Tagged: Int’l and Comparative Criminal Law

July 17, The Day of International Criminal Justice, Commemorates the Adoption of the Rome Statute

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

July 17 is designated as the Day of International Criminal Justice because on July 17, 1998, the Rome Statute, the founding treaty of the International Criminal Court, was adopted at a diplomatic conference in Rome.

In a press release on July 10, 2014, the ICC stated that the State Parties to the Rome Statute “decided to commemorate [July 17 as a] unique date, recognising the efforts of the international community to strengthen the emerging system of international criminal justice and to put an end to impunity for the perpetrators of the most serious crimes of international concern, namely genocide, war crimes, crimes against humanity, and the crime of aggression.”

The Rome Statute entered into force on July 1, 2002, upon ratification of 60 countries. At this time, some 120 countries have become parties to the Statute. The Court currently has before it eight situations (all involving countries on the African continent), and the ICC Prosecutor has brought 21 cases relating to those situations. The Prosecutor is conducting preliminary investigations relating to matters in several other countries, including Ukraine.

The ICC Prosecutor has succeeded in convicting two defendants relating to the Situation in the Democratic Republic of the Congo. One of these convictions (against Thomas Lubanga Dyilo) is still on appeal. As noted in a previous post, the other conviction (against Germain Katanga) became final when appeals were terminated on June 25, 2014.

Special Tribunal for Lebanon Confronts a Challenge to Its Legitimacy

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School

On Thursday, May 29, 2014, the Special Tribunal for Lebanon (STL) held a hearing on charges that it had issued on April 24, 2014, against two Lebanese journalists and two media organizations for contempt and obstruction of justice. The charges alleged that the journalists contravened the Tribunal’s order by publishing the names of witnesses who might appear for the Prosecution in the major criminal case before it. As reported earlier this year, the STL has indicted five members of Hezbollah for responsibility in connection with a February 14, 2005 bomb attack that killed Lebanese Prime Minister Rafiq Hariri and about twenty other victims.

According to the Daily Star of Lebanon, Ibrahim al-Amin, editor-in-chief of Al-Akhbar, one of the journalists charged with contempt, appeared at the May 29 hearing via video-link from a remote room from which he walked out after vehemently denouncing the contempt proceeding as politically biased and illegitimate.

In his prepared statement to the Tribunal, Amin, referring to the fact that the STL was set up by the U.N. Security Council in cooperation with the Lebanese Government, said, “I do not accept the legitimacy of this court which was invented by the Security Council, which has never guaranteed global security.” He added that “[w]e all know that local, regional and international powers which stand behind the creation of the tribunal are the same that instigate enduring wars in my country, against my people, and against its heroic resistance that is standing up to American, European and Israeli terrorism.”

The contempt proceeding has added to the troubling factional political controversies confronted by the STL. The outcome will have significant implications for the effectiveness and credibility of an international criminal tribunal – especially one that seeks to pursue a mandate issued by the Security Council.

Freedom of Press v. Obstruction of Justice: The Special Tribunal for Lebanon Takes a Controversial Stand

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School

On April 24, 2014, the Special Tribunal for Lebanon (STL), located in The Hague, charged two Lebanese journalists and two media organizations with contempt and obstruction of justice for allegedly publishing the names of witnesses who might appear for the prosecution in the major criminal case before the STL. The basis for the contempt charges is that the publications at issue may cause the witnesses to fear to testify or undermine the Tribunal’s ability to protect them. The STL has issued a summons to the two journalists to appear before the court on May 13, 2014.

In December 2005, the Government of Lebanon issued a request to the United Nations Security Council for creation of a tribunal to prosecute those responsible for the February 14, 2005 bomb attack that killed Lebanese Prime Minister Rafiq Hariri and 22 others. In response to this request and pursuant to its authority under Chapter VII of the U.N. Charter, the Security Council issued Resolutions 1664 (in 2006) and 1757 (in 2007) to establish a tribunal of an international character to prosecute those responsible for the February 2005 attack. The Security Council, through Article 28 (1) of Resolution 1757, required the judges of the STL to adopt Rules of Procedure and Evidence that would include provision for the protection of witnesses. Rule 60 bis of the STL’s Rules of Procedure and Evidence provides for charges of contempt and obstruction of justice against

any person who … discloses information relating to proceedings in knowing violation of an order of a Judge or Chamber.

Trial against the individuals accused of the bombing commenced in absentia in January of this year pursuant to Article 22 of Security Council Resolution 1757 that authorizes the STL to proceed with trial in absentia when circumstances warrant.

The publications at issue in the contempt proceedings confront the STL with serious factional and political complications in the Middle East. A post by the Guardian asserts that the defendants in the case are all members of Hezbollah but also states that Hezbollah has vehemently denied carrying out the attack. A news report by the Daily Star of Lebanon suggests that the publications were made at least in part by persons or media organizations sympathetic to political goals of the defendants.

The STL’s decision on the contempt issue has drawn prompt and strong criticism within Lebanon, including from officials of media organizations and from some members of Parliament. Among the issues raised by the critics is that the STL’s order is inconsistent with Lebanon’s law on freedom of the press. Note that unlike the international criminal law tribunals for the former Yugoslavia and for Rwanda, the STL is a “hybrid court” in that it applies a combination of Lebanese law and international criminal law and is staffed by Lebanese and international participants.

A commentator Karlijn Van der Voort who operates a blog on the STL supports the STL’s decision. Van der Voort, after reviewing analogous matters that have come before other international criminal tribunals, asserted that “there is consistent jurisprudence that the publishing of names of alleged witnesses is subject to contempt of court proceedings” and that in the STL matter “the publication of names of witnesses is one step too far: the fact that the Tribunal does not tolerate this is understandable.” 

The STL has taken a stand it considers necessary to pursue effective prosecution of the perpetrators of the deadly February 2005 bombing. But in doing so, it has engendered strong opposition on the issue of press freedom. What follows in the contempt issue will have important implications for what measures the STL and other international criminal tribunals may take in an effort to proceed with their mandates.

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A New International Focus on the Death Penalty

The botched execution in Oklahoma last week has drawn international attention.  Few countries still employ the death penalty, and the barbarity of the procedure is old news to our European Union colleagues.

The argument against the death penalty may be decided by – what else – money.  Pharmaceutical companies are refusing to produce the drugs needed for orderly executions and the botched Oklahoma execution may be an example of what will follow.

Prof. Lissa Griffin of Pace Law School recently published a blog on this subject.  Click here to read it in its entirety.

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Ukraine: The ICC’s Authority Grows as Another Non-State Party Accepts Its Jurisdiction

Ukraine gained its independence from the former Soviet Union in 1991 when its parliament adopted the Act of Independence. Since then, Ukraine has worked to stabilize and grow as a new sovereign and independent state with the hope of joining the European Union. That hope was quashed in late 2013 when Viktor F. Yanukovych, then-president of Ukraine, won election for the third time (whether he actually won and whether it was done democratically is debated to date) and began to work closely with Russia rather than the European Union.

In November 2013, protests in Kiev and across Ukraine began. These protests continue today, resulting in almost one hundred dead and thousands injured. In light of the situation, Ukraine, not a party to the International Criminal Court (ICC) referred the situation to the Court, via declaration dated April 9, 2014, and accepted the Court’s jurisdiction. The Registrar of the ICC received this declaration on April 17, 2014.

In the Declaration of the Verkhovna Rada of Ukraine, Ukraine asks the Court to hold senior officials of Ukraine criminally liable for alleged crimes against humanity committed during peaceful protests that took place in Ukraine between Nov. 21, 2013 and Feb. 22, 2014,

namely Yanukovych Viktor Fedorovych – the President of Ukraine – and other officials to be determined by the Prosecutor….

Ukraine utilized the mechanism under Article 12(3) of the Rome Statute, which “enables a State not party to the Statute to accept the exercise of jurisdiction of the Court.” With acceptance of the jurisdiction comes the cooperation obligations described and enumerated under Part 9 of the Rome Statute. The next step is for the Office of the Prosecutor (OTP) to decide whether to initiate investigation into the referred situation. On Friday, April 25, 2014, as reported in the ICC’s press release, Fatima Bensouda

has decided to open preliminary examination into the situation in Ukraine in order to establish whether the Rome Statute criteria for opening an investigation are met.

This is the second time a State that is not party to the Rome Statute referred a situation to the Court. The first situation referred to the Court via the Article 12(3) mechanism was the Situation in the Republic of Côte d’Ivoire. Both situations, Côte d’Ivoire and Ukraine, present an interesting step in the evolution of the ICC’s jurisprudence that was anticipated in the Rome Statute (Article 12(3)) but used only twice. Cases currently pending at the ICC were either referred to the ICC by a State party or the Security Council, or investigation was initiated proprio motu by the Prosecutor. However, Article 12(3) offers a State that has not signed onto and ratified the Rome Statute, an international multilateral treaty, the chance to nevertheless accept the obligations and protections thereunder on a temporary basis.

One may argue that the 12(3) mechanism is circumventing the checks and balances guaranteed in Article 17 of the Statute, which makes the ICC’s jurisdiction complementary to a national jurisdiction. Article 17 states that a case is inadmissible to the ICC where

the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.

But because the process under Article 12(3) is initiated by a State not party to the Statute and is voluntary, it is the State that effectively gives up its own jurisdiction protected via Article 17 and accepts the one of ICC.

And how does this development affect the authority and power of the ICC? Greatly, because it is viewed as an authority with ability to carry out justice even by those who have not yet signed and ratified the Statute.

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