Archive for category ICJ
ICC Suspect Saleh Mohammed Jerbo reportedly killed in Darfur: Deputy general commander of the JEM-Bashar faction Saleh Mohammed Jerbo has been killed in a North Darfur battle last week according to the faction. The ICC indicted Jerbo last year for his alleged involvement in the killing of 12 peacekeepers during a raid by 1,000 rebels on a UNAMID compound in Sudan in 2007. Jerbo’s trial was set for 5 May 2014.
Former Commander Chhouk Rin takes the stand at Khmer Rouge tribunal: Former Khmer Rouge Commander Chhouk Rin, 60, took the stand yesterday at the Khmer Rouge tribunal. Judges and prosecutors described him as a hostile witness who was insulting the court and “wast[ing] everyone’s time.” Rin – who is serving time in Prey Sar prison after being convicted of killing 13 Cambodians and 3 foreigners in the mid-nineties – initially refused to cooperate or answer questions on the grounds that his imprisonment had diminished his health to such a degree that he could not undergo questioning. Rin eventually cooperated, and pointed to Nuon Chea as the mastermind behind the Khmer Rouge’s actions.
Thai legal team optimistic that falsified border map will lead to ICJ win: The Thai legal team says that Cambodia’s use of a falsified border map before the International Court of Justice is key evidence that may lead to a verdict in favor of Thailand. Head of the Thai legal team Virachai Plasai said the team first noticed Cambodia’s falsified map in 2011 and have since corrected the map in Thailand’s first written defense. However, he states that Cambodia has used the same map with “colorful adjustments” as recently as March 2012. The dispute between Cambodia and Thailand about the area surrounding the 11th century Preah Vihear Temple in the Dangrek Mountains is a century old, with the latest iteration of the dispute arising in 2008.
Guatemala suspends referendum with Belize over territorial dispute: Guatemala officially suspended the referendum regarding taking their enduring territorial dispute with Belize to the International Court of Justice. Guatemala seeks to recover 4,737 square miles of territory from present-day Belize. The area equals approximately half of Belize’s territory. Foreign minister Fernando Carerra said that “conditions do not exist” for holding the referendum asking the Central American countries’ citizens to approve the submission of the dispute to the ICJ. Carerra cited the Belizean government’s failure to accept Guatemala’s proposal for moving the referendum date forward and modifying Belizean election laws requiring 60% turnout and 51% majority to implement referendum terms.
US and Uganda suspend hunt for Joseph Kony: On 3 April 2013, United States and Ugandan officials announced the temporary suspension of their joint hunt for suspected war criminal Joseph Kony, due to violence and political upheaval in the Central African Republic. The recent violence, which forced CAR President Francois Bozize to flee the country where Kony is believed to be hiding. Although the CAR rebel groups are not affiliated with Kony or his Lord’s Resistance Army, they have refused to cooeprate with the Ugandan military in their quest to bring justice to the man believed to be responsible for the abduction and employment of child soldiers. The United States has 40 troops in CAR to train and advise the primarily Ugandan forces looking for Kony, and neither country is planning on withdrawing them unless the political situation is unresolvable.
The suspension of the search overshadows yesterday’s announcement by US Secretary of State John Kerry of “up to $5 million for information that leads to the arrest, transfer, and conviction of the top three leaders of the LRA: Joseph Kony, Okot Odhiambo, and Dominic Ongwen. All three are charged with war crimes and crimes against humanity.” (For more information, click here.)
Kenya: Victims call for accelerated proceedings against President-elect Kenyatta due to witness intimidation: On 4 April 2013, counsel for the victims of the post-election violence of 2007 Fergal Gaynor asked the Trial Chamber of the International Criminal Court (ICC) to accelerate President-elect Uhuru Kenyatta’s trial, rather than referring the case to the Pre-Trial Chamber. Gaynor characterized defense counsel’s seeking of confirmation of charges as a frivolous delay tactic. In the companion case against Ruto Sang, counselor for the victims Wilfred Nderitu announced his opposition Kenyatta standing trial in absentia.
US and European ambassadors to attend Kenyatta inauguration: On 4 April 2013, it was announced that, despite warnings of consequences to Kenya for allowing and assisting the alleged perpetrator of crimes against humanity to take office, western countries are planning to send diplomats to the inaugeration of Uhuru Kenyatta. Despite its apparent departure from international norms, Kenya remains of high strategic value to the west, which fears that alienating the country would push it closer to countries such as India and China.
President of Malawi announces ICJ case in dispute with Tanzania: On 3 April 2013, Malawian President Joyce Banda announced that Malawi will file suit in the International Court of Justice (ICJ) alleging that the African Forum of Former Heads of States unfairly favored Tanzania by sharing Malawian documents with Tanzania prior to submission. The two countries are disputing whether oil and gas deposits under Lake Malawi are Malawian or Tanzanian territory.
President of Egypt travels to Sudan in efforts to strengthen relations: On 4 April 2013, President of Egypt Mohammed Morsi began a two-day visit to Sudan to meet with the country’s president Omar al Bashir, who has been indicted by the International Criminal Court (ICC) on charges of genocide. Despite an arrest warrant that has stood since 2009, al Bashir has traveled throughout the region, including Egypt. The two countries, which currently claim most of the Nile River, are strategic allies against upstream countries who seek to renegotiate territory agreements.
ICTY: Former VRS Commander Krstić charged with contempt of court: On 26 March 2013, the International Criminal Tribunal for the former Yugoslavia (ICTY) charged former Drina Corps of the Bosnian Serb Army (VRS) Commander Radislav Krstić with contempt for refusing to comply with a subpoena ordering him to testify in the case of Radovan Karadžić. Kristić will appear before the tribunal on 4 April 2013. Krstić is currently serving a 35-year sentence for aiding and abetting genocide.
Supreme Court of Kenya to review election results: On 26 March 2013, it was announced that the Kenyan Supreme Court will issue its final judgment on Ralia Odinga’s challenge requesting a second round of voting on Saturday, 30 March 2013. Odinga’s challenge is based on accusations of voter fraud, however, the court denied Odinga’s recent request for a forensic audit of the electronic voting systems (which failed during voting), along with his request to submit new evidence, reasoning that it would cause an undue delay.
Syria: UN weapons expert to lead chemical weapons inquiry: On 27 March 2013, UN Secretary-General Ban Ki-Moon announced that Swedish weapons expert Ake Sellstrom will lead the UN investigation into allegaitons of chemical weapons use in Syria. This comes as a response to a request by Syrian Ambassador to the United Nations Bashar Ja’afari to investigate allegations of rebel forces using chemical weapons in Aleppo two weeks ago. Although Ban is aware of allegations by rebel forces that government forces have used chemical weapons, the investigation will be limited to those made by the Assad regime.
Georgia and ICC delegation discussing cooperative measures: On 27 March 2013, the Foreign Ministry of Georgia announced that Deputy Foreign Minister David Jalagania was meeting with a delegation from the ICC to discuss future cooperation measures. The ICC delegation is also meeting with the Ministries of Foreign Affairs, General Prosecutor’s Office, and Justice.
ICJ to hear arguments on Cambodia-Thailand dispute: On 28 March 2013, granting Cambodia’s request for a review of its 1962 decision, the International Court of Justice (ICJ) stated that it will hear arguments on 15-19 April 2013 concerning whether Cambodia or Thailand rightfully owns a 4.6 square kilometer area of land next to the Preah Vihear temple. Thai Ambassador to The Netherlands Teerachai Palasai insists that the ICJ could not review a decision it never made, since the ICJ had previously declined to hear this dispute when petitioned by Cambodia in 1959.
25 February 2013 – NEWS ABOUT THE COURTS
HRC begins 22nd session in Geneva: On 25 February 2013, UN High Commissioner for Human Rights, Navi Pillay, stressed the importance of strengthening international processes that monitor and prevent human rights violations during her opening address at the 22nd session of the Human Rights Council in Geneva. High Commissioner Pillay underlined the importance of the ICC but expressed concern about the limited ability of the court attain jurisdiction, primarily in the case of Syria and the possible human rights violations that may have occurred since the uprising against President Bashar al-Assad began in March 2011.
North Korea and Mali expected to be issues at HRC summit: On 24 February 2013, it was announced that among the resolutions to be adopted during the final two days of the 22nd session of the UN Human Rights Council there is one that will likely pave the way for a commission of inquiry into rights in secretive North Korea. The resolution, to be tabled by Japan and the European Union, comes after UN human rights chief Navi Pillay last month decried the “deplorable” situation in North Korea. In addition, it is expected that the UNHCR will also discuss the possibility of separate resolutions for dealing with the conflict in Mali and to review the current situation in Sri Lanka.
Anticipated Sri Lanka vote at HRC: On 24 February 2013, CPI(M) general secretary Prakash Karat said on Saturday that India should demand an independent, high-level, credible inquiry into the atrocities and human rights violations that took place in the last phase of the war in Sri Lanka. This issue will likely be raised by a four-member parliamentary delegation of Sri Lanka’s main Tamil party, Tamil National Alliance (TNA) that will leave for Geneva to participate in the 22nd session of the United Nations Human Rights Council. (For additional information on this topic, please click here)
Seselj conviction protests: On 22 February 2013, the Serb Radical Party (SRS) organized a protest drive on Friday in Novi Sad, marking ten years since their leader Vojislav Šešelj has been detained at the Hague Tribunal. Vojislav Šešelj voluntarily surrendered to the court on February 24, 2003, and has been incarcerated there since. His trial on war crimes charges is still ongoing.
Ongoing Mladic defense case: On 20 February 2013, retired lieutenant colonel in the Norwegian army Per Brennskag testified at the trial of the former commander of the VRS Main Staff Ratko Mladic. In 1995, Brennskag was a UN military observer in Sarajevo. During his mission in Sarajevo, the witness saw four to six modified air bombs being launched from the VRS positions in Ilidza. The modified air bombs, referred to as “sows”, are inaccurate and illegal. For the defense it remains controversial who launched them and with what degree of accuracy the bombs maintained.
Serbia pledges funds to ICTY defendants: On 19 February 2013, According to the Serbian National Council for Cooperation with the International Criminal Tribunal for the Former Yugoslavia, ICTY, from March onwards, state financial aid will be given not just to those who are standing trial, but also to those who have been convicted of war crimes. The policy change comes after Serbian justice minister Nikola Selakovic visited the Hague Tribunal earlier this year. Selakovic announced that the state would have a different attitude towards ICTY defendants, promising more benefits to those imprisoned, including financial aid and healthcare cover.
ICTY Appeals Chamber affirms life sentence of Milan Lukić: On 4 December 2012, the Appeals Chamber of the ICTY dismissed all eight grounds of appeal of Serbian paramilitary leader Milan Lukić and confirmed the life sentence handed to him by the Trial Chamber. Milan Lukić’s grounds of appeal had focused on arguments that Lukić had an alibi and witnesses had testified falsely. The Appeals Chamber reduced the sentence of co-accused, Sredoje Lukić, from 30 years to 27 years; with dissenting opinions from Judge Pocar and Judge Liu. Milan Lukić and Sredoje Lukić were convicted of crimes against humanity and violations of the law of war stemming from crimes committed from 1992 to 1993 in the town of Višegrad. (For additional information on this topic, please click here).
Government of Ivory Coast unsure of response to ICC indictment: On Tuesday 4 December 2012, the Ivory Coast’s new prime minister Daniel Kablan Duncan stated at a conference in Paris that the Government of the Ivory Coast has not yet made a decision on how to respond to the recent ICC indictment of former first lady, Simone Gbagbo. Noting that the country is still recovering from divisions caused by the 2011 elections dispute between former President Laurent Gbagbo and current President Alassane Ouattara, Duncan said “we have to look at all the consequences.”
Tribunal established to try Habre could start proceedings later this month: Human Rights experts have said that the special tribunal established in Senegal to try former Chadian leader Hissene Habre should be operational very soon, and could start proceedings as early as late December. After more than 21 years of exile in Senegal, the recent ICJ decision in the case of Belgium v. Senegal pushed the creation of the special tribunal forward, when the Court decided that Senegal must either try or extradite Habre. Habre is accused of crimes committed during his leadership from 1982 to 1990 in which over 40,000 political murders were carried out.
Witness in Mladic trial testifies to position of Dobrinja attacks: In the ICTY trial against Bosnian Serb army chief, Ratko Mladic, the Trial Chamber received the written deposition of Refik Sokolar, an ex Sarajevo policeman who investigated the attacks in the Sarajevo suburb of Dobrinja. Sokolar’s evidence included his investigation into over 200 artillery and sniper attacks on Dobrinja, and concluded that attacks came from sites controlled by the Bosnian Serb army, including “the Theological School, the army barracks in Nedzarici, and in the Airport settlement.” Sokolar also investigated the direction and origin of grenade attacks by speaking with speaking with victims at the Dobrinja infirmary. Sokolar’s testimony goes to the charges against the accused of terrorizing the population of Sarajevo through artillery and sniper attacks.
Kenya’s accused join their presidential campaigns: On 2 December 2012, Deputy Prime Minister Uhuru Kenyatta and former cabinet minister William Ruto, both contending in next year’s presidential election, and both under indictment by the ICC, announced they will run on the same ticket. Kenyatta will be the presidential candidate, and Ruto will run for vice president. Their indictments accuse them of taking part in the orchestration the violence that followed Kenya’s previous presidential election. Currently, their trial is set to begin a month after next year’s election, prompting concerns about whether or not the two will be present at trial. Both claim that they plan to fully cooperate with the court.
Calls for investigation of del Ponte: On 2 December 2012, Albania and Kosovo called for an investigation of Carla del Ponte, a former ICC prosecutor, for her conduct during the investigations and trials of Ramush Haradinaj. They claim the way that she handled the case against the former Kosovar prime minister was “tendentious and illegal.” With his acquittal last week, Haradinaj has now been tried twice without conviction for war crimes against Serbians, Roma, and Albanians.
Second Seselj conviction upheld: Judges in the International Criminal Tribunal for the former Yugoslavia upheld the second of three contempt convictions of Serbian nationalist political leader Vojislav Seselj for which he was originally convicted last year. The initial conviction was related to the publishing of a book by Seselj, which revealed the names of 10 witnesses the ICTY was attempting to keep secret. The 18-month sentence for this conviction will be added to the 15-month conviction on similar grounds from 2009 and the 2-year sentence he was given in June for failing to keep confidential information off of his website in contradiction of judicial orders. The June conviction is still under appeal. The trial for which Seselj was first brought to the Hague in 2003, involving 9 counts of war crimes and crimes against humanity, finished in March of this year. Seselj still awaits his final judgment on these charges.
Haradinaj acquittal protested in Belgrade: On 1 December 2012, a group calling itself the Association of Kidnapped and Killed in Kosovo staged a protest in Belgrade against the acquittal of Ramush Haradinaj. The group, which represents Serbian victims of violence in Kosovo, stated that Haradinaj being allowed to come home a free man is a “slap in the face” to victims who have been seeking justice without reward for 14 years. The group began its protest at 12:05 CET instead of 12:00 to symbolically call attention to the Kosovar government’s overdue response to their plight. The ICTY did recognize that the crimes alleged in Haradinaj’s case had been committed, but held he and the other two accused were not responsible for them (for more information on this topic, click here).
ICC to consider new Palestinian status: Last week, prosecutors at the ICC said the court would “consider the legal implications” of Thursday’s UN General Assembly resolution to upgrade Palestine from an observer entity to an observer state within the deliberative body. The significance of the ICC’s announcement relates to the court’s decision in April not to grant the Palestinian request to investigate possible Israeli war crimes during the 2008 – 2009 violence in the Gaza Strip. At that time, the court stated that only internationally recognized states could accept ICC jurisdiction, and since Israel has never accepted jurisdiction, the court could not investigate (for more on this topic, click here).
Ngirabatware verdict on 20 December: On 30 November 2012, the International Criminal Tribunal for Rwanda said it will announce the final judgment in the case of Former Rwandan Planning Minister Augustin Ngirabatware on 20 December 2012. Ngirabatware faces several charges of crimes against humanity, including rape and genocide, allegedly committed during his country’s 1994 violence. The trial lasted from September 2009 to July of this year, and it is the last case to be decided in the first instance by the ICTR. Any appeals will be before the Mechanism for International Criminal Tribunals. The accused believes his alibies, which mostly involve claims that he was not present in his home province at the times the alleged crimes took place there, raise reasonable doubts that should bar conviction.
Beginning and ending ICJ disputes in Latin America: On the wake of a 19 November International Court of Justice ruling in a maritime border dispute between Colombia and Nicaragua, Belize looks ahead to a possible ICJ arbitration. The recent ruling increased Nicaragua’s maritime territory by 20,000 square miles in a potentially oil rich area, though Colombia retains San Andres island, the subject of the original dispute. Colombia is now withdrawing its membership from the ICJ and will attempt to engage Nicaragua in diplomatic talks about the issue. The voters in Belize and Guatemala will cast their ballots late next year simultaneously to decide whether their countries’ border dispute should be taken to the ICJ as well.
Posted by syhoekstra in Balkans, Crimes against Humanity, ECCC, Gender crimes, Genocide, Human Rights Treaties and Charters, Human Rights Violations, ICC, ICJ, ICT of Bangladesh, ICTY, immunity, Investigations, News about the Courts, Rome Statute, STL, Syria, Torture, UN General Assembly, Victims, War Crimes, Witnesses on November 5, 2012
STL rejects appeal of in absentia trial: Last week, the appeals chamber of the Special Tribunal for Lebanon affirmed the trial chamber’s ruling to try four suspects in absentia. The four men face accusations of assassinating former Lebanese Prime Minister Rafik Hariri. In February, the trial chamber decided to move forward with the case without the presence of the Hezbollah member suspects. The appeals chamber unanimously agreed, citing the fact that the indictment had been very well-publicized, and the suspects thus must know they are to appear in court. The trial is set to begin in March.
No new names or charges in amended STL indictment: Despite some early media speculation, the amended indictment for the prosecution in the Special Tribunal for Lebanon do not contain any new suspects or charges. The four men on trial will still be tried in absentia beginning on 25 March 2013 for the assassination of former Lebanese Prime Minister Rafik Hariri. Some victim names have been changed, as well as some minor details. The prosecution also sought to clarify the charges against the suspects.
Potential Syrian war crimes caught on video: On 7 November 2012, the Great Britain-based Syrian Observatory for Human Rights released a video of pro-regime forces in Syria appearing to kill and mutilate rebel prisoners. According to the Observatory, a watchdog group, the videos were provided by Syrian activists in response to last week’s broadcast of videos depicting rebel soldiers beating and executing Syrian government troops. The UN has warned that the killings in the more recent video appear to be war crimes, and the perpetrators should expect accountability.
New witness waiver from Ieng: Last week, former Khmer Rouge foreign minister Ieng Sary waived his right to be present for the questioning of 14 witnesses at his trial for crimes committed while his regime was in office. The 87-year-old Ieng has been in the hospital for over two months because of various health problems, including a serious heart condition. Less than a month ago, Ieng waived his right to be present for the questioning of 18 other witnesses, as his lawyers struggle to find ways to keep the trial moving. Doctors are scheduled to report to the court on Wednesday after an in-depth examination of Ieng’s health.
Witness testifies on Sarajevo shelling: Last week, at the trial of Ratko Mladic, a young man who was a 10-year-old boy during the shelling of Sarajevo recalled his experience of the attack. He explained that he and his friends and brothers were playing outside just before three were severely injured by an explosion, and one was killed. Mladic, the former Bosnian Serb army chief, is being tried on many charges, including terrorizing Sarajevo citizens with a campaign of shelling and sniper fire. The particular attack recalled by the witness allegedly resulted in six deaths and five serious injuries. The defense argues the attacks targeted, not citizens or children, but the nearby Bosnian army headquarters.
Tribunal urges UN to investigate Khomeini regime: Last week, the independent Iran Tribunal culminated it’s proceedings and ruled that the regime of Ayatollah Khomeini committed gross human rights abuses and crimes against humanity throughout the 1980’s. The tribunal further called for the UN to officially investigate these alleged crimes, which include torture, sexual violence, and unlawful executions and imprisonment. Most of these acts were committed against young prisoners, according to the ruling. The tribunal’s proceedings lasted five years and took place in Amnesty International facilities in England as well as the International Court of Justice’s Peace Palace in the Hague.
Azad indicted: Yesterday, the International Criminal Tribunal for Bangladesh indicted Abul Kalam Azad, the expelled Jamaat-y-Islami member, for eight counts of crimes against humanity. The trial will begin on 14 November. Azad is charged with acts of genocide, murder, and rape committed during Bangladesh’s 1971 war of independence.
Song presents annual report to UN: ICC president Judge Sang-Hyun Song presented his annual report on the court to the UN General Assembly on 1 November 2012. He detailed much of the court’s activity in the past year as well as a look at its overall accomplishments in its first ten years since the Rome Statute was enacted in 2002. He asserted the court was the center of a new paradigm of justice in which dozens of nations seek to bolster their own justice systems by ensuring a tribunal of last resort to prevent impunity for the gravest of crimes. He also emphasized the court’s need for member states to cooperate with the court’s orders if the goals of the international body are to be achieved.
Court/Tribunal: Special Tribunal for Lebanon
Decision Title: Decision on the Defense appeals against the Trial Chamber’s “Decision on the Defense Challenges to the jurisdiction and legality of the tribunal”
Chamber: Appeal Chamber
Case Name: Prosecutor v. Salim Jamil Ayyash, Mustafa Amine Badreddine, Hussein Hassan Oneissi, Assad Hassan Sabra
Date: 24 October 2012
Decision Background: The Defense teams for the four defendants at the Special Tribunal for Lebanon filed a motion with the Trial Chamber, challenging the legality of the Tribunal’s existence, and its ability to try the individuals for the February 14, 2005 bombing that killed the former Lebanese prime minister. Each defense team filed separately in the Trial Chamber and then to the Appeals Chamber, although the claims made by each were substantively the same.
The Defense contended that the establishment of the Tribunal violated international law, in that it violated the constitution of Lebanon, one of the parties affected by Resolution 1757, passed by the Security Council to create the Special Tribunal. They contended that the passage of the Resolution abused and went beyond the scope of the powers granted to the Security Council by the United Nations charter. Specifically, the Defense argued that the Resolution was invalid under international law, because it amounted to the enforcement of a treaty upon Lebanon, which the country did not ratify [an agreement between Lebanon and the United Nations to create an international tribunal had been drafted and signed by the parties, but had not been ratified by Lebanon]. Likewise, they contend that the Resolution abused Security Council authority because its jurisdiction – over the 2005 bombing incident—was too narrow and selective.
Furthermore, they contended that it was within the Tribunal’s provenance to review the legality of its creation by the Security Council as a jurisdictional matter, and to determine whether or not the Tribunal can actually exist in this situation. The Defense argued against the Security Council’s sovereignty as an international body, and stated that the Tribunal is therefore legally entitled to review Security Council decisions.
The Trial Chamber found that the Security Council properly created the Resolution and the Tribunal pursuant to its duties under the U.N. Charter. It did not find the scope of the Resolution or the Tribunal too narrow. Apart from the merits of the Defense’s case, the Trial Chamber also found that it did not have the power to review or rule on a Security Council resolution, or the legality of its own existence pursuant to that review.
The Defense appealed to the Appeals Chamber, claiming errors in law for the decisions reached by the Trial Chamber.
An oral hearing in the appeal was heard by the Chamber on October 1, 2012.
In addition to the question appealed from the Trial Chamber’s ruling, the Appeals Chamber had to make additional procedural rulings due to the nature of the Appeals at this early stage in the proceedings. Under the rules of the Tribunal, only preliminary motions on jurisdiction can be filed and appealed to the Appeals Chamber pre-trial. Otherwise, only certified appeals can be before the Appeals Chamber pre-trial. Since the four Defense parties were filing separately, an issue evolved as to whether all the Defense appeals met the procedural requirements of the Court.
Thus, the issues on appeal were as follows: Whether the appeals from the Defendants were properly before the Appeals Chamber; whether Security Council Resolution 1757 was an appropriate and legitimate legal basis for the Tribunal; and whether the Tribunal was competent to review the Security Council resolution establishing its own creation.
Decision Review: The Court began by laying out the standard of review in any appealed matter. Under Article 26 of the Statute and Rule 176 of the Rules of Procedure and Evidence, an appeal is appropriate in cases challenging a question of law reached in error by the lower court, which would invalidate the decision. An appeal is also appropriate on errors of fact that have created miscarriages of justice. Furthermore, citing precedent out of the International Tribunal for the former Yugoslavia, the Court stated that such errors must have had a material affect on the outcome of the trial. Therefore, an appeal on an arguable error that had no bearing on the ultimate outcome of or decision in the trial, is not reviewable by the Appeals Chamber.
On the issue of whether the Defendants’ appeals were properly before the Chamber, the Court ruled that only two of the Defendants’ appeals met the requirements, rejecting the appeal from defendant Ayyash. In their briefs, all Defendants argued that their challenges to the Tribunal’s existence constituted preliminary motions challenging the jurisdiction of the Court to hear the case. As such, the Defendants argued that they come under Rule 90(A)(i) of the Rules, where appeal on such issues of jurisdiction lie as a matter of right.
The Court, however, rejected the Defenses’ characterization of their challenge. Under Rule 90, the Court found that there are several types of preliminary motions that can be brought and appealed pre-trial, among them a challenge to jurisdiction. The Court found, however, that the definition of “jurisdiction” for Rule 90 purposes is defined in Rule 90(E), which specifically lists the reasons a defendant can give for challenging the Court’s ability to hear a certain case. The legality of the Tribunal’s existence is not one of the listed reasons. Therefore, the Court found, challenges to legality are not jurisdictional challenges, and therefore the Defendants’ motions do not qualify as preliminary motions, and thus do not qualify for automatic appeal under Rule 90(B). The Court specifically rejected the Defense’s arguments that the notion of a Tribunal’s legality is tied to jurisdictional questions for Rule 90 purposes, nor is the appeal operative through a concept of inherent jurisdiction. The Court recognized that the Appeals Chamber can, in rare circumstances, can hear appeals outside of the Rules, when a situation arises that was unforeseen by the Rules. The Court, however, found that challenges to jurisdiction were not such a situation.
Despite the appeals not meeting the Rule requirements, the Court found that the appeals from two of the defendants – Mr. Badreddine and Mr. Onessi – were properly before the Appeals Chamber as certified appeals. The Court found that both parties requested and received certification to appeal pursuant to rule 126(C) of the Rules. Under the rule, the Court noted that motions “other than preliminary motions” can be certified for appeal to the Chamber. Since the Court found the Defense motions were not preliminary motions, and did not meet the requirements for other types of preliminary motions, they qualified as “other.” The Court also found, however, that the defense team for Mr. Ayyash did not seek certification of the motion once the Court rendered its decision regarding the nature of their motion. As such, the Court found that his appeal was improperly before the Court, and would be dismissed. The Court noted that this decision should not unduly prejudice the defendant, as the substantive arguments in his appeal are essentially the same as those in the appeals by the other defendants properly before the Court, and any decision made therein will have like effects on Mr. Ayyash’s case.
Pursuant to 126(B) of the Rules, “other” motions can only be certified after a case has gone to the Trial Chamber. Under Rule 95, a matter is considered assigned to the Trial Chamber once the Pre-trial judge has transferred the case file to the Trial Chamber. The current case has not yet been assigned to the Trial Chamber; the Court found, however, that because the motions were initially filed as preliminary motions and were therefore qualified to be filed prior to assignment of the case to the Trial Chamber, once the Court determined that they did not qualify as preliminary motions, the Court acted properly in certifying them nonetheless as “other” motions.
The Court noted practical decisions of time and delay of trial in reaching this conclusion, noting that requiring the Defense to wait to re-file the motions after the case has gone to trial, would allow undue and unnecessary delay in the proceedings. As such, the Court found that the requirement of “assignment” is not absolute, and that exigent circumstances—such as time—can allow a Trial Chamber to dispose of an issue before the technical transfer of the case file.
The Court further found that the Trial Chamber did not err in finding favorably the legality of the Tribunal and the Resolution used to create it. The Trial Chamber found that the Resolution constitutes the sole legal basis for the Tribunal’s establishment, and that therefore considerations such as domestic Lebanese law did not play into a determination of the Tribunal’s legality. And under the Resolution, the Tribunal’s existence is fully legitimate as a measure taken by the Security Council pursuant to Chapter VII and its powers under Article 25 of the UN Charter.
The thrust of the Defense’s argument on this point was that the Tribunal is illegal under international law, because it attempts to put into force a treaty agreement not ratified by Lebanon. The basis for their argument was the fact that initially, the United Nations and the government of Lebanon had reached an agreement to establish an international tribunal for Lebanon. The agreement had been drafted and signed, but not ratified by Lebanon. The Defense argued that, in light of a failure to ratify and thus absence of binding force on Lebanon, Security Council used its resolution power to enforce upon Lebanon the terms of the unratified agreement. Specifically, the Resolution 1757 stated that in absence of ratification and creation of the Tribunal, the creation of the Tribunal – one of the provisions of the unratified agreement—would go into force on a given date by power of the Resolution.
The Court found that the Security Council’s decision to create the Tribunal without the explicit consent of Lebanon was entirely within its legitimate authority under the UN Charter. The Court drew a distinction between the unratified treaty as a whole agreement, and the individual provisions of that agreement. Specifically, it found that the specific provision’s – the establishment of the Tribunal – was given binding effect by its incorporation into a Security Council resolution properly created pursuant to the Security Council’s powers under Chapter VII of the Charter. The fact that a provision of the agreement was being enforced pursuant to a Resolution, was separate from and does not mean the unratified treaty as a whole and complete agreement, was being enforced against Lebanon. It is, according to the Court, the actual provision by way of the Security Council, and not the treaty itself, that has been made binding.
Furthermore, the Court found that the Security Council’s implementation of an agreement’s provisions through a binding resolution is neither unprecedented, nor outside of the Council’s authority under Chapter VII to impose binding legal consequences on party members of the UN. The Court specifically noted that Lebanon was a founding member of the UN, and both agreed to and is obliged to follow the powers granted to the Security Council under Article 25, and must adhere to its Chapter VII decisions. The Court also noted that the government of Lebanon has cooperated with the Tribunal, requested its creation, and has been fulfilling its obligations under the Tribunal’s Statute and the Resolution.
Finally, the Court found that the Trial Court did not err by finding that the Tribunal does not have the legal authority to rule on the legality of its existence and, by extension, the legality of a Security Council resolution. The Defense argued that the Security Council’s implementation of the Tribunal by Resolution was an abuse of its power, because the assassination in Lebanon of its prime minister did not constitute a threat to international peace and security. Thus, the Defense argued, the creation of the Tribunal was inappropriate and illegal, and that the proceedings against the Defendants should be dismissed.
The Court reviewed the mandate of the Security Council, which is a principal organization of the United Nations. Its primary responsibility is to ensure the maintenance of international peace and security, and it has the authority under Articles 39 and 41 of the UN Charter to determine when a situation constitutes a threat to international security and peace. The Security Council also has the power to make decisions regarding the appropriate measures the international community should take to address the situation. The Security Council does so by vote of its 15 members, which the Court found sufficient to ensure a “check” on the Security’s power and authority. All UN member states, as per the UN Charter, are bound by the decisions of the Security Council.
The Court found that for the Tribunal to make a determination as to the legality of the Resolution, would be asking the Tribunal to make a judicial review of a Security Council decision. To do so would ask the Tribunal to essentially decide upon the validity of the Security Council’s Chapter VII determination that a threat to international security existed, and to decide whether the Security Council acted with proper authority under the Charter in creating a specific remedy to the threat.
The Court found that the Tribunal is not competent to make a such judgments through judicial review and that in face, these decisions are not subject to judicial review.
The Court found that no authority grants it the power to review Security Council decisions. The Statute of the Tribunal does not grant it any power to make a binding order or a legally-binding declaration with respect to Security Council decisions. Likewise, the UN Charter does not speak to the possibility of judicial review of Security Council decisions and resolutions. Under the UN Charter, the Court found that only the other organs of the UN have the power to review Security Council decisions.
In support of its position, the Court specifically noted that since the Lebanon tribunal is an independent body created by the Security Council independent of the UN body, the Court reasoned that its powers regarding the UN organs would be much more limited than that of the ICJ, which has categorically stated that it does not possess the power of judicial review over Security Council decisions. As a judicial body not integrated with the larger UN, the Tribunal does not have any authority to supervise the operations of any organ of the UN.
Furthermore, the Court found that it would be practically impossible to review the Security Council’s decision regarding the existence of a threat to international security. The UN Charter does not provide any legal framework, elements, or definitions of “threat,” “peace,” or “security” by which the Council must conform its determinations. The findings made by the Security Council are necessarily subjective, and thus any review of whether the Council made the right decision, would be speculation by the Court.
Finally, the Court found that the Security Council is granted broad leeway under the UN Charter to determine the measures it will take to maintain or restore international security. The Court found that the creation of tribunals has been used on prior occasions, and is a legitimate use of the Security Council’s authority under the Charter. Because it is a political decision, the Court found that it is not practically possible to subject it to judicial legal review.
One judge, Judge Baragwanath, dissented from the majority on the issue of whether the Tribunal can review a Security Council decision to create the Tribunal.
To access the full Decision, click here.
AU and Senegal agree to form extraordinary chambers to try Habré: Following the ICJ’s decision in July 2012 which ordered Senegal to either prosecute or extradite former Chadian leader Hissène Habré, the Government of Senegal has signed an agreement with the African Union to create an extraordinary chambers in Senegal to try Habré. Discussions on the trial of Habré were held in Dakar from 20 – 24 July with Senegal agreeing to try Habré before a special tribunal at the end of the session. The Senegalese Justice Minister has committed to raising the 16 million USD necessary for the trial. Habré is to be tried for international crimes committed from 7 June 1982 to 1 December 1990, and while Habré was in power.
Conflicting reports on Saif Gaddafi Trial date emerge: After reports last week from the office of Libya’s Prosecutor General claimed that Saif Al-Islam Gaddafi would be tried in Libya in September, contradicting opinions on Gaddafi’s trial date are emerging from other sections of the Libya Government. The National Congress Speaker Mohammed Magarief has dismissed the reports that Gaddafi will be tried in September in the town of Zintan, where he is currently held, as “rumours and lies.” On Sunday, Deputy Prime Minister Mustafa Abushagur told the press that no such decision on Gaddafi’s trial date or location had been made. Libya’s moves to try Saif Al-Islam Gaddafi in Libya come before the ICC has ruled on Libya’s Admissibility challenge.
ICC Prosecution updates charging document against four Kenyans: The ICC Prosecution has submitted to the Trial Chamber updated charging documentS, the Document Containing Charges (DCC), for the two Kenyan cases. The updated DCC’s reflect the Pre-Trial Chamber’s decision on confirmation; removing charges and facts which were not confirmed by the Pre-Trial Chamber in the Confirmation Decision. The submission of the updated DCC also included arguments from both prosecution and defence on issues the parties could not agree on.
Paraguay may appeal Mercosur Bloc sanctions before the ICJ: The Mercosur trade bloc suspended Paraguay’s membership earlier this summer for impeaching and ousting its president after a controversial land eviction that killed 17 people in clashes between police and landless peasants. The trade bloc opposed the action, which they claimed violated democratic order. Paraguay first appealed the sanctions before the Mercosur Standing Review Tribunal, which found that the case did not meet the requirements for controversy and accordingly denied the appeal. “It is perfectly possible and feasible” that Paraguay will bring its case before the ICJ at this point, said sources from Paraguay’s foreign ministry. However, other foreign ministry sources are unsure that such a case could go forward, considering the suspension only extends until April 2013 when general elections will occur.
ICTY judge excludes testimony from former commando Dragan Vasiljkovic: The prosecution listed Vasiljkovic as a witness in the trial of Slobodan Milosevic’s security chief Jovica Stanisic and Franko Simatovic, a former police special units commander. On Tuesday, the Hague Court ruled that the Belgrade-born former Australian army commando was likely to refuse to answer any questions posed on the basis of self-incrimination and was therefore excluded. Vasiljkovic is wanted for questioning by Croatia on allegations of war crimes and is currently in Australia’s Parklea prison. “Despite the interest of the chamber in hearing [the witness’s] anticipated evidence, his testimony is not indispensable for delivery a judgment meeting all requirements of fairness,” stated the Court’s order.