This is Part II of an international criminal law roundup focused on the ad hoc international and hybrid tribunals. Part I was dedicated to developments at the ICC. Part III will survey some domestic proceedings involving international criminal law. This series is inspired by the recently concluded IHL Dialogs in Chautauqua, NY, which bring together international criminal law professionals from all the major justice institutions for rejuvenating discussions about the challenges of promoting international justice.
1. The Mechanism on International Criminal Tribunals
The Security Council established the Mechanism on International Criminal Tribunals (MICT) to manage issues that arise following the closure of the original two ad hoc criminal tribunals dedicated to prosecuting international crimes committed in the former Yugoslavia and Rwanda. Although meant to be a residual mechanism, the MICT seems busier than ever. The International Criminal Tribunal for the former Yugoslavia (ICTY) officially closed its doors on December 31, 2017, after prosecuting 161 individuals. It went out with a bang, with Trial Chambers rendering its judgments in the cases against long-time fugitives Ratko Mladić and Radovan Karadžić. Appeal proceedings involving both defendants are now before the MICT. Both men were convicted of genocide for the Srebrenica massacre, among other crimes; on appeal, prosecutors are seeking genocide convictions in other municipalities.
Also of note in the last year was the issuance of an appeals judgment in the case involving Stojić Prlic et al., a group of Bosnian Croats found responsible for being members of a joint criminal enterprise to persecute Bosnian Muslims in Western Herzegovina. In a dramatic move, one of the accused killed himself upon the announcement of the appeals verdict in November 2017 by consuming potassium cyanide in the courtroom. This incident was reminiscent of Hermann Göring taking his own life on the eve of his execution, with the help—perhaps unwittingly—of his American guard whose German girlfriend likely used him to smuggle in a capsule of cyanide. Previously, two additional ICTY defendants had hanged themselves in their cells. The former Chief Prosecutor of the International Criminal Tribunal for Rwanda (ICTR), respected Gambian jurist Hassan Jallow, was asked to conduct an investigation into how this all transpired. He concluded that the suicide could not likely have been prevented since prisoners are not subjected to body cavity searches before they are brought into the courtroom in keeping with the Nelson Mandela Standard Minimum Rules for the Treatment of Prisoners. The Dutch also initiated a criminal investigation.
An Appeals Chamber also reversed an acquittal of Vojislav Šešelj and found him responsible for the deportation and persecution of non-Serbs from Vojvodina in Northern Serbia, including through acts of incitement. The Appeals Chamber did not reverse acquittals for inciting other crimes in Bosnia and Croatia during the conflict. Šešelj was sentenced to 10 years’ imprisonment and released for time served. The MICT is also conducting a retrial (the first in the ICTY’s history) of Jovica Stanišić & Franko Simatović, who had been found not guilty by a Trial Chamber. Rather than reverse this verdict, the Appeals Chamber ordered a retrial, which has been taking place before the MICT since June 2017. The Prosecution phase concludes next month.
In a side development, the MICT lost Turkish Judge Aydin Sedaf Akay, who was arrested in his home state in 2016 after the July coup attempt. Judge Akay was charged with being a member of a “terrorist organization” and released in June 2017 pending his appeal. In principle, MICT judges are entitled to privileges and immunities that are equivalent to those enjoyed by diplomatic envoys, per the MICT Statute set forth in Security Council Resolution 1966 (2010). In a controversial move, which drew strong criticism from the MICT’s President Theodor Meron, the U.N. Secretary General did not reappoint Judge Akay to the MICT in June 2018 when his term expired, although all the other willing judges were extended. MICT judges generally work remotely and are paid only when actively engaged in an adjudication.
2. The Extraordinary Chambers in the Courts of Cambodia
Disagreements between the international and national personnel continue to plague the Extraordinary Chambers in the Courts of Cambodia (ECCC). In short, the Cambodian Co-Investigating Judges and Co-Prosecutors have consistently argued that the ECCC should confine itself to only two trials:
(1) Kaing Guek Eav (a.k.a. Duch) who was head of the S-21 prison (Case 001) and
(2) Senior members of the Khmer Rouge leadership (Case 002), two of whom remain in the dock after Ieng Thirith was declared unfit to stand trial (and later passed away) and her husband, Ieng Sary, died during trial.
The national personnel have consistently opposed the opening of additional cases on the grounds that the jurisdiction of the ECCC is limited to the Khmer Rouge’s senior leadership and “those most responsible” for the commission of international crimes. By contrast, international personnel have sought to indict additional Khmer Rouge leaders one layer down the chain of command on the theory that they still fall within the ECCC’s personal jurisdiction.
As a result, potential third and fourth cases, involving four other accused, have stalled. Case 003 involves a single defendant, regional commander Meas Muth; Case 004 involves three defendants: Ao An, Im Chaem, and Yim Tith. The ECCC’s typical pattern broke down a bit when it came to Im Cheam, a Khmer Rouge district leader, whom both Co-Investigating Judges concluded was not within the Khmer Rouge’s senior leadership or most responsible; the international Co-Prosecutor took a different position and argued that she should be prosecuted. Given the complex super-majority rules of the ECCC, the Co-Investigating Judges’ determination prevailed. When it comes to Ao An, the Co-Investigating Judges disagreed with each other. One has issued a Closing Order (akin to an indictment) charging him; the national Co-Investigating Judge has issued an order declining jurisdiction. Under the rules, it is not clear what happens when there are two competing orders from the Co-Investigating Judges.
In terms of ongoing proceedings in Case 002, the trial of the Khmer Rouge leadership was further split into phases. In Case 002/01, the ECCC in 2014 convicted Khieu Samphan and Nuon Chea for crimes against humanity and sentenced them to life in prison. Case 002/02 concluded in June 2017 and involves a broader set of charges, including genocide (against the Cham Muslims and individuals of Vietnamese descent) and various forms of sexual violence and forced marriage. The verdict and judgment are expected in November 2018.
In other news, on August 17, 2018, the ECCC dismissed 1,400 applications from victims in Case 004/2, including some Cambodian-American victims represented by the Center for Justice and Accountability. This decision is subject to appeal.
3. The Residual Special Court for Sierra Leone
The Special Court for Sierra Leone (SCSL) technically closed its doors in 2013 and became a Peace Museum. However, it has its own residual mechanism—the Residual Special Court for Sierra Leone (RSCSL)—which remains in operation with a skeletal staff to handle issues that continue to arise. The RSCSL, which unlike the MICT has no active judicial mandate, is dealing primarily with issues such as petitions for early release, appointments of new counsel, and the like. The international community had launched an effort to fold the RSCSL into the MICT and relocate it to Arusha, Tanzania, but in the end it was decided to retain the RSCSL’s separate legal personality in light of its unique mandate and expertise. The RSCSL operates according to a roster mechanism, so staff are paid only when they are actively dealing with residual issues that arise. Nonetheless, the challenges of operating with only voluntary funding continue.
The issue of early release has proved to be somewhat controversial in ICL since the international tribunals were not specifically empowered by their constitutive statutes to grant any form of parole (although those instruments do mention pardons and commutation). The judges have determined that they have the inherent authority to order early release upon application by a prisoner who has completed 2/3 of their time. The remaining sentence is then served in a designated location with agreed-to conditions and active supervision. The relevant OTP almost always opposes such motions on the grounds that early release orders are ultra vires and, in any case, the crimes in question should not be subject to early release.
The President of the RSCSL is responsible for ensuring that the prison conditions of SCSL defendants meet international standards. Charles Taylor, the former President of Liberia and the most high profile of the SCSL’s defendants, has taken advantage of the RSCSL’s continuing jurisdiction over his incarceration. Taylor was prosecuted by the SCSL but within the ICC premises and is serving a 50-year sentence in the United Kingdom thanks to a special parliamentary enactment. He was never prosecuted for his role in the ruinous Liberian civil war; instead, the SCSL tried him for his support for the Revolutionary United Front in neighboring Sierra Leone. The case is significant because it proceeded without the consent of Liberia, Taylor’s nationality state. Liberia’s President Ellen Johnson-Sirleaf eventually blessed the SCSL process in 2006 when she sought Taylor’s extradition from Nigeria, where he was enjoying safe haven, so that he could be handed over to the SCSL. Nigeria finally turned him over, but only in the face of pressure from the United States, including from President George W. Bush, who refused to meet with President Olusegun Obasanjo until he had done so.
Taylor unsuccessfully petitioned the RSCSL to be transferred to Rwanda to serve out his sentence. He recently managed to make a phone call from his cell that was broadcast to large crowds in Liberia in the run up to the 2017 elections, which saw footballer Charles Weah and Taylor’s third ex-wife elected. Taylor has been held in solitary confinement in the U.K. He has claimed this was punishment for the phone call; the authorities have argued it was for his own protection and because of health concerns. Taylor has also petitioned the RSCSL to be moved to Rwanda so he would be closer to his family, a motion that was denied.
Judges in the Prosecutor v. Ayyash et al. case, which concerns the 2005 assassination of former Lebanese Prime Minister Rafik Hariri, are hearing closing arguments over the next couple of weeks. The case is proceeding with all defendants in absentia—a contingency that is allowed under the Tribunal’s statute (and in some civil law systems for that matter), but not without controversy. Counsel for only one defendant, Hussein Hassan Oneissi, presented a defense. Oneissi’s counsel also unsuccessfully sought to disqualify the judges this past summer. Last summer, a number of victims were entitled to present evidence of the harm they suffered individually and collectively of the terrorist act.
Part III of this post will address some ICL developments in domestic courts as exercises in complementarity.