Extraordinary Chambers in the Courts of Cambodia
The ECCC concluded its first trial: that of Duch (below right), the former head of Tuol Sleng detention center where upwards of 12,000 people were detained, tortured, and executed during the Khmer Rouge era. As will be discussed in subsequent posts, Duch’s Co-Counsel advanced two contradictory defenses:
- that he should receive mitigation in sentencing for his de facto plea of
guilty, remorse, acceptance of responsibility, and assistance to the prosecutors and - that he should be acquitted because he was not one of the most responsible for the Khmer Rouge crimes and was only following orders under duress.
In other ECCC news, the initial judicial investigation in Case 002, which involves Ieng Sary, Ieng Thirith, Nuon Chea, Khieu Samphan—the four regime leaders in custody, has concluded. The parties may request additional investigative action, and the Co-Prosecutors are entitled to make a Final Submission requesting particular charges. Once these proceedings have concluded, the Co-Investigating Judges will issue their Closing Order, which marks the end of the investigation and is analogous to an indictment. The target date is September 2010. For more details on the investigative stage, see here. The Co-Investigating Judges have already indicated that, pursuant to the Co-Prosecutors’ Introductory Submission, they are investigating the following crimes: war crimes, crimes against humanity (including enforced disappearances and forced marriage), genocide, and national crimes. They also ruled that they will consider the liability of the accused according to the doctrine of joint criminal enterprise (para. 21), but only in respect to international crimes (para. 22). Ieng Sary’s effort to have Co-Investigating Judge Marcel LeMonde disqualified on grounds of bias was rejected as unsubstantiated.
After receiving the go ahead from the Pre-Trial Chamber as discussed here, the Co-Prosecutors earlier submitted Introductory Submissions with respect to five additional suspects.
The International Criminal Court
The ICC's Assembly of State Parties concluded a meeting in The Hague at which time they finalized the agenda for the first Review Conference in June 2010. Summaries of the proceedings are available here. At the meeting, delegates forwarded several proposals for amendments to the Review Conference for its consideration. These are:
- A proposal by Liechtenstein (former Chair of the Special Working Group on the Crime of Aggression) for the inclusion of a definition of the crime of aggression. For a discussion of the text of this amendment, see our prior series on the crime of aggression.
- A proposal by Belgium and other states to add several weapons crimes (including employing poison weapons, asphyxiating gases, and expanding bullets) to the provisions addressing non-international armed conflicts. (These acts are already prosecutable before the ICC when committed within an international armed conflict.)
Gender Justice at the ICC
At the recent ASP meeting, the Women’s Initiative for Gender Justice -- at which 3 IntLawGrrls guest/alumnae, Brigid Inder, Kate Orlovsky, and Katrina Anderson (prior post) work -- presented its fifth quasi-annual Gender Report Card for 2009, The report revealed that the ICC has reached gender parity in professional staffing. (Indeed, 53% of judges are now female.) The report also recounts progress in adjudicating gender violence and protecting victims and witnesses in the situations under consideration by the Court and how the Trust Fund for Victims has managed its funds.
The Ad Hoc Tribunals
Upon an appeal by the Prosecutor, the ICTY Appeals Chamber quashed the Trial Chamber’s acquittal in Prosecutor v. Šljivančanin on one count and increased the sentence of for crimes committed against Croatian civilians at Vukovar Hospital. The ad hoc tribunals allow the Prosecutor to appeal an acquittal and achieve a conviction before the Appeals Chamber without further possibility of review. Šljivančanin (right) filed a motion for reconsideration on the ground that he should be entitled to appeal the new conviction in keeping with international human rights principles. In response to Šljivančanin’s motion for reconsideration, the Appeals Chamber ruled that settled jurisprudence made clear that no additional appeal was allowed. Although this jurisprudence is indeed settled, it has remained contentious.
The right to appeal was not in the Charters of the Nuremberg or Tokyo Tribunals. Article 26 of the Nuremberg Charter, for example, held that:
The judgment of the Tribunal as to the guilt or the innocence of any Defendant … shall be final and not subject to review.By contrast, Article 17 of the Charter of the Tokyo Tribunal provided only that an appeal of sorts could be lodged with the Supreme Commander for the Allied Powers, General MacArthur. Although the defendants exercised this right, MacArthur upheld the verdicts, prompting the unsuccessful habeas petitions to the U.S. Supreme Court.
The modern tribunals depart from this previous practice. Indeed, as discussed above, the rules of these tribunals provide that both the defence and the prosecution can appeal adverse judgments. A new verdict is not inevitable, however; it is possible that the Appeals Chamber will order a retrial. For example, Rule 117C of the ICTY Rules of Procedure and Evidence provides that “in appropriate circumstances the Appeals Chamber may order that the accused be retried according to law.”
The right to appeal a criminal conviction is enshrined in many international human rights treaties. The International Covenant on Civil and Political Rights, for example, provides at Article 14(5) that
Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.Article 2(2) of the more recent Seventh Protocol to the European Convention on Human Rights, however, strikes a balance between the right to an appeal and the demands of expedient and efficient justice by making allowances for situations in which an individual is convicted following an appeal against an acquittal. Protocol No. 7 to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, E.T.S. 117. To be sure, these human rights treaties are addressed to domestic criminal proceedings and, as such, are not directly applicable to the international tribunals. The ICTR, however, has noted that
The International Covenant on Civil and Political Rights is part of general international law and is applied on that basis. Regional human rights treaties, such as the European Convention on Human Rights and the American Convention on Human Rights, and the jurisprudence developed thereunder, are persuasive authorities which may be of assistance in applying and interpreting the Tribunal’s applicable law. Thus, they are not binding of their own accord on the Tribunal. They are, however, authoritative as evidence of international custom.
Barayagwiza v. Prosecutor, Case No ICTR 97-19-AR72, Decision, para. 40 (Nov. 3, 1999).Some commentators and judges have argued that the Appeals Chambers should order a new trial after a Trial Chamber’s acquittal is impugned. In particular, this has become a recurring point of disagreement between Judge Fausto Pocar (Italy, at left) and his colleagues on the ICTY/R Appeals Chamber. In several cases, Judge Pocar strongly dissented in favour of remitting the case back to the Trial Chamber for further determination. See, e.g., Rutaganda v. Prosecutor, Case No ICTR-96-3-A, Judgment (26 May 2003) and Semanza v. Prosecutor, Case No ICTR-97-20-A, Judgment (20 May 2005).
In Galić, for example, Judge Pocar argued:
[T]he Appeals Chamber is bound to uphold an accused’s right of appeal enshrined in international law as reflected in Article 14 (5) of the [ICCPR]. Thus, * * * the Appeals Chamber’s intervention * * * to correct errors committed by a Trial Chamber must be interpreted so as to comply with the fundamental human rights principle that any conviction and/or sentence must be capable of review by a higher tribunal according to law. While Article 25(1) of our Statute affords the Prosecution the possibility of lodging an appeal that seeks an increase in sentence, this provision does not allow for an exception to the Appeals Chamber’s obligation to guarantee the fundamental right of appeal under Article 14 (5) of the ICCPR. As stated by the Human Rights Committee of the ICCPR, although the applicable law in a jurisdiction may allow for a person to be convicted and sentenced by the higher court in that jurisdiction, “this
circumstance alone cannot impair the defendant’s right to review of his conviction and sentence by a higher court.
Prosecutor v. Galić, Case No IT-98-29-A, Partially Dissenting Opinion of Judge Pocar, para. 2 (Nov. 30, 2006).
In other developments, the trial of Vojislav Šešelj (right) re-commenced before the ICTY this month. The trial has been marred by
disruptions from the defendant, including a hunger strike; concerns about witness intimidation; and a contempt conviction against Šešelj. In the past, Šešelj has indicated he does not intend to call any witnesses on his behalf.The ICTR acquitted Father Hormisdas Nsengimana of genocide. Nsengimana had been accused of being involved in an attack on Tutsis and supervising roadblocks installed to identify and eliminate Tutsis.
On grounds of alibi, the ICTR also reversed the
conviction of Protais Zigiranyirazo, who had been convicted of genocide and extermination pursuant to a joint criminal enterprise. (He has also been implicated in the murder of Dian Fossey in light of his financial interests in gorilla tourism, which Fossey opposed). Both defendants were ordered released.Roundup of Even More ICL News
The International Criminal Law Interest Group of the American Society of International Law -- for which IntLawGrrl Kelly Askin serves as C0-Chair, and yours truly as Secretary -- recently circulated its newsletter addressing other developments this year. The newsletter is available here.
