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.  

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?