Tagged: report

ICC Prosecutor Asked to Reconsider a Matter Involving Israel’s Blockade of Gaza

POST WRITTEN BYProf. 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 July 16, 2015, a 2-1 majority of Pre-Trial Chamber I issued a strongly worded decision finding what it termed numerous “material” errors in the ICC Prosecutor’s decision not to open a formal investigation of war crimes allegedly committed by members of the Israeli Defense Forces (IDF) in May 2010 when they intercepted and boarded ships that were attempting to penetrate Israel’s naval blockade of Gaza.

As I mentioned in an earlier post, on November 6, 2014 the ICC Prosecutor issued a report explaining that after months of review, she declined to open a formal investigation of the matter. The report was issued under Article 53(1) of the Rome Statute in response to a request of ICC State Parties, including the Union of Comoros, whose vessels were boarded by the IDF during the May 2010 incident. The report concluded that although there was a reasonable basis to believe that members of the IDF willfully killed ten of the 500+ passengers on one of the vessels, caused serious injury to several others, and committed outrages upon personal dignity of others, a formal investigation was unwarranted because the crimes involved, given the surrounding circumstances, would fail to meet the gravity requirement of Article 17(1)(d) of the Rome Statute.

In January 2015, the Union of Comoros invoked the opportunity provided by Article 53(3)(a) to request the Pre-Trial Chamber seized of the matter to review the Prosecutor’s decision not to proceed and to request reconsideration of the decision. Comoros’s application challenged several conclusions in the Prosecutor’s report.

In its July 16, 2015 decision, the Chamber’s majority discounted some of these challenges but agreed with several others regarding the Prosecutor’s alleged failure to properly address factors relevant to the gravity determination.

Addressing standard of review, the majority stated that a request pursuant to Article 53(3)(a) requires a Chamber “to exercise independent judicial oversight” and apply “exacting legal requirements.” It added that “[i]n the presence of several plausible explanations of the available information,” the Prosecutor must open an investigation so that she can “properly assess the relevant facts.”

Applying this standard, the majority faulted the Prosecutor for at times deciding against investigation of matters on which there were conflicting claims. Of particular importance, the majority suggested that the Prosecutor may have “willfully ignored” credible evidence that the IDF fired upon one of the vessels prior to boarding. Such evidence, if established, would support the proposition that there was a systematic plan to attack civilians on that vessel.

Accordingly, the Chamber issued a request to the Prosecutor to reconsider her decision not to investigate the situation.

The Chamber’s decision involves procedural issues regarding a Chamber’s Article 53(3)(a) review that will have to be resolved in the future. In his dissenting opinion, Judge Péter Kovács argued that, among other failings he perceived, the majority “introduced for the first time a standard for reviewing negative decisions undertaken [by a prosecutor pursuant to Article 53(1)] without explaining the legal basis for its endorsement.” In Judge Kovács’s view, “the Pre-Trial Chamber’s role is merely to make sure that the Prosecutor has not abused her discretion in arriving at her decision not to initiate an investigation ….” Reviewing the evidence and submissions, he concluded that the Prosecutor did not abuse her discretion in this matter.

Correctional Association Report on Women in NYS Prisons

POST WRITTEN BY: Michael B. Mushlin, Professor of Law at Pace Law School, Scholar, and Renowned Expert on Prisoners’ Rights.

Following an exhaustive five year investigation the Correctional Association of New York has just released a ground- breaking study of the treatment of women in New York state prisons. The report entitled Reproductive Injustice: The State of Reproductive Health Care for Women in New York State Prisons tells a distressing tale about how female prisoners are denied basic rights essential for women including substandard gynecological care and insufficient supplies of feminine hygiene products and toilet paper. Chillingly, the report describes the horrible practice of shackling pregnant women during labor, delivery, and postpartum recovery, in apparent violation of the state’s 2009 law barring such practices, as well as throwing some of these women into solitary confinement, which could have serious consequences for the mental health of the mothers and for the health of their unborn children.

The Correctional Association of New York is a 170 year old non-governmental organization with the legal authority to visit New York’s prisons and report to the public and to the Legislature its findings. It is one of only two such organizations in the country. The author of this important study, Tamar Kraft-Stolar, director of the Correctional Association’s Women in Prison Project, will visit Pace Law School on April 1st to speak at a PILSO Sponsored forum open to the public and also to speak at the law school’s Prisoners’ Rights Course.  More details about this event will be forthcoming.

Online Resolution of Disputes

A recent UK report recommending the adoption of on-line resolution of low-value civil disputes contains a fascinating look at various online dispute resolution systems currently operating in various jurisdictions, including one involving the resolution of traffic infractions. These systems are designed to improve access to justice for those who cannot afford the exorbitant cost of in-court litigation. The UK Traffic Penalty Tribunal enables appellants to appeal, upload evidence and follow their cases, and allows adjudicators to manage their cases, view evidence, and communicate with parties. Hearings are done by telephone conference, at which all participants can view the same evidence under supervision by the adjudicator. To be sure, there are pros and cons.

Food for thought, though, for anyone who has participated in the in-court adjudication of a traffic infraction; more importantly, since the unavailability of affordable legal solutions in the United States now extends beyond the traditionally poor and well into the middle class.

To read the full report, including a survey of current on-line dispute resolution processes worldwide, click the below:

Online Dispute Resolution Advisory Group, Online Dispute Resolution for Low Value Civil ClaimsCivil Justice Council (February 2015). 

After 20 Years of Existence, ICTY and ICTR Begin Preparations to Close

On June 5, 2014, Judge Theodor Meron, President of the ICTY, and Judge Vagn Joensen, President of the ICTR, addressed the 15 member Security Council on the work each tribunal has accomplished over the past twenty years of existence. The International Criminal Tribunal for Rwanda (ICTR) was established after the 1994 genocide where 800,000 men, women, and children – “overwhelmingly Tutsi, moderate Hutu and Twa” – were systematically killed over the course of 100 days, and the tribunal marked 20 years of existence in April 2014. The International Criminal Tribunal for the former Yugoslavia (ICTY) was established to deal with war crimes that took place during the conflicts in the Balkans during the 1990’s and will mark 20 years in existence on November 8, 2014.

Judge Theodor Meron, President of the ICTY, stated

Since its establishment by this council the ICTY has been the subject of diverse and ambitious expectations. For some observers the tribunals were the means by which victims and witnesses of horrific crimes have had and continue to have an opportunity to be heard and an opportunity to obtain a sense of justice.

Judge Vagn Joensen, President of the ICTR, stated

Rwanda’s achievements over past 20 years are quite impressive, including the creation of stable and functioning government whose commitment to national reconciliation and strengthening of the rule of law can be seen through one example of its vigorous effort to rebuild its justice system. 8 November 2014 will mark 20 years since this esteem Council saw it fit at the initial request of Rwanda to create this international tribunal. We hope that the international community will use this occasion as an opportunity to mark Rwanda’s achievements, as well as to further study the lessons learned from what was only an experiment in the international justice in 1994.

The representatives of both tribunals further called on the need for Member States to cooperate to support the efforts accomplished so far and to complete what remains to be done, after the tribunals close, including apprehension of the remaining fugitives. Judge Meron further noted that international tribunals alone  cannot solve “long-running historical conflicts;” they must be part of a “panoply of transitional justice measures.”

Currently, the tribunals are working closely with the Mechanism to transition the remaining responsibilities, including services to vulnerable victims and witnesses, supervising the enforcement of sentences across two continents, and addressing requests for assistance from national jurisdictions. The Mechanism’s archives section works closely with ICTY and ICTR on the preparation and transfer of records to the custody of the Mechanism.

Related Readings: