdar Brahimi has said that if there is no political solution to Syria it will be "transformed into hell," likening the potential situation to Somalia.

• After meeting with AU chairman Thomas Boni Yayi over the weekend, CAR's President Francois Bozize has said he is ready to form a national unity government with the Seleka rebels that have taken much of the country in recent days.The Seleka alliance has accused Bozize of failing to honour the 2007 peace agreement.

• The Pakistani Taliban have executed 21 of the 23 policemen kidnapped last week in Waziristan in a dawn raid.  The policemen were government-allied paramilitaries recruited from local tribes.  For more on the reprisals carried out in Waziristan in response to drone attacks by the US in the region, see Declan Walsh's piece in the New York Times.

• In Iraq, a car bomb has killed 3 and injured 21 in Hillah, 60 miles south of Baghdad.  It is thought that Shiite pilgrims may have been the target.

• AP has reported that violence in Afghanistan dropped overall in 2012, though more Afghan troops were killed and there was a threefold increase in uniformed Afghan troops killing their foreign allied counterparts.

• Israel has allowed building materials for private sector into Gaza for the first time in five years.  Up until now many private contractors had been relying on smuggled materials from Egypt.

• Obama has signed into law a five-year extension of the FISA Amendment Act which allows the government to monitor communications where one of the parties is located overseas.  

• In the blogosphere, an interesting debate has started on comparisons between the Newtown bombings and drone strikes.  See here for Kevin Jon Heller's piece at Opiniojuris, and here for Benjamin Wittes's piece over at Lawfare.

Crisis Group Louise Arbour's Top 10 Conflicts for 2013

In an article over at Foreignpolicy.com Louise Arbour of International Crisis Group sets out 10 conflicts which Crisis Group believes are the biggest coming threats for 2013. The list does not claim to be exhaustive or even prioritised. 

Many that could credibly have made their way onto the list - like the "drug-related violence in Mexico and the "ongoing trauma in Somalia" - have been left off.  Rather the list seeks to highlight "a mix of the obvious risks and those we believe are bubbling beneath the surface."  

Those are:  Sudan, Turkey/PKK, Afghanistan, Pakistan, Iraq, Syria & Lebanon, the Sahel, Central Asia, DRC, and Kenya.  

The full article can be found here.

News Round-Up - 28 December 2012

• The ICTR has a new registrar, Bongani Majola, who is a former deputy prosecutor of the tribunal.

• The NY Times carries a piece on life under Islamist rule in Northern Mali, where at least 14 people have had their feet cut off since the takeover last Spring.  Last week the UNSC passed a resolution authorising military intervention in Mali.  

• The Washington post has published an interesting report on the CIA's little-known Global Response Staff, which employs contractors to provide an "unobtrusive layer of security for CIA officers in high-risk outposts."

• It is reported that UN Secretary General and the UN Security Council have issued statements condemning armed attacks in several towns in the Central African Republic by the Sedeka coalition rebels

• Hamas has banned Palestinian journalists in Gaza from working with or giving interviews to the Israeli media.  Israeli journalists have been banned by their own government from entering Gaza since 2006, purportedly for security reasons. In the West Bank, President Abbas has said he will disband the Palestinian Authority and hand over authority to Netanyahu if there is no move to renewing peace talks after the forthcoming Israeli elections in January.

• Russian deputy foreign minister Mikhail Bogdanov has said that Russia has invited head of the Syrian National Coalition, Ahmed Mouaz al-Khatib to talks regarding Syria's political future.  The invitation comes amid a round of intense diplomatic efforts to end the war in Syria.

News Round-Up - 27 December 2012

• At the ECCC, Florence Ndepele Mwachande Mumba of Zambia has been appointed as the sitting judge of the Supreme Court Chamber. She formerly served as a trial chamber judge at the ICTY and as an appeals chamber judge in the joint ICTY-ICTR appeals chamber. Phillip Rapoza of the USA, who served as a judge on the Special Panels for Serious Crimes in Timor-Leste, has been appointed as the Supreme Court Chamber's reserve judge. 

• In Syria, the Assad regime's military police chief has defected. Maj. Gen. Abdul Aziz Jassem al-Shallal was reported as saying that he decided to leave when the regime deviated from its mission to protect the country and turned into “a gang for killing and destruction.”

• Three people have been killed and six more injured in a suicide bomb attack outside a US Base in Khost in eastern Afghanistan. The base is known to host CIA operatives tracking terror suspects in Pakistan. The Taliban have claimed credit for the attack.

• In Pakistan, there have been attacks on police stations in the town of Darra Adam Khel in the north-western part of Pakistan, in which two policemen have been killed and a further 22 are missing. The Pakistani Taliban, who are believed to be responsible, also announced today their conditions for a ceasefire with the Pakistani government.

• It is reported that the European training mission to Mali, mandated by Security Council Resolution 2085, is to be headed up by General François Lecointre who has previously served served in Djibouti, the Central African Republic, Rwanda, Gabon and Bosnia.

• In the Central African Republic, the Seleka rebel coalition has seized at least 10 towns and is closing in on the capital city. In spite of demands for help, the French government is so far refusing to intervene.

Color of War - Richard Mosse

In this series of striking photographs, the extraordinarily talented Richard Mosse uses infrared film to capture the "Hobbesian state of war in Congo." For him, Congo is "the most beautiful place I have been in my life - and I've traveled a lot."

The bitter contrast between war and the breathtaking natural beauty that often forms its backdrop is one that those of us involved in international criminal law are probably all too familiar with.  Mosse manages to convey this juxtaposition - beauty and war - without a word.  

For more on Mosse's work in Congo, see here.

Syria: Cluster Bombs and the Threat of Chemical Weapons

This short video from the NY Times shows the effects that Russian-made cluster bombs are having on the civilian population in Syria:  

In the video, one rebel warns that the regime will soon resort to chemical weapons.  Russia's foreign minister, Sergei Lavrov has reportedly stated that Syria's chemical weapons have been consolidated at one or two locations and are under control "at the moment."

Syria is one of just six states recognised by the UN that has not signed the Chemical Weapons Convention (CWC) (the others being Angola, North Korea, Egypt, South Sudan and Somalia).  Nor is Syria a party to the Convention on Cluster Munitions (CCM), which  currently has seventy-seven state parties. 

ICL News - 21 December 2012

• The ICC Appeals Chamber rejected the OTP's request for a suspensive order regarding Mathieu Ngudjolo Chui's release from detention following his acquittal earlier this week, finding that in the absence of any strong reasons in support of the ordering of suspensive effect, Mr Ngudjolo's liberty interest must prevail.  

• The ICTR has sentenced former government minister Augustin Ngirabatwareto to 35 years for his part in the 1994 genocide, marking the end of the last ICTR trial.  9 accused remain at large.

• Vladimir Putin has stated that Russia is "not preoccupied" with the fate of the Assad regime, signalling Russia's waning support.

• The NY Times has reported on the Syrian regime's  use of cluster bombs against civilians.  Cluster bombs are the subject of an international ban on account of their inherent imprecision, though neither Syria nor the US are party to the treaty in question. 

• The UNSC has unanimously approved a two track resolution to help recapture the north of Mali which is controlled by Al Qaeda linked groups. 

• Salam Fayaad, Prime Minister of the Palestinian Authority, has called for a boycott of Israeli goods in response to Israel's refusal to transfer tax revenue to the West Bank.  Israel's refusal came after Palestine successfully bid for observer state status at the UN last month.  

• Fighting has broken out in the Tana Delta in Kenya where at least 28 people are said to have been killed in a clash between the Orma and Pokomo communities.

• Libyan Ambassador to the UK, Mahmud Nacua, has said that the government will hand over all files related to the Lockerbie bombing of 1988 which killed 270 people. 

Jens Iverson on Prosecutorial Discretion at the ICC

In this interesting piece over at Dov Jacob's blog Spreading the Jam, Iverson raises the idea of admitting explanations other than "law" or "politics" for why the OTP exercises its discretion in the ways that it does.  He suggests that we move beyond the law/political dichotomy and admit of other rationales for Prosecutorial decision-making.  He writes: 

In order for these [debates between the OTP's representatives, apologists and critics] to be less painful, for the OTP to use its discretion in the best possible manner, and for international criminal law to best address the terrible issues necessarily in its portfolio, we must have a richer, franker discussion over what to do with limited resources.  Discussing directly the implication that addressing crimes in Kenya, Côte d’Ivoire, and Libya may mean that crimes in the Democratic Republic of the Congo may go uninvestigated by the OTP, and doing so without unfounded allegations of politicization, may not only promote the values behind each of the options, enrich our understanding of them, and help us come to better decisions, they may ultimately result in greater support and financial backing for the project of international criminal law in general. 

At the moment, he argues, the Prosecution is inhibited from discussing their policy choices in a meaningful way because any admission that the decision was not a strictly legal one is tantamount to admitting the politicization of the ICC.  If not one, then the other.  He argues that by purposefully avoiding the binary approach of law v. politics, things might be a lot better.  And franker.  I'd certainly be a big fan of that - I think we all would.  

Iverson has really struck a chord with me in this post regarding the need to move beyond the law/politics framework.  The way I normally resolve it, however, (in casual, not very well thought out conversation) is to say there is law, there is political politics, and then there is legal politics.  Political politics, for me, is when for example ICTY prosecutors used EU membership as a carrot for Serbian cooperation. I did not think this was ok, effective as it may have been.  Legal politics is the decision to put on a witness you suspect to be unreliable because of certain institutional pressures and considerations - such as the absence of other witnesses to fill the void, the hope that maybe the mud just might stick,  and the calculation that the risk to the institution's integrity posed by dropping the witness is greater than the risk of the witness not performing on the stand.  It might blow up in your face, but there is enough legal cover for you defend your choice if it does.  What do you do? That to me is legal politicking, and it's generally ok (but perhaps not in that particular example!)

True legal decisions - or at least, the legal decisions that we can be sure really are legal decisions - are those rare things that happen when the court applies the right legal test to the facts and draws the right conclusion.  I suspect that one of the reasons we see so few of those is not because judges and prosecutors are so busy with their politicking but rather because there is still so little agreement on what the law is and how it is supposed to be applied (see for instance the reactions to, and differing opinions within, the Gotovina Appeals Judgment issued last month).  This, I submit, is what gives rise to the WTF reaction so commonly experienced upon the issuance of an ICL judgment or OTP indictment, as opposed to judges and prosecutors actually entertaining improper considerations all of the time - though of course, that does happen too...

ICL News - 20 December 2012

• At the Khmer Rouge Tribunal (ECCC) in Cambodia, Trial Chamber has rejected a request by Ieng Sary to reconsider its earlier decision of 26 Nov in which it found him fit to stand trial. 

• At the ICC, Trial Chamber II has rejected the OTP's application for the continued detention of Mathieu Ngudjolo Chui following his acquittal earlier this week.  The OTP has appealed.

• Chair of independent commission of inquiry on Syria Paulo Pinheiro told the Human Rights Council that the fighting in Syria is becoming overtly sectarian and more foreign fighters from the Middle East and Africa are joining the struggle.  The NY Times has largely confirmed this through its own investigation in Syria. 

• All members of the Security Council except the US have demanded an immediate halt to Israel's construction of new settlements in the West Bank and East Jerusalem.

• In a phone call to Paul Kagame, Obama has urged the Rwandan President to halt support for M23 rebels in eastern DRC.

• The UN has now suspended its vaccination drive in Pakistan after eight of its workers were killed over a three day period.  Taliban commanders in North Waziristan say the drive can continue when the US stops using drones to kill its comrades.  

• The US army has asked for the death penalty in the case against Robert Bales, who is accused of killing 16 civilians in Afghanistan during his fourth round of duty in March this year. 

ICL News - 19 December 2012

• Yesterday, ICC Chamber II acquitted Mathieu Ngudjolo Chui of all charges against him, marking the third acquittal at the international criminal courts in recent months, following the acquittals of Croatian General Gotovina and Kosovar-Albanian Commander Haradinaj at the ICTY.   

• At the ECCC, the International Co-Investigating Judges have issued a statement regarding additional international crime sites in Case 004. 

• Gen Salim Idris, military commander of the Syrian rebels has asked again for defensive weapons, claiming that the war would be over in 1-3 months with such assistance being offered.  He warned that Assad's regime can and will use chemical weapons against his people.  And in a move which arguably signals a loss of confidence in Assad's regime, Russia announced that it was sending warships to Syria, apparently to evacuate its citizens.

• State Dept. spokesperson Victoria Nuland has called Israel's decision to build more settlements in the West Bank and East Jerusalem "provocative" (whereas William Hague referred to all Israeli settlements as "illegal under international law).  '

• The US has blacklisted two M23 DRC rebel leaders, freezing any assets in the US and prohibiting any Americans from transacting with the men.  Ms. Nuland stated that they are still considering whether to sanction senior Rwandan officials.

• A resolution on American-and French-backed intervention in Mali may occur by the end of the week.  Humanitarian organisations have estimated that intervention would displace at least 700,000 persons.  

BANGLADESH ICT: Calls for New Trial in Sayedee Case Following Resignation of Justice Nizamul Huq

Bangladesh ICT chair Justice Nizamul Huq resigned on 11 November 2012 after a number of his emails and conversations were leaked to the media.  The economist carried in depth coverage here which it says "raises legitimate questions about due process that the Bangladeshi authorities should now investigate thoroughly".  The leaked material brings to light pressure put on the judges by the government to deliver quick convictions, and Huq's improper reliance on Belgium-based academic, Ahmed Ziauddin, throughout the proceedings:

Of course, judges can take advice. But any adviser is usually given an official role, known to prosecution and defence. Also as a general rule, advisers tend to stick to their areas of expertise—giving advice on knotty points of law, for example.

Mr Ziauddin does not seem to meet these requirements. Before the tribunal’s order on December 6th his role had not been disclosed to the court or the public. And his advice seems to go beyond particular points of law to include, for example, the drafting of charges. The 17 hours of conversations available to The Economist took place between August 28th and October 20th this year—the equivalent of almost 20 minutes every day. The two men also exchanged more than 230 e-mails in the 12 months to September. Many of these contacts suggest that Mr Ziauddin was involved in aspects of the trial that go beyond what would be permitted to a court adviser or anyone else. Each particular accusation might appear to be modest, or might be explained away. Taken together, they suggest a disturbing pattern.

First, Mr Ziauddin appears to have helped prepare documents for the tribunal, which the judge said would be improper. On May 12th the Brussels-based lawyer sent Mr Nizamul a document called “GhulamAzamChargesFinalDraft”; it was a slightly revised version of a charge sheet he had sent six days earlier. The next day, May 13th, the tribunal issued its indictment against Mr Azam, whom the two men usually refer to as “the big one”. It was identical to Mr Ziauddin’s document. In interviews with us, both men denied that Mr Ziauddin helped prepare documents for the court.

Human Rights Watch has called for a new trial because, with Huq resigning now, this will mean that none of the judges deciding the case against the defendant Sayedee will have heard the entire case.  They also call for the new trial to be held in accordance with different procedural rules as the current ones, they argue, unfair.  

Last Friday, the Bar Human Rights Council of England and Wales also issued a statement calling for a new trial.  They underscore the importance of a new trial in these particular circumstances as it is widely expected that the accused will be sentenced to death upon conviction. The full text of the statement can be found here. 

The Bangladesh ICT was set up to try war crimes, crimes against humanity, genocide and crimes against peace committed during the 1971 liberation war.  Seven accused face charges before the tribunal for their role in the conflict. 

"I'm Afraid This Whole Thing is Headed for Failure" says Judge Sow at Charles Taylor Judgment, SCSL

The judgement in the case against Charles Taylor was read out yesterday at the SCSL chamber in The Hague. Because it went on for over an hour, some of us might have missed what happened right at the very end.  And even if we had caught it, only those actually in the court room were privy to his full remarks.

The international criminal law bureau learned of Justice Sow's remarks, and reported them here.  In his quite extraordinary but short speech, he questions the fairness of the "whole system" that convicted Charles Taylor.  The brevity of his remarks makes it difficult to determine the precise extent of his concern with the project and whether it stops with the SCSL or implicates the ICL project more generally.  Either way, it has implications for the entire field as the criticisms of the Charles Taylor prosecution were surely not unique to the SCSL.

Might this then mark the beginning of some honest discussion about the direction ICL is heading in, so lacking in last year's ICTY legacy conference?  Let's hope so.

Muvunyi Decision (ICTR) on Early Release: A Balancing Act

When Tharcisse Muvunyi's request was granted on 6 March 2012 it was just the third occasion on which a sentence had been commuted in the tribunal's history.  He was sentenced to fifteen years by Trial Chamber III in 2010, a sentence which was upheld by the Appeals Chamber in 2011.  Muvunyi had previously been sentenced to twenty-five years by the tribunal but, following a retrial, just one of his convictions stood.  His sentence was reduced accordingly.  

Under Article 27 of the Statute, the President of the Tribunal may order early release where it is in the “interests of justice" and in accordance with "the general principles of law.”  It is stressed that, because the Tribunal has no means to supervise convicts who are released early, it effectively amounts to “unconditional reduction or commutation of the sentence" (Muvunyi Decision, para. 11).  In determining whether release should be granted, Rule 126 requires the President to consider the gravity of the crimes; treatment of similarly situated prisoners; the prisoner’s demonstration of rehabilitation, and any substantial cooperation with the Prosecution.  An examination of the Muvunyi Decision shows just how spurious those factors really are. 

To begin with, an examination of the gravity of the crimes might make sense in national courts.  But it does not make sense in international criminal courts, which by and large only have jurisdiction over jus cogens crimes.  A jus cogens crime is said to be that which "shocks the conscience of humanity."  When the prohibition against a class of crimes is of such a fundamental and universal character, it is doubtful whether comparing crimes in the class with one another is a legitimate and worthwhile task.  It is also difficult to see how such a comparison can avoid the distasteful conclusion that sometimes, genocide just ain't that bad. In the Muvunyi Decision, the President deals with the issue thus. First, he notes that genocide is, "by definition, the most serious of the crimes under the Statute." He then goes on to observe that most people only get 12-15 years for incitement to genocide, implying that actually it's not really that serious when you get right down to it.  As such, the President held that it was a factor that cut in favour of early release.  Possibly, there are truly exceptional cases in international criminal law which warrant the application of this factor but I wouldn't have thought this was one of them.

Second, substantial cooperation with the Prosecution should never be a factor taken into account when an accused person's liberty is at stake because it infringes on the right to remain silent. Furthermore, giving weight to substantial cooperation with the prosecution at this stage of the proceedings compounds the infringement on the right to remain silent at the sentencing phase, where judges are also allowed to consider substantial cooperation as a mitigating factor.    Where the individual who cooperates reaps the benefits twice, the individual who does not - for whatever reason - suffers the consequence twice.  An innocent suspect (after all, they are all presumed innocent) should not be compelled/incentivised to cooperate.  However, there was no evidence that Muvunyi substantially cooperated, and his sentence was commuted anyway.  What this tells us is far from clear.  

Third, the demonstration of rehabilitation that Muvunyi allegedly showed is frankly insulting.  It was observed that he had been a well-behaved prisoner and, despite the fact that he did not testify in his re-trial (!), he "otherwise behaved in a civilised manner."  I will grant that not all of them behave in a civilised manner. For instance, Vojislav Seselj recently declared: "I am plucking your feathers and your feathers are flying sky high!...I crush you every step of the way.  I am destroying the Hague tribunal as a whole," and so on and so forth.  But Seselj is the exception, not the norm.  The norm is Muvunyi.  I am just not convinced that the cited evidence truly demonstrates rehabilitation.  

Interestingly, the Decision marks yet another departure from the ICTY in sentencing practices. In considering similarly situated prisoners, the President stressed that Muvunyi had in fact served three quarters of his sentence, more than the two third standard for release at the ICTY.  This made his situation similar to the two other cases in which the accused had been released at the ICTR (Decision, para. 12).  With three accused having now been released after the three-quarter mark, and none having been released between the two-third and three-quarter mark, it would appear that three quarters is now an established part of the ICTR jurisprudence on early release.

In the conclusion of the Decision, the President observes that the amount of time Muvunyi had served to date was equal to or exceeded the total sentence of people convicted of similar crimes. A strange observation, perhaps, given that he was one of the three judges on the Retrial panel that handed down the sentence in 2010.  A change of mind, a chance to finally assert his own view, or a mere observation? Like the rest of the Decision, it really isn't clear. 

The Trials of John Demjanjuk

John (Ivan) Demjanjuk died on 17 March 2012 with his presumption of innocence theoretically intact, because his conviction for his role in the Nazi death camp in Sobibor was still pending on appeal in German courts at the time.  For the last thirty-five years of his life, he was the subject of legal proceedings in the US, Israel, Germany, and Spain, who, in 2011, attempted to obtain jurisdiction over Mr. Demjanjuk for alleged crimes involving Spanish nationals in one the camps, where he was thought to have served as a guard.

A citizen of the US since 1958, Demjanjuk was first deported to stand trial in Israel in 1986.  In 1993, the Israeli Supreme Court later quashed his conviction by the lower court when new evidence came to light that cast substantial doubt on his identity as Ivan the Terrible, last name Marchenko, the notorious gas chamber operator of Treblinka, Poland.  The Defence's case of mistaken identity survived evidence that, on Mr. Demjanjuk's entry papers to the United States, he had listed "Marchenko" as his mother's maiden name.  The Defence explained that Mr. Demjanjuk had forgotten her name, and simply guessed, pointing out that it was actually incorrect anyway (her maiden name was Tabachuk).  Although quashing the conviction for crimes on the indictment, the Supreme Court found that it was established that Demjanjuk participated in the extermination process in respect of other camps including Sobibor, to which the indictment did not extend.  A later attempt to re-open the case was rejected, one of the grounds given being the rule against double jeopardy.

In 2009, Demjanjuk was again deported, this time to face charges in Germany.  He was convicted in 2011, following an eighteen month trial for his role as former prisoner-of-war turned prison guard at the Sobibor death camp on the border of Belarus, Poland and Ukraine.   The Prosecution is said to have presented no evidence on specific crimes; it was enough that he was there, and that he did nothing.  

His death now draws to a close the final chapter of a long and convoluted story in international criminal law that is not just a little bit discomfiting.  The Economist's obituary of Mr. Demjanjuk can be found here. 

One Iranian lawyer's fight to save juveniles from execution - animation

This video from amnesty international on the death penalty in Iran might be preaching to the choir, but it's an utterly engaging way to spend a five minute break:

http://www.guardian.co.uk/world/video/2012/mar/27/lawyer-fight-juveniles-execution-animation

Lubanga Judgment (ICC) on Intermediaries

The Lubanga case concerned the use of child soldiers in the DRC.  What has emerged from the first 200 or so pages of the judgment is a serious - in fact, overwhelming - amount of misconduct by intermediaries employed by the OTP to help run its investigation in the field.  As a result, 6 victims and the father of a victim have had their right to participate in the proceedings revoked.  However surprising that decision was, it paled in comparison to the decision to instruct the OTP to open an investigation into offences against the administration of justice based on the case they had presented.  The Trial Chamber writes:

A series of witnesses have been called during this trial whose evidence, as a result of the essentially unsupervised actions of three of the principal intermediaries, cannot safely be relied on. The Chamber spent a considerable period of time investigating the circumstances of a substantial number of individuals whose evidence was, at least in part, inaccurate or dishonest. The prosecution’s negligence in failing to verify and scrutinise this material sufficiently before it was introduced led to significant expenditure on the part of the Court. An additional consequence of the lack of proper oversight of the intermediaries is that they were potentially able to take advantage of the witnesses they contacted. Irrespective of the Chamber’s conclusions regarding the credibility and reliability of these alleged former child soldiers, given their youth and likely exposure to conflict, they were vulnerable to manipulation....The Chamber hereby communicates the information set out above to the OTP [in order that it may prepare charges for offences against the administration of justice] and the Prosecutor should ensure that the risk of conflict is avoided for the purposes of the investigation.

This is surprising, not because it is undeserved but, because quite a lot of Chambers seem not to mind being taken for a ride. International judges have been known to sit through some of the most farcically perjured testimony without batting so much as an eyelid.  Indeed, this Trial Chamber appeared not to mind too much. After all, it sat through evidence that led it to make the following finding:

It was a highly unusual feature of this witness’s evidence that in advance of his meeting with representatives of the OTP in July 2005, he had written the names of some of the main localities he was to mention in his statement on his jeans.  When asked about this, the witness gave a distinctly confused explanation, including that he had done it for the “pleasure of it” before he had met the investigator.

And this one:

Each morning, in meetings at the hotel with the  intermediary prior to the interview, he was given an outline of the  account he was to provide to the investigators. The witness said:

"The intermediary gave me a briefing to use all possible means to hide the exact identity of my parents and my own identity and where I'd gone to school and where I had had military training."

P-0015 indicated that [the OTP's intermediary] told him to hide his Hema ethnicity and his identity (he suggested that the name he was told to use was not a Hema or Iturian name), so that any investigation into his past would be very difficult for the prosecution.

And, the Trial Chamber sat through this evidence, from the intermediary who was perhaps the worst offender: 

"From 2004 to date, there is one thing I would like to emphasise and it is this: I have always remained loyal to my government [which is responsible for referring Thomas Lubanga's case to the ICC] in my service. However, there were sometimes perhaps circumstances in which I might have worked outside of this capacity, but I always remained loyal to my government."

Incidentally, this is an intermediary who also lied about his assistant's death,  hand wrote a fake threatening letter for a witness to help him leave Bunia, and he met with witnesses prior to their OTP interviews in order to rehearse their evidence with them, to name but a few of his alleged trespasses against the court. 

The Trial Chamber blames the prosecution's negligence, in failing to verify and scrutinise these parts of its case before presenting it, for the "significant expenditure on the part of the Court." The Prosecution's role is the misconduct is evident from the judgment (though it will be extremely interesting to see what the investigation turns up). However, it is the Trial Chamber's job to ensure the efficient use of time by the parties. It knew before the judgment what the state of affairs was, so why did it wait until then to call a spade a spade, and why did it let the Prosecution take them for this very long and expensive ride in the first place?  

The Duch Case (ECCC): Provisional Detention in Cambodia, not at the ECCC

At the ICTY an accused can usually expect a long period of provisional detention and a short sentence following conviction.  It was thought that the ECCC might be heading the same way when they handed down a sentence of 35 years to Tuol Sleng's commander, Kaing Guek Eav, alias "Duch," in 2010 (see Trial Judgement). This sentence was further diminished by a 5 year deduction that the Trial Chamber awarded in recognition of the unlawfulness of his continued provisional detention by Cambodian military commission (MC) from 1999-2007.  Now, in light of the Supreme Court Chamber's (SCC) judgement, the summary of which was issued on 3 February 2012, it looks like maybe the ECCC is headed in a slightly difference direction.

The Prosecution called Tuol Sleng a "factory of death" and the SCC agreed.  It sentenced Duch to life imprisonment (See Summary of the Judgement) for what it described as being "among the worst in recorded human history."  A bit flowery, perhaps, but it is difficult to argue that a person found guilty of those crimes does not deserve life imprisonment, is it not?

The increase in Duch’s sentence might actually make a practical difference, as he would have been about 87 years old by the time he had finished serving 100% of the 30 years ordered by the Trial Chamber.  Less likely to make a difference to the accused – now that he has been sentenced to life  - is the majority of the SCC determining that, contrary to the Trial Chamber's opinion, Duch was not entitled either to time served on account of being held in military detention from 1999-2007 in violation of Cambodian law, prior to being transferred to ECCC custody, or to the additional 5 year deduction which the Trial Chamber awarded in recognition of the unlawfulness of his MC detention.

The SCC has identified two reasons for the decision to quash both remedies in the summary of its judgement: 

(1) there were no violations attributable to the ECCC, and

(2) there had been no abuse of process.

The dissent, on the other hand, points to four factors in favour of granting Duch a remedy for the unlawful detention imposed on him:

(3) the high integration of the ECCC into the national Cambodian court system;

(4) the existence of a strong nexus between the respective charges before each court;

(5) the extremity of the deprivation of liberty by any standards, and

(6) the court's unique capacity to provide restorative justice

So, what insight do these nicely enumerated factors give us, who has the stronger argument (does the dissent protest too much?) and what is this really about?  Well, the full judgement is not available yet but no matter because, as Stan Starygin indicates, the judgement probably won't help us anyway.  In his blog, ECCC Reparations, Starygin highlights some of the more awkward questions that he believes the SCC will be keen to obscure in the judgement:

"was there a behind-closed-doors agreement between the UN and the RGC to keep Duch and Mok in detention until the creation of the ECCC could be effected, yes or no? Did the UN, in any way, allude to the RGC that it would be a good idea not to let the national courts prosecute Duch and Mok and wait for the ECCC to do so? Yes or no? Did the UN specifically request that Duch and Mok be detained pending the creation of the ECCC? What was the role of the UNHCHR Office in Cambodia in this? What was the role of the UN Legal Counsel's Office in this?"

The questions Starygin raises concern the issue of “nexus” which, as I see it, appears to be the fulcrum of the entire debate.  But is the ECCC really an international court, as Starygin seems to suggest, or is it a domestic court (though it is of course a hybrid court on paper). Thus, are we talking about a nexus between two Cambodian courts, or a nexus between a Cambodian court and a UN court? 

Anne Heindel of DC-CAM, in her 2009 amicus brief filed in her personal capacity and arguing for the same side as the dissent, argues that courts are integrated, leading to the conclusion that what we are really talking about is a nexus between two Cambodian courts. She points to ECCC's creation under Cambodian law, pursuant to a framework agreement between the U.N. and Cambodia, to demonstrate that it is highly integrated into the Cambodian court system.  A variety of other aspects of the agreement reinforce this view, the most striking, perhaps, being the fact that under the agreement, if the UN withdraws staff and support from the Court, it may continue to function without the international presence (citing Establishment law, art. 46).  

If the ECCC is an essentially Cambodian court, then, how can there not be a nexus between it and a Cambodian military commission set up to try to the same individuals for the same crimes, and a transfer of the accused from the custody of one to the other? And if there is no nexus between two courts in the same state trying the same individuals for the same crimes, can a detainee be passed from court to court indefinitely without any possible hope of relief, each move perfecting the abuses of the last? 

One assumes then that the majority's position must be that it is an international court, or at least, sufficiently internationalised to avoid forming a nexus with the military commission.  A slightly embarrassing concession perhaps, given that the ECCC purport to be chambers in the courts of Cambodia, but nonetheless.

A ham-fisted attempt to deal with this conundrum was the Trial Chamber's original pronouncement on the issue, back in 2009 .  The Trial Chamber held that, however Duch ended up in the ECCC's custody, it could not have been by virtue of the proceedings at the military commission being in any way continued, because the decision to terminate proceedings in military court was taken nearly a year after he had already been taken into the ECCC's custody (see TC Decision, para. 13).  (Unsurprisingly, the Trial Chamber is also quick to stress the internationalised aspects of the ECCC (see paras. 10-11).)  The Trial Chamber's argument seems to be that the less-than-seamless transition from proceedings in one forum and proceedings in the other (combined with the internationalised nature of the latter) somehow proves that there is no nexus; that the two are separate for the purposes of imputing abuses in one institution to the other.  This is unconvincing. Given the dreadfully slow nature of both Cambodian and international bureaucracies, it is hardly persuasive to point to something that may well have been the result of nothing more than poor book-keeping in order to prove the non-existence of a nexus between the two institutions. 

The significance of the non-existence of a nexus is that it allowed the Trial Chamber to provide a remedy for Duch's unlawful detention without getting its hands dirty.  In the end the Trial Chamber held that, under the circumstances of the charges being broadly similar, the violation of his rights being so serious, and the ECCC being well-positioned to do something about it, they would grant him partial relief, which took the form of a 5 year deduction (see Trial Judgement; TC Decision, paras. 18-21, and 28).  Handily, the Trial Chamber was also able to conclude that although Duch suffered an egregious violation of his rights, it wasn't so bad as to render any subsequent attempts to try him on substantially the same charges an abuse of process.  Phew.  

What happened at the military commission stays at military commission, ish.  It was the Cambodian’s fault, and cannot be imputed to the ECCC, which is an internationalised court, says the Trial Chamber.  Except that the UN then swoops in like a fairy godmother and bestows a five year credit on Duch for no other reason than that it can, essentially.  Bit of an interfering godmother, some might say. 

If the UN is really blameless in all this, then what business is it of theirs really as to what happened at the military commission?  Should international criminal tribunals - which are not supranational courts, and are not really forums for the resolution of human rights claims either - attempt to right all the wrongs that occur under domestic law, as the Trial Chamber opted to do?  Does this add to their legitimacy somehow, or does it only add fuel to the fire of accusations that it is a colonialist-imperialist institution? It will be interesting to see what, if anything, the full SCC judgement will bring to the debate. 

As it happens, my favourite argument in this entire debate appears not to have made it into the SCC judgement at all. It came from the Civil Parties' Group 1 back in 2009, who argued that it would not be in the "interests of the international community" to grant him any form of supplementary compensation for the violation of his rights since he has already admitted to committing crimes (see Group 1 Request to Deny Additional Compensation). This argument delights me because it is, in effect, saying that once the accused has confessed - regardless of the voluntariness of the confession, a factor not referenced at all in their Request -  we can get on with the punishment right away, without further ado.  If that is all that is required before the accused can start serving his sentence, then why bother with court nonsense at all? Why not simply set UN torture camps to extract confessions (since the civil parties are apparently unbothered by the possibility of involuntariness) then lock him up and throw away the key once the job is done? (Dear Alain Werner: I know that's not what you meant).  At least that would be one  - probably just the one - step up from what they did at Tuol Sleng.

Rasic Case (ICTY): Contemptible Contempt

Contempt of court is a unique crime at the ICTY; it is the only one not contained in the statute.  Penalties range from the monetary (EUR 7,000 in the case of Florence Hartmann, before it was converted into a sentence of 7 days imprisonment for failure to pay) to seven years imprisonment.  The latter is a heftier sentence than has been meted out in some of the Tribunal's sentences for war crimes.  That contempt of court can be regarded as more serious than war crimes must surely come as a surprise to some people.  

In practice, sentences have hovered around the three month mark.  Jelena Rasic was an outlier at 12 months imprisonment.  However, she has served only about 78 days, the remainder of her sentence having been suspended on the condition that she is not convicted of any other crimes in the next two years.  In arriving at this decision, the Trial Chamber took into account the impact of quasi-solitary confinement (as a result of being the only female in the detention unit) on her unstated health condition, the fact that this was her first prison sentence, and her relatively young age. 

Jelena Rasic was born on 19 April 1983.  She was twenty-five years old when the relevant events occurred.  Her indictment for contempt centered on the procurement of false statements for use in the Lukic defence case while employed as the team's case manager.  She had no legal or investigative training.  Without ever having met Ms. Rasic and having no first-hand knowledge of the case, I could not possibly begin to fathom whether she "knowingly and willfully" interfered with the administration of justice."  But I can say this, from experience: when working on a multi-million dollar war crimes case, with multiple accused, at an international tribunal, being broadcast to the world on a daily basis, nobody leaves a twenty-five year old woman in charge.  

The Chamber partly recognised this, commenting that:

"it is obvious that another or others connected to the Lukic and Lukic case in some way were responsible for recruiting her to commit these offences. In this respect, the Chamber has considered the personal circumstances of  Jelena Rasic, including that she was relatively young at the time of the crimes and that she was inexperienced in the role of investigator in which she was put by the Milan Lukic Defence, even though she was  employed  as case manager."

Unfortunately, the reality is that there are some case managers  - male and female - who know very little about the law or legal ethics.  It is not for stupidity or laziness, but for a complete lack of legal education or support structures that this situation arises.  If case managers are lucky enough to get trained in at all, it is too often by someone who isn't up to the task.  In most circumstances case managers have zero job security.  A typical workday entails horrifying amounts of time spent updating excel spreadsheets, as well as photocopying, tabbing, proofing and pdf-ing.  Some of those people might pick up a few bits and pieces of law along the way, but after a thirteen hour day, seven day week of typical case management, most non-lawyer case managers won't have a lot of time left over for the study of law. 

The witness whose testimony Rasic is said to have bought was not a stranger to the ICTY.  The OTP apparently had several statements from him in which he indicated that he would cooperate in exchange for money.  In this case, it appears that the OTP refused to play ball.  But sometimes Prosecution witnesses do receive a benefit that is somehow connected to their evidence in a case, such as relocation, visas, permits, support for asylum applications; things that make life for people from a post-conflict region a bit easier.  And in spite of frequent and vigorous protestations from the Defence to the contrary, there is nothing improper about the assistance provided to witnesses in the majority of cases.  There are, however, the exceptional cases where the witness's pre-relocation statements contradict each other or aren't corroborated by any other evidence in the case, but assistance is granted anyway, paving the way for the witness's testimony.    No such cases have ever lead to contempt charges nor would they in all likelihood.

There can be no question that the conduct to which Ms. Rasic pleaded guilty must be addressed.  It is contemptuous not just of the Court, but of the parties, the victims, and the other accused who play by the rules day in and day out. Whether Defence or Prosecution, no one should be allowed to interference with the administration of justice. But it must at the same time be observed that the practice of the Tribunal is much greyer than we might like to think.  And I would respectfully suggest that the power to deprive individuals of their liberty, conferred on the Tribunal by the Security Council under Chapter VII of the Charter of the United Nations, was not intended to reach individuals such as Ms. Rasic.  This cannot have been the best way to deal with an extremely unfortunate situation.