International Crimes Weekly Recap 1-13-06

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Genocide, Crimes Against Humanity—ICTR Begins New Trial

This week, the first day of the 2006 trial year at the United Nations International Criminal Tribunal for Rwanda (ICTR) in Arusha, Tanzania, was also the opening day in the trial phase of François Karera. The three-judge panel in Trial Chamber I, ICTR President and Judge Eric Møse presiding, heard testimony from the first witnesses for the prosecution regarding international crimes alleged to have been committed by Karera, former prefect (civil official) in the Kigali region.^[1]

Karera was arrested in 2001 and charged with genocide and crimes against humanity for acts allegedly committed in 1994.^[2] He entered an initial appearance and plea of not guilty to the charges on October 23, 2001.^[3] Typically, ICTR indictees are housed in U.N. detention facilities in or near Arusha while they await trial.

The first day of testimony included statements of a witness for the prosecution who claimed to have heard the defendant issue orders targeting Tutsi members of the village.^[4] The witness, identified only as an ethnic Tutsi former neighbor of the defendant, stated that shortly thereafter “[t]he people he was addressing immediately began to demolish houses and killing Tutsis.”^[5]

This witness testified with protective measures in place.^[6] Protective measures may include assigning pseudonyms, redacting public records and transcripts of the proceedings, or using audiovisual technologies to alter or screen the witness’ voice and appearance.^[7] A subdivision of the ICTR Registry, the Victims and Witnesses Support Unit, has primary responsibility for coordinating protective measures for testifying witnesses.^[8]

Presentation of the prosecution case is expected to take 4-5 weeks. The defense will then have roughly the same amount of time to present its witnesses and evidence. Under Rule 85, the Trial Chamber may independently present evidence or call witnesses at the close of the prosecution and defense cases.^[9] The trial is scheduled to last until May 2006.^[10]

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[1] Karera Ordered That All Tutsis Be Exterminated, Witness Claims, Hirondelle News Agency [hereinafter Hirondelle], Jan. 11, 2006 (posted online Jan. 12, 2006.). See also ICTR/Karera—Genocide Trial of Former Rwandan Prefet Opens, Hirondelle News Agency, Jan. 9, 2006.
[2] Status Report, Prosecutor v. Karera, last visited Jan. 13, 2006.
[3] Id.
[4] Id.
[5] Hirondelle, supra note 1.
[6] Id. See also Rules of Procedure and Evidence 75: Measures for the Protection of Victims and Witnesses [hereinafter Rule 75].
[7] Rule 75.
[8] Rule 75.
[9] Rules of Procedure and Evidence 85: Presentation of Evidence. Rule 85(A)(v) permits the Chamber to present evidence after the prosecution and defense have had an opportunity to present direct and rebuttal evidence.
[10] Status Conference, Prosecutor v. Karera, Nov. 23, 2005. Trial schedules are always subject to change.

Crimes Against Humanity—Croatia to Seek Interpol Red Notice

A dispute between Australia and Croatia over the power of a so‑called “international arrest warrant” raises some interesting issues about criminal justice enforcement obligations with regard to international crimes. Although this particular controversy is occurring in a transnational setting, the issue could play out similarly in the purely international plane. For example, the International Criminal Court (ICC) now has a co‑operation agreement with Interpol under which it may exercise rights equivalent to Interpol member countries.^[1]

We first discussed the international extradition aspects of this dispute over Dragan Vasiljkovic, known as “Captain Dragan,” in a blog post yesterday. Croatia is interested in prosecuting Captain Dragan for alleged crimes against humanity committed in 1991 and 1993, including killing, torture, and forced deportation.^[2] Today, Australian Justice Minister Chris Ellison's spokesman Brad Burke stated unequivocally that ''[a]n international arrest warrant alone and of itself does not enable the Australian Federal Police to go out and effect an arrest.''^[3] Minister Ellison is correct.

Holding aside the questions about the authority to extradite for now, when a country seeks to prosecute an individual for alleged conduct that occurred in that state and is a criminal offense under that state’s laws, the court of jurisdiction may issue an arrest warrant. If the individual resides or holds citizenship in another nation, that arrest warrant may or may not be binding on the second state, depending on its own domestic jurisdictional provisions. Sovereign states, after all, have the discretion to apply their own laws first. Here, Captain Dragan, who has also used the alias ‘Daniel Snedden,’ lives in Perth and holds dual Croatian‑Australian citizenship.^[4]

A valid state arrest warrant may serve as the legal basis for requesting provisional arrest via an Interpol Red Notice or may be circulated internationally as a “wanted” notice through the network of Interpol National Central Bureaus (NCBs) located in member countries.^[5] Croatia and Australia are both Interpol member countries.^[6]

An Interpol Red Notice is not an international arrest warrant.^[7] In fact, there is no such thing as an international arrest warrant. Rather, Interpol provides the organizational structure for law enforcement groups among its member states worldwide to communicate and collaborate on criminal matters. The Notice system is one part of this structure.^[8] In this case, the Croatian NCB reportedly has submitted a request for a Red Notice to the Interpol General Secretariat.^[9] If Interpol approves the request, it will issue the Red Notice to all Interpol member countries through their local NCBs. At the time of this post, Interpol did not publicly list Dragan Vasiljkovic among individuals for whom notices have been issued.^[10]

Once noticed, Australian courts will take up the matter of whether or not to issue an Australian arrest warrant or other legal order to detain Mr. Vasiljkovic pending extradition proceedings. If Captain Dragan is detained by Australian authorities, the Australian NCB will notify the Croatian NCB or the General Secretariat and will continue to hold him until he is extradited, indicted under Australian law, or released.

Here is the tricky part: Although the process of international notice and provisional arrest is a pre‑extradition process, when the Australian court considers whether to take Captain Dragan into custody pursuant to an Interpol notice, it looks to the requirements of the three international instruments we have identified as constituting the extradition agreement between Croatia and Australia.^[11] However, it does so only for the purpose of answering the question of how to respond to the arrest notice. When Interpol claims that the issuance of a Red Notice may “speed up the extradition procedure,” as though such expeditiousness is a patent benefit, it may be glossing over the shortcomings of shortcutting a more full consideration of the relevant extradition issues.^[12]

Captain Dragan, who lives and works in Perth as a golf teacher, is said to have made frequent trips to Belgrade, often visiting his paramilitary unit's mascot, a bear, and conducting press conferences in which he ridicules the charges against him.^[13]

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[1] Co‑Operation Agreement Between the Office of the Prosecutor of the International Criminal Court and the International Police Organization—Interpol, March 22, 2005.
[2] Natasha Robinson, Dragan Defiant as Arrest Ordered, The Australian [hereinafter Australian], Jan. 12, 2006.
[3] Official Says Australia Cannot Yet Act on Croatia, Associated Press, Jan. 12, 2006 (not yet available online).
[4] Natasha Robinson, From the Quiet Life to War Crime Trial, The Australian, Jan. 13, 2006.
[5] Interpol Legal Fact Sheet, Interpol’s Role in Tracing Wanted Individuals With a View To Their Extradition, [hereinafter Interpol] last visited Jan. 12, 2006.
[6] At the time of this post, there are 184 Interpol member countries.
[7] See Interpol’s statement to this effect here.
[8] Interpol Notices, last visited Jan. 12, 2006.
[9] Australian supra note 2.
[10] Interpol maintains a searchable list of individuals subject to recent Interpol notices here, last searched Jan. 12, 2006. Some experts have suggested the possibility that Interpol maintains non‑public notices in addition to the notices that are made known to the general public.
[11] See the Jan. 11 post on www.internationalextraditionblog.com for more detail about these three agreements. They are (1) the extradition treaty between the U.K. and Yugoslavia (Extradition Treaty, Dec. 6, 1900, Austl.-Yugo., Austl. T.S. No. 123.), (2) the 4th Geneva Convention (Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 146, 6 U.S.T. 3516), and (3) the Principles of International Co-Operation In The Detection, Arrest, Extradition And Punishment Of Persons Guilty Of War Crimes And Crimes Against Humanity (Principles, G.A. Res. 3074 , U.N. GAOR, 28th Sess., U.N. Doc. A/9326, A/L.711/Rev/1(1973). (PDF)).
[12] Interpol supra note 5. “Wanted notifications transmitted through Interpol channels can be sent with requests for provisional arrest. This is generally provided for in the conventions and bilateral treaties relating to extradition…Granting red notices the status of a request for provisional arrest simplifies and, in fact, speeds up the extradition procedure. [Emphasis added.] In fact, if a wanted individual has been traced following the circulation of just an ordinary general wanted notification over the Interpol network, he can only be placed under provisional arrest if the magistrate in the requested state considers that the notification meets all the conditions required for it to be accepted as a request for provisional arrest.”
[13] Natasha Robinson, Interpol Warrant Looms for Dragan, The Australian, Jan. 9, 2006.

War Crimes—ICTY To Track Mladic Through Medical Records

In the ongoing search to locate and transfer international crimes indictees still at large to the International Criminal Tribunal for the Former Yugoslavia (ICTY), officials at the Tribunal have requested that Serbia‑Montenegro turn over the medical records of former military commander Ratko Mladic.^[1] Mladic was originally indicted in 1995 for alleged acts of genocide, war crimes, and crimes against humanity.

Prosecutors are hoping that the medical documents will help to substantiate intelligence reports that Mladic has been seriously ill and has received medical treatment in Serbia during recent years in hiding. The documents will be collected from the Belgrade military hospital and other clinics that might have provided treatment to Mladic.^[2] Serbia-Montenegro Defense Minister Zoran Stankovic, former head of the Belgrade military hospital, is believed to have close ties to Mladic.^[3]

Rasim Ljajic, the Serbian official in charge of relations with the ICTY, acknowledged that the information was not part of the "secret file" documents already submitted to the ICTY and confirmed that his government will comply with the new request.^[4]Serbian officials steadfastly deny that they know anything about the fugitive commander’s whereabouts.^[5] However, ICTY officials remain convinced that the Serb military has been assisting the highly‑prized suspect to elude capture.^[6]

There are 6 indicted individuals remaining on the ICTY “most wanted” list.^[7] They are:

Vladimir Djordjevic—Indicted in 2003 for war crimes and crimes against humanity
Goran Hadzic—Indicted in 2004 for war crimes and crimes against humanity
Radovan Karadzic—Indicted in 1995 (amended in 2000) for genocide, war crimes, and crimes against humanity
Ratko Mladic—Indicted in 1995 (amended in 2002) for genocide, complicity in genocide, war crimes, and crimes against humanity
Zdravko Tolimir—Indicted in 2005 for genocide, complicity in genocide, war crimes, and crimes against humanity
Stojan Zupljanin—Indicted in 1999 (amended in 2001, 2002, and 2004) for war crimes and crimes against humanity

In 2005, Serbia located and transferred 13 suspects to the ICTY, two with the assistance of other national security forces.^[8] The most intense search efforts remain focused on Karadzic and Mladic.

The ICTY resumes trial activity today after a winter recess.^[9]

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[1] UN Prosecutors to Receive Mladic’s Medical Records, Associated Press [hereinafter AP RFE], Jan. 11, 2006. See also UN Tribunal Seeks War Crimes Suspect Mladic Medical Files, Associated Press [hereinafter AP Serbianna], Jan. 11, 2006 and UN Tribunal Seeks War Crimes Suspect Mladic’s Medical Files, Ireland On‑Line [hereinafter IOL], Jan. 11, 2006.
[2] AP Serbianna supra note 1.
[3] Id.
[4] AP RFE supra note 1.
[5] AP Serbianna supra note 1. See also our previous posts on Dec. 29 and Jan. 3.
[6] IOL supra note 1.
[7] Remaining indictees are pictured in a UN/ICTY poster here.
[8] See our previous posts on the 2005 ICTY report to the U.N. Security Council and the arrest of Ante Gotovina.
[9] Weekly schedule of courtroom activities is available here.

Genocide—Universal Jurisdiction in Spain

The Spanish National High Court has agreed to consider a lawsuit filed by a Madrid‑based non‑governmental organization (NGO), human rights group Committee to Support Tibet, concerning allegations of genocide and crimes against humanity .^[1] The complaint was rejected initially by the lower court, but accepted this week by a three‑judge panel upon appeal.^[2]

The complaint purports to have evidence that huge numbers of Tibetans disappeared or were killed by the Chinese government and military forces that entered Tibet in 1951.^[3] The complaint is also said to contain the testimony of individuals who fled Tibet, some after spending as much as 40 years in political prisons.^[4] Individuals named as responsible parties in the complaint include former Chinese President Jiang Zemin, a former prime minister, and several military and security officers (most retired).^[5]

The NGO argued that the legal principle of universal jurisdiction for international crimes should apply in this case. Spain formally embraced universal jurisdiction in 1999 and cited it in earlier High Court Opinions.^[6] Under this type of judicial authority, a foreign national court acts in the manner of a proxy or substitute for a court that might otherwise claim jurisdiction over the person (by nationality) or the act (by sovereignty).

Universal Jurisdiction
Universal jurisdiction is a principle in customary international law that establishes a right of jurisdiction in any nation to try individuals accused of international crimes, regardless of where the alleged crime was committed and regardless of the nationalities of the alleged perpetrator(s) or victim(s). Thus, a sovereign jurisdiction can not offer safe haven to its nationals accused of international crimes.

The principle is specific to crimes committed in the international plain, such as genocide, war crimes, and crimes against humanity, and is based in the rationale that such acts constitute immediate offenses to all states and that any state may act to redress the offense. Opponents of universal jurisdiction warn that courts run the risk of becoming political actors or of usurping the sovereign right of states to deal with problems in international relations with regard to past acts.^[7]

Universal Jurisdiction in Spain
Early applications of universal jurisdiction in Spain include a 1998 opinion in which the Spanish National High Court held that it was against the spirit of the Geneva Convention Against Genocide to limit jurisdiction to territorially qualified courts or international tribunals because genocide is “regarded as a crime of extreme gravity in the whole world and affects directly the international community, indeed all humanity, as is intended by the same Convention.”^[8]

If the lawsuit goes to trial in Spain, the court will apply Spanish national laws prohibiting genocide and crimes against humanity to the facts alleged. It must also defer adjudication to any concurrent charges pending against these defendants in China, should there be any such charges.^[9] There are also likely to be extradition issues involved in bringing Chinese nationals into Spanish courts to face international criminal charges.

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CORRECTION NOTE: The courtrooms of the International Criminal Tribunals for Rwanda and the Former Yugoslavia are closed today for a United Nations holiday in observance of Eid al-Adha. Eid al‑Adha is the most important Moslem feast day of the calendar year. Yesterday, we reported that the courts would resume trials today.

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[1] Spanish Court Agrees to Consider Genocide Complaint, Associated Press [hereinafter AP], Jan. 10, 2006. Originally reported by Daniel Woolls, Spanish NGO Seeks Genocide Indictment of China Over Treatment of Tibet, Associated Press, June 28, 2005. See also Spain's High Court Urged to Consider Charges Against China Over Tibet, Voice of America News [hereinafter VOA], Jul. 30, 2005.
[2] AP supra note 1.
[3] AP supra note 1.
[4] Id. See also note 6 infra.
[5] Id. Because the accused individuals are no longer office‑holders, questions of governmental immunity are less likely to arise.
[6] VOA supra note 1.
[7] For a cogent and well‑known articulation of these arguments and others, see Henry Kissinger, The Pitfalls of Universal Jurisdiction: Risking Judicial Tyranny, 2001 excepted from the author’s book on the Global Policy Forum website, here.
[8] Audiencia Nacional, don Adolfo Francisco (Scilingo) (No. 1998/22604) Nov. 4, 1998, at 3, Legal Ground no. 2. In the famous Pinochet decision, the Spanish National High Court made the same finding with regard to the crimes of torture and terrorism.
[9] Id.

International Crimes—NATO, Ashdown Sanctions for Bosnia, Serbia

Over the weekend, Paddy Ashdown, outgoing High Representative and European Union Special Representative in Bosnia announced that the Serb Democratic Party (SDS) funds that had been frozen since early last year will not be returned to the SDS.^[1] The restoration of the funds had been conditioned upon the arrest of war crimes suspects Radovan Karadzic and Ratko Mladic no later than the end of 2005.^[2] Recent, unconfirmed reports have placed Karadzic still in hiding in the Serb‑controlled area of Bosnia and Mladic in nearby Serbia.^[3]

Karadzic and Mladic were originally indicted by the International Criminal Tribunal for the Former Yugoslavia (ICTY) in 1995 for alleged acts of genocide, war crimes, and crimes against humanity under the ICTY Statute.

Ashdown spokeswoman Ljiljana Radetic told reporters that because Karadzic and Mladic remain at large, the “money will, over the coming months, be re-allocated to the budget of the Bosnia‑Herzegovina institutions."^[4] Roughly €100,000 ($121,000) of the money is expected to be transferred to the Bosnian State Investigation and Protection Agency (SIPA), the state court’s war crimes chamber, and the state election commission.^[5] German diplomat Christian Schwarz‑Schilling will replace Mr. Ashdown at the end of this month.^[6]

In a related announcement, NATO Secretary-General Jaap de Hoop Scheffer announced a deadline for the capture and extradition of the two former Bosnian Serb leaders by the end of 2006.^[7] de Hoop Scheffer implied that the capture of Karadzic and Mladic would satisfy the final “conditions” for entering into a Partnership for Peace (PfP) Accord. Signing a PfP Accord strengthens the relations of NATO with nonmember countries and is often a de facto condition for full membership in the NATO defense alliance.^[8]

Serbian President Boris Tadic is also quoted as calling for the two to turn themselves in, in the interests of the greater national good.^[9] In previous posts we have discussed the increasing pressure placed on Bosnia and Serbia by the United Nations, the European Union, and the international community to bring the remaining ICTY indictees at large to stand trial in The Hague.

Also this week, most of the world’s international criminal courts will reconvene after the judicial winter break. The Iraqi Special Tribunal is scheduled to recommence on January 21.

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[1] Ashdown Punishes Bosnian Serb Party Over Karadzic, Reuters [hereinafter Reuters], Jan. 5, 2006.
[2] Id.
[3] Mark John, NATO Demands Results on Karadzic, Mladic in 2006, Reuters [hereinafter Mark John], Jan. 9, 2006.
[4] Id.
[5] Reuters supra note 1.
[6] Bosnia: Schwarz‑Shilling to Replace Paddy Ashdown, AKI News Agency, Dec. 14, 2005.
[7] Mark John supra note 3.
[8] Mark John supra note 3. The article notes that since 1994, 10 of the 30 countries that have signed such accords have become full NATO members.
[9] Serbian President Tadic Summons Top War Criminals Karadzic and Mladic to Surrender, FOCUS News Agency, Jan. 6, 2006.

McNabb in the News

Senior Principal Douglas McNabb is quoted in the Denver Post in an article about Joe Nacchio who has been indicted on insider trading charges.

Mr. Nacchio’s defense so far is that the Qwest board of directors ordered him to “unload millions’ worth of company shares,”^[1] which could be a vital defense:

"He would argue that what he was doing was with full knowledge and authorization of the board," said Douglas McNabb, senior principal of McNabb Associates, a Washington, D.C.-based criminal defense law firm not involved in the Nacchio case. "That's huge."^[2]

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[1] Andy Vuong, Nacchio Could Point to Board’s Actions, Denver Post, Jan. 8, 2006.
[2] Id.