IHL Dialogs: Prosecutors’ International Criminal Law Round-Up

I had the pleasure of attending the 2014 IHL Dialogs last week in lovely Chautauqua, NY.  The event—co-hosted by IntLawGrrls, the Robert J. Jackson Center, the American Bar Association, and the American Society of International Law (among others)—is an annual gathering of international criminal law professionals, government officials, and academics in a relaxed setting to take stock of the field, evaluate recent developments, and think about how the international justice system will and should develop in the future.  We’ve covered prior Dialogs in the past on these pages (see here and here).

The Gambia Trialprosecutors IMG_6580

The event began with a fascinating discussion at the Robert H. Jackson Center about one of the first efforts at hybrid justice: the 1981 trials of would-be coup leaders in the Gambia.  The coup, staged by local actors, was rumored to be part of a Pan-African Marxist conspiracy spearheaded by Muammar Gaddafi.  In response, the Gambia invoked a mutual defense pact with Senegal, whose troops helped to quickly oust the rebels.  Thousands of people were detained in connection with the uprising. Fearing that key members of the government and judiciary had been involved in the attempt, the Gambia established special tribunals staffed by lawyers and judges from the British Commonwealth to assess the legality of the detentions and prosecute those who were deemed most responsible.  All told, 45 people were tried in 4 years.

The conversation at the Jackson Center involved Hassan Jallow (ICTR Chief Prosecutor) and Fatou Bensouda (ICC Chief Prosecutor), who were young Gambian professionals working in the judicial system at the time, and Sir Desmond Da Silva (United Kingdom) who, as an expert on the 1351 English Treason Act, was seconded to help with the trial. Jallow covers the event in more detail in his recently-published memoire, Journey for Justice.

Ambassador Tiina Intelmann on the Worrisome State of International Justice

Ambassador Tiina Intelmann (Estonia), President of the ICC’s Assembly of States Parties (ASP), gave a sobering keynote address at the Chautauqua Institution about the state of international justice.  (The YouTube video is here). Intelmann observed that the security situation in the world changed dramatically over the summer, suggesting that Francis Fukuyama was prematurely optimistic in his essay, The End of History.  She noted that the ICC was established during the peek of global optimism and unanimity about the prospects of international justice, but surmised that such an effort would fail if it were attempted today.  Although the number of cases before the Court (21), the range of situations being referred to the Court (8), and the number of requests for the Court to get involved in conflicted areas around the world (1000s) have reached unprecedented levels, support for the Court is waning in some circles.  This is true most notably among certain members of the African Union, who have indicated that maintaining cooperation and a positive attitude toward the Court mayTiina IMG_6507 generate economic and political problems.  She cautioned that this ambivalence is not limited to Africa, however.  Even though one European country has annexed part of another European country, some European states—including long-time supporters of the Court and of international law—are “remaining neutral” and raising concerns about the local impact of the sanctions that have been imposed.   She observed that when complicated situations come closer to home, states start thinking more parochially about their own national interests.

Ambassador Intelmann also argued that while Article 27 of the ICC Statute—withholding immunities traditionally enjoyed by heads of state—was a major achievement in Rome, the Kenya and Darfur situations reveal that prosecuting sitting heads of state is not something the international community is very good at.  She lamented the fact that the ASP, which was designed as an administrative body to deal with budgetary and other more quotidien issues, turned itself into a political body at its last session when considering proposals to undo Article 27 and limit the Court’s ability to prosecute heads of state.  These proposals remain on the table and will likely appear on the ASP’s agenda again soon.

Prosecutors’ Roundup

A highlight of the IHL Dialogs is always the prosecutors’ roundup, which is followed by a year-in-review offered by a leading ICL academic.  Professor and Dean Valerie Oosterveld of Western Law in Ontario, Canada, delivered the 2014 ICL Year in Review.  The material below is a composite of several panels convened over the course of the Dialogs that covers some highlights of the year’s events.  

International Criminal Tribunal for the former Yugoslavia (ICTY)

Serge Brammertz (Belgium) noted that the tribunal is close to the end of the trials involving Radovan Karadzić and Ratko Mladic—two defendants whose actions originally inspired the creation of the tribunal back in 1994.  These two long-time fugitives were finally arrested as a result of the policy of European Union (EU) to make membership negotiations in the region contingent on a showing of full cooperation with the ICTY.  In fact, 3 weeks before Mladic was arrested, the Organization for Security and Cooperation in Europe (OSCE) conducted a survey in Serbia.  Over 60% of the people reported that they were “against Mladic’s arrest,” but 75% were in favor of joining the EU.  Those with the power to effectuate the arrests clearly understood the import of these numbers and so the political agenda paralleled the judicial agenda.  This carrot/stick strategy is not operative in Africa, unfortunately.

The Defense in Karadzić rested in May; the parties’ briefs were submitted this week; final arguments will be heard a month from now; and the judgements are due next spring.  The Mladic timing is more complicated due to his ongoing health issues.  So far, 30 witnesses have testified for the Defense, and there are more than 150 waiting in the wings.  The trial is expected to conclude next year.  As an odd twist to these cases, Karadzić in his defense moved to subpoena Mladic as a witness in order to debunk the Prosecution’s theory of joint criminal enterprise (JCE).  Mladic refused to appear voluntarily.  The Trial Chamber issued the subpoena on the grounds that the protection against self-incrimination does not preclude the issuance of a subpoena in another case, even one proceeding before the same court.

Brammertz noted that relevant evidence is still being adduced.  For example, a new mass grave containing over 400 remains (285 of which have been identified) was discovered in December 2013.  Forensic analysis suggests that the graves were prepared days and weeks before the executions took place, suggesting a high degree of pre-meditation.  The Office of the Prosecution (OTP) has asked to reopen the Mladic case to include this evidence in support of the genocide charges.  (A similar request in Karadzic was rejected in March 2014 on the ground that it would unfairly and unnecessarily prolong the trial).

Brammertz noted that the only ICTY convictions for genocide by the ICTY to date have concerned the attack on Srebrenica. Other episodes of ethnic cleansing have given rise to convictions for persecution and other crimes against humanity.  In these prior proceedings, the Prosecution did not establish the degree of organization and systematicity that the judges expected to see for a genocide conviction.  The Karadzic and Mladic cases may offer the last chance to prove broader genocide charges in the war in the former Yugoslavia.

Brammertz noted two important jurisprudenial developments emerging from the ICTY in 2013.  The first concerns whether “specific direction” is an element of aiding and abetting liability, as held by the ICTY Appeals Chamber in the Perisic case in an extremely terse opinion devoid of reasoning.  Perisic, chief of staff of the Serbian army in Belgrade, was indicted for aiding and abetting by virtue of his provision of substantial support to Bosnian Serb forces with the knowledge that they were committing massive crimes in neighboring Bosnia.  The majority of Appeals Chamber (Judge Liu dissenting) was of the opinion that although Perisic had provided substantial support to Bosnian Serb forces and was aware of their commission of crimes, he had not specifically directed this support toward the commission of crimes.  Because he was a remote accomplice, the Appeals Chamber demanded a higher threshold of proof.

Brammertz noted, however, that in a subsequent appeal in the Nikola Sainović case, a differently-constituted Appeals Chamber—now presided over Judge Liu who had dissented in Perisic—rejected the reasoning in Perišić. In an erudite opinion that exhaustively analyzed caselaw dating back to the World War II period, treaties, comparative jurisprudence, and national penal codes, the Chamber came to the “compelling conclusion that ‘specific direction’ is not an element of aiding and abetting liability under customary international law [and] unequivocally rejects the approach adopted in the Perišić Appeal Judgement.” Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, paras. 1649-50 (Jan. 23, 2014).  The same result was reached by the Special Court for Sierra Leone in the Charles Taylor case. Brammertz applauded the fact that Perisic’s specific direction requirement is now all but a jurisprudential dead end.  In light of Šainović, and the fact that two different Appeals Chambers had reached incompatible results, the OTP submitted a request for reconsideration in Perisic on the grounds that the sound administration of the law required the tribunal to clarify the law and that it would be a miscarriage of justice were Perisic to remain acquitted. The President of the ICTY, President Meron—the most prominent proponent of the specific direction concept—rejected the motion, reasoning that neither the Statute nor the Rules of Procedure and Evidence (RPE) contemplate such a procedural mechanism.

The second development relates to prosecutions for sexual violence. Following the release of the ICTR Office of the Prosecutor’s Best Practices Manual for the Investigation and Prosecution of Sexual Violence, the ICTY OTP will be producing a similar manual about what it has learned in investigating and prosecuting these crimes.  Brammertz noted that in early ICTY cases involving charges of killing, looting, and sexual violence, the latter charges often resulted in acquittals of accomplices or superiors at the trial phase.  The judges in those cases were of the opinion that sexual violence was not an express part of the particular military campaigns.  Over time, however, these acquittals were overturned, and the judges today recognize that such crimes are equally as foreseeable in armed conflict situations as other crimes of violence and against property.

The OTP continues to work with its counterparts in the former Yugoslavia on capacity building, training, and information sharing.  Over 2,000 domestic cases remain to be finalized.  The EU is putting a lot of resources into the region.  One of the most successful initiatives involves the integration of Serbian, Croatian, and Bosnian prosecutors into the judicial structures.  Brammertz called upon the international community to maintain pressure on the Balkan states to ensure that the remaining domestic cases move forward.

International Criminal Tribunal for Rwanda (ICTR)

Hassan Jallow (Gambia) noted that the ICTR had just observed the 20th anniversary of the genocide in Rwanda and the establishment of the ICTR.  All trials at first instance have been completed; the tribunal is now consumed with finishing appeals and undertaking legacy work, including a major conference scheduled for November 6-7, 2014The Butare appeal—which involves the first rape charges against a woman, Pauline Nyiramasuhuko, along with charges against her son, Arsène Shalom Ntahobali—still needs to be argued.  The 6 accused were convicted by Trial Chamber and sentenced to various terms of imprisonment.  The appellate hearing will take place in December.   The ICTR will issue the decision by September 2015 and then close its doors.

In other developments, in June 2014, the Appeals Chamber affirmed the 30-year sentence against Augustin Bizimungu, the former Chief of Staff of the Rwandan Armed Forces depicted in the film Hotel Rwanda, although some convictions were overturned.  (A summary of the Judgement is here).  In particular, the Appeals Chamber followed a controversial line of precedent emerging from the ICTY/R (first initiated by the ICTY in Hadžihasanović and followed thereafter in Orić) in ruling that a superior who assumes command after the commission of offenses cannot be held responsible under the doctrine of superior responsibility for failing to punish individuals who were not, at the time they acted, his subordinates. In this case, Bizimungu assumed command 4 days after certain direct perpetrators, now his subordinates, committed serious crimes.  The Appeals Chamber followed Hadžihasanović in holding that the superior must exercise effective control over the perpetrators at the time they acted in order to be held liable pursuant to the doctrine of superior responsibility.

This precedent has always produced detractors.  Article 7(3) of the ICTY Statute and Article 6(3) of the ICTR Statute, and indeed all formulations of the superior responsibility doctrine, make clear that the duty to prevent and the duty to punish are two separate but inter-related duties and that liability may attach with respect to either. The two duties are not unrelated, however, because rigorously punishing past bad acts by subordinates will contribute to the prevention of future crimes. Enabling a newcomer to be prosecuted for failing to punish known bad acts committed prior to his promotion will ensure that the superior responsibility doctrine accomplishes what it is meant to accomplish—the creation of strong legal incentives to rigorously investigate and, where appropriate, prosecute crimes committed by subordinates. The theory is that when a commander is appointed, he not only takes over the rights and privileges of his predecessor, he also assumes his predecessor’s duties and obligations.  Ensuring the predictability of investigation and punishment will prevent a culture of impunity from taking root within an armed force. This, in turn, will go far toward preventing the commission of abuses in the first place.

The acquittal in the Military II case in February 2014, which involved former commanders in the Rwandan army (see our coverage here), generated shock waves in Rwanda.  The OTP in its outreach had to explain that this is the way that the judicial process functions. By way of comparison, they point out that 40% of gacaca proceedings resulted in acquittals.

The ICTR is also focused on a number of legacy projects in order to identify and publish lessons learned and best practices.  For one, the OTP released a Manual of Best Practices on tracking and arrest of fugitivesa vexing problem in international criminal law.  The ICTR still has indictments pending against 9 fugitives; 6 will be referred to Rwanda for trial, and Rwanda has taken over tracking responsibilities.  The other 3 dossiers have been referred to the ICTR’s successor mechanism: the U.N. Mechanism for International Criminal Tribunals (MICT).  Both this Manual and one on prosecuting sexual violence are being used by Interpol as training materials for national jurisdictions.   The OTP also plans to publish a manual on empowering national jurisdictions to enable them to investigate and prosecute international crimes based on the ICTR’s experience referring cases under Rule 11bis. All these legacy projects will be completed by September 2015.

When asked about whether the one-sided justice meted out by the ICTR (and by domestic courts and gacaca proceedigns for that matter) would contribute to peace and stability in Rwanda, Jallow noted that the genocide was the main crime base of concern to the ICTR, which was not capable of prosecuting everyone who committed crimes during that fateful 100 days.  He noted that the government should be seen to be prosecuting crimes committed by the Rwandan Patriotic Front (RPF) and cited 30-40 prosecutions before military courts of soldiers accused of committed revenge killings. The ICTR invested heavily in capacity building in Rwanda in order to improve the capabilities of the local courts and eventually enable Rule 11bis cases to return to Rwanda. It also continues to conduct outreach in Rwanda to dispel misconceptions.  For example, there are now 11 ICTR information centers around the country.

International Criminal Court

Fatou Bensouda (the Gambia) acknowledged that the ICC has faced a couple of challenging years.  Her office has instituted significant internal changes (described as “tectonic”) at the organizational and policy level with the aim of enhancing efficiencies and deliverables.  The new OTP Strategic Plan for 2012-15, which was adopted last fall, reflects an entirely different approach to the OTP’s core activities.

For one, her staff are proceeding in a serious and committed manner to improve the quality and effectiveness of their preliminary examinations.  In the last year, the OTP opened new preliminary examinations in Ukraine, the Central African Republic (CAR), and Iraq, bringing the total to 10.  In the last year, several preliminary examinations advanced to later phases, and the examination into the situation in the Republic of Korea was closed. Preliminary examinations aim to establish whether reasonable grounds exist to move forward with a formal investigation while also promoting genuine national proceedings. The OTP is also increasingly diversifying the forms of evidence on which it relies with an eye toward depending less on witness testimony; it is also enhancing its other investigative capabilities (e.g. in forensics and cyber investigations).  Her staff are shifting away from focused investigations toward more in-depth and open-ended investigations to ensure that the cases are built on solid foundations. They will undertake comprehensive case reviews throughout the life cycle of each case in order to continually test their working hypotheses. They will look to prosecute more lower and mid-level perpetrators in order to build cases against those most responsible. This greater rigor will ensure that the cases are as trial-ready as possible at the initiation of the judicial process (e.g., when they request an arrest warrant or seek confirmation of the charges) in light of some recent rulings demanding greater proof at these preliminary stages.

The OTP is also engaged in a robust recruitment campaign to hire more experienced talent, particularly in the Investigations and Prosecutions Divisions.  The goal is to create a series of joint teams headed by a senior lawyer with strong domestic and international experience.  Previously, the leadership corps was composed of only three senior lawyers at the head of each Division: Investigations, Prosecutions, and Cooperation/Complementarity.  Her office has produced a Code of Conduct that provides clear guidelines to ensure that the Office exhibits an impeccable standard of professionalism, independence, efficiency, and integrity.

In terms of substantive areas of focus, the OTP has released a new policy on sexual and gender-based violence (SGBV) that demonstrates the Office’s, and her personal, commitment to pursue and enhance these prosecutions.  The paper will serve as a reference guide for states and other actors and will be officially launched on the margins of the next meeting of the ASP in New York.  A children’s policy is forthcoming, under the leadership of IntLawGrrl Diane Marie Amann, of the University of Georgia School of Law, who is the OTP’s Special Adviser on Children in and Affected by Conflict.  The OTP is also developing a new comprehensive policy on cultural property.

In terms of courtroom proceedings, the ICC convicted Germain Katanga (DRC) of war crimes and crimes against humanity and sentenced him to 12 years’ imprisonment.  The Judgment is now final following the parties’ withdrawal of their appeals.  The ICC recently confronted a dilemma with respect to three witnesses from the DRC who appeared in the Katanga case.  Prior to giving testimony, the three were imprisoned in the DRC pending charges against them.  When they arrived in The Hague, they applied for asylum, arguing that they were at risk of persecution if they were returned to the DRC because they had implicated the current Presdient of the DRC, Joseph Kabila, in one of the massacres at issue in the Katanga case.

The ICC was thus confronted with potentially competing obligations. Article 93(7) indicates that the Court can request the temporary transfer of a witness to the Court, but must return the person without delay.  Article 21(3) states that the Court must apply its applicable law consistent with internationally-recognized human rights law, including the principle of non-refoulement, and without adverse distinction.  The Court also was wary of jeopardizing the relationship between the ICC and the Netherlands.  In the end, the Appeals Chamber ordered the immediate release of the witnesses into the custody of the Netherlands on the grounds that it has no jurisdiction over asylum claims.  The Court ruled that although Article 21(3) requires that Article 97 be interpreted in conformity with international human rights law, it does not require the Court to violate its other obligations.  A Dutch Court ultimately ruled that the witnesses were not entitled to asylum because they faced no credible risk of harm upon return. At the same time, the Court ruled that the Victims and Witnesses Unit (VWU) should oversee the Congolese proceedings to ensure the witnesses’ security.  Although the VWU regularly conducts health and welfare checks of witnesses, monitoring local trial processes is a new function.  A petition before the European Court of Human Rights on the witnesses’ behalf remains pending.

In other cases, thirteen charges of war crimes and 5 of crimes against humanity were confirmed against Bosco Ntaganda in June 2014; his trial is slated to start this year.  Meanwhile, that same month, 4 charges of crimes against humanity were confirmed against Laurent Gbagbo, former President of Côte d’Ivoire (CDI). Charles Blé Goudé, also of CDI and head of the Young Patriots, was surrendered to the Court in March 2014 after being held in arguably unlawful pretrial detention; his confirmation of charges hearing is scheduled for September 22, 2014.

These positive developments are undermined by a more troubling phenomenon: the increase in the number of cases suffering from witness interference and intimidation, particularly in the Kenya and CAR situations.  This new challenge directly threatens the integrity of the Court and forces the OTP to devote existing resources to investigate these efforts to obstruct justice to the detriment of core cases.  In the Bemba case (CAR), the ICC issued 5 arrest warrants, including against Jean-Pierre Bemba himself, for Article 70 obstruction offenses.  In an example of excellent state cooperation and coordination, three individuals were simultaneously arrested in the Netherlands, Belgium, and the DRC; France subsequently transferred a 4th suspect to the Court.  The OTP is now preparing for the confirmation of charges hearing.  Likewise, in the Kenya situation, a warrant of arrest, still outstanding, has been issued against Walter Barasa, who is accused of attempting to corruptly influence witnesses.

Bensouda noted that the persistent misperceptions about the Court also remain a challenge. The vacuum created by the inability of the Court to undertake comprehensive outreach is filled by skeptics and opponents of the Court.  The OTP is aspiring for stronger relations with the African Union by engaging with AU members at all levels and as much as possible through diplomacy and technical seminars. This helps to correct misunderstandings that may have been deliberately created by interested parties.  Although the tension with the AU is highly salient, over 50% of the ICC’s requests for assistance go to African states, and many respond positively. In addition, AU members continue to seek the involvement of the Court.  Most recently, the OTP has opened a new preliminary examination in the CAR in light of the Seleka rebellion.

An important way that states and states parties can support the Court is through ensuring it has adequate funding to carry out its mandate.

Special Court for Sierra Leone (SCSL)

Brenda Hollis (United States), Chief Prosecutor of the SCSL (“the little engine that could”) and of the SCSL’s residual mechanism (the Residual Special Court for Sierra Leone (RSCSL)) made note of two events of primary importance.  The first was the unanimous judgment affirming the verdict and 50-year sentence against ex-President of Liberia Charles Taylor.  As discussed above, the Chamber held that specific direction is not an element of aiding and abetting under customary international law.  Rather, liability exists when an accused’s acts substantially contribute to the commission of a crime and the accused knew, or was aware of a substantial likelihood, that his or her acts would assist in the commission of crimes.  The SCSL noted that requiring evidence that the defendant specifically directed his assistance to the commission of crimes would allow top-level perpetrators to enjoy impunity for their actions.  The SCSL also ruled that there is no hierarchy among the forms of liability in Article 6(1) (planning, ordering, instigating, committing, or aiding and abetting).  Rather, courts should adopt individualized sentencing taking into account the gravity of the crimes, the extent and consequence of the totality of the misconduct, and the personal circumstances of the accused.

The SCSL is now the first ad hoc tribunal since World War II to close its doors.  The residual mechanism—which shares an administrative platform with the ICTY in The Hague and has a permanent seat in Freetown—has officially taken over and will deal with ongoing issues of witness protection, assistance to national proceedings, archives, parole and requests for early release, and other lingering issues. For example, two prisoners requested early release; the OTP unsuccessfully opposed these motions, so the individuals will enjoy early release subject to conditions.  The RSCSL—which is funded by voluntary contributions—has a small budget, but this—paradoxically—makes fundraising difficult. The residual mechanisms for all the tribunals must remain in place for as long as there are people in prison. And, the problem of witness protection remains acute.  There are witnesses and victims in Sierra Leone who put powerful people in jail; they need to be protected so that their courage does not put them in jeopardy.

The SCSL has one outstanding indictment: that against Johnny Paul Koroma, the chairman of junta that overthrew the Sierra Leonean government in 1997.  It has been surmised that JPK was killed on the order of Charles Taylor, but—like Elvis—stories of his sightings continue to circulate. If he is located, and if his case cannot be referred to a national jurisdiction, he will be prosecuted by the residual mechanism.  Charles Taylor wants to serve his sentence in Rwanda rather than the United Kingdom, ostensibly to be closer to his family.  This motion is still pending.  All told, the SCSL prosecuted 9 individuals.  To the extent that more direct perpetrators are punished it will have to be before domestic courts.  Because of the Lomé Amnesty, the Sierra Leonean courts have not tackled this impunity gap.  As a result, direct perpetrators continue to live in their communities, side-by-side with their victims. Amnesty laws do not contribute to lasting peace, because people yearn for some measure of accountability when wrongs are perpetrated upon them.

At the moment, the RSCSL is a lean organization; the OTP has one full-time prosecution legal adviser and evidence officer.  It has completed the task of archiving the SCSL files, which can be comprehensively searched.  The RSCSL has already responded to 5 state requests for information.  The SCSL is considered a success.  An independent survey conducted in Sierra Leone by No Peace Without Justice indicated that people believe the Court carried out its mandate appropriately and contributed to reconciliation in the country.

Extraordinary Chambers in the Courts of Cambodia (ECCC)

Nick Koumjian (United States), international Co-Prosecutor of the ECCC, reported that the ECCC finished phase 1 of the case against the most senior surviving members of the Khmer Rouge (Case 002/01). The charges were limited, involving initial transfers of the population in April 1975, including the evacuation of Phnom Penh, and one early massacre.  The ECCC convicted the 2 octogenarians and accorded life sentences. The appeal is expected to last approximately 18 months. Although the death of Ieng Sary mid-trial meant that no final judgment was issued against him, the real legacy of the ECCC is the recognition of what happened to the victims, who want to see their experience reflected in the judicial process.  The judgment in Case 002/01 contained ground-breaking provisions offering reparations for victims.  The German, Australian and Swiss governments have committed to help fund these projects.  Tribunal rules had originally required convicted persons to pay for any reparations; however, a 2010 rule change allowed for reparations to be funded by external donors.

The second phase of Case 002, involving broader charges, is proceeding, and the ECCC is working on ways to accelerate the process including by admitting all of the evidence from Case 002/01 into Case 002/02.  These new charges include crimes committed in all detention centers (including S-21, or “Tuol Sleng”, which was already the subject of Case 001 against “Duch”).  Additional charges include persecution, forced marriages, rape (of individuals who were forced to “consummate” their marriages), and genocide. The Genocide Convention does not list political groups among its protected groups, so most mass killings in Cambodia have been charged as mass murder.  However, genocide charges will go forward involving Vietnamese victims in Cambodia (a national group) and Cham Muslims (a religious group).  The fact that a United Nations-funded and -supported Court has leveled charges of genocide on behalf of a Muslim community is a feature of the ECCC that is not well appreciated. The trial phase of Case 002/02 is expected be completed in mid-2017.

Investigations are continuing in Cases 003 (involving 1 suspect) and 004 (involving up to 3 suspects) without impediment on the instigation of the international Co-Investigating Judge (CoIJ), Mark Harmon (USA), following a disagreement between the national and international CoIJs.  To date, about 300 interviews have taken place.  In Case 004, the OTP made additional submissions asking the CoIJs to expand their inquiry into forced marriage and rapes (including rapes outside of forced marriage).  The ECCC will for the first time confront the question of whether rape is a foreseeable result of orders to cleanse or otherwise mistreat a civilian population.

The Secretary General’s Special Envoy to the ECCC, Ambassador David Scheffer of Northwestern School of Law offered an update on the ECCC from his perspective. Most importantly, the budgetary crisis previously facing the ECCC (due to the diminution of Japanese money from both the international and national budget following the 2011 tsunami) has significantly eased.  Following upon precedent from the SCSL, the U.N. General Assembly issued a “commitment authority” (which is analogous to a subvention grant) of $15.5M in April 2014.  These funds can be drawn upon if funding gaps arise over the course of the year, which is important for a whole range of reasons not the least of which in that it allows the ECCC to sign yearly contracts with its staff members.  Furthermore, the Principal Donors Group (PDG) has expanded and now includes Sweden and additional donors have been identified (notably Chile and Qatar).  Although foundations have not been a significant source of funds for the ECCC, they may be interested in fudning reparation projects. And, Cambodia has committed to pay the Cambodian staff as contemplated by the ECCC’s constitutive documents (although international donors have covered this obligation in the past).

In addition, the statistics surrounding ECCC outreach are staggering.  Public attendance in Cases 001 and 002 is in the thousands (36, 493 and 113, 830, respectively). The ECCC undertook 58 outreach visits, reaching over 86,000 people.  Over 90,000 people have visited education centers about the court.

Judge Silvia Cartwright (New Zealand) retired and the ECCC is close to announcing her successor.  Dame Cartwright will join the team of experts investigating the crimes committed in Sri Lanka during that country’s civil war under the auspices of the U.N. High Commissioner for Human Rights.

The goal of the ECCC’s staff is to bring the Court to a conclusion that will serve the interests of the victims of Cambodia.  Concerns about interference in the judicial process are diminished, and disputes between the Co-Prosecutors are being resolved through a judicial process.

Special Tribunal for Lebanon (STL)

The STL Chief Prosecutor, Norman Farrell (Canada), was not in attendance, but participants discussed the current proceedings before the STL.  In April 2014, the STL revealed the existence of contempt proceedings against two Lebanese journalists and two news corporations in Lebanon that are accused of publishing the names of several witnesses subject to protection measures and in violation of a court order.  The STL Statute is silent on the issue of contempt, so the tribunal had to rely upon its inherent powers to rule on the issue, which threatened the public confidence in the STL’s ability to protect the confidentiality and safety of witnesses.  The Statute does make clear that it has primary jurisdiction over only natural persons.  The OTP argued that it should be able to exercise contempt jurisdiction over legal persons, such as media organizations, in order to ensure the integrity of the judicial process.  In July 2014, the tribunal, however, declined to proceed against the media organizations. The Tribunal ruled that in the absence of provision within the Statute or Rules of Procedure and Evidence allowing for the exercise of jurisdiction over legal persons, any ambiguities need to be resolved in favor of the accused (in dubio pro reo).

3 thoughts on “IHL Dialogs: Prosecutors’ International Criminal Law Round-Up

  1. This substantive report, more fascinating than any PBS TV mystery, is hope-making and hope-dashing. The outcome, the winner if you will in a time when respect for and implementation of rule of law are very much dependent on political conveniences and financial niceties rather than principles of scholarship and objectivity, cannot be predicted at this low point in our global society’s trajectory.

  2. Pingback: Top 10 Year in Review: International Criminal Justice | Just Security

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