ICTY Search for Mladic—EU Grants Extension

In a somewhat surprising move, the Chief Prosecutor Carla Del Ponte of the International Criminal Tribunal for the Former Yugoslavia (ICTY) reportedly has issued a favorable report of cooperation by the Serb government in the search for fugitive international crimes ICTY indictees Ratko Mladic and Radovan Karadzic. As a result, Olli Rehn, European Commissioner for Enlargement, announced today that the EU would allow one more month before taking any action to put EU ascension talks with Serbia‑Montenegro on hold. Serbia now has until April 30 to hand Mr. Mladic over to the ICTY.^[1]

In the course of the Chief Prosecutor’s visit to Belgrade this week, Serb President Boris Tadic promised that he would not “take down” Prime Minister Vojislav Kostunica’s cabinet in order to ensure cooperation with the international search.^[2] During Del Ponte’s visit on Wednesday to Belgrade, Serbian officials asked her to show understanding for the "complex political situation" there and not urge the suspension of EU talks. Apparently, the phrase was a coded warning that ultranationalists could unseat the moderate government if it rushed to cooperate with the UN tribunal.^[3]

Serbian Prime Minister Vojislav Kostunica, Deputy Prime Minister Mrioljub Labus, and President Boris Tadic are all from different political parties and seem to taking turns accusing each other of either not cooperating with the Tribunal or of being too cooperative. When Labus suggested that Kostunica and Tadic call on the National Security Council to place all of the military and police forces under civilian government control, Tadic responded by declaring that he hoped that “Mr. Labus did not dare accuse me for not doing enough…[i]f anyone is encouraging cooperation with the tribunal, that is me.”^[4]

The fear is that if the cabinet is toppled, the Tribunal will lose support of the government and progress toward the arrest and transfer of the indictees will stall. According to the ICTY completion strategy, the Tribunal is due to conclude its judicial processes by the end of 2010.^[5]

In other Tribunal news, the Swedish Government yesterday accepted request from the ICTY Registrar to conduct an independent audit of its Detention Unit.^[6] According to agreements and regulations already in place, the audit will be primarily administrative.^[7]

Oversight for the actual detention conditions and treatment of individuals detained for trial by the ICTY is the responsibility of the International Committee of the Red Cross (ICRC). In April 1995, then‑President Antonio Cassese invoked Rule 6 of the ICTY Rules of Detention to request that the ICRC perform that function.^[8] The ICRC accepted that responsibility on May 5, 1995 and has been acting in that capacity since that date.^[9]

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[1] Del Ponte Once Again Requests from Belgrade to Deliver Mladic, FENA News, Mar. 30, 2006. See also Constant Brand, Serbia Has More Time to Hand Over Suspect, Associated Press, Mar. 31, 2006.
[2] What Del Ponte Asked of Tadic, B‑92, Mar. 31, 2006.
[3] EU Extends Deadline for Mladic Handover, Guardian Unlimited, Mar. 31, 2006.
[4] Id.
[5] In previous posts, we have discussed the ICTY completion strategy and the advisements made in reports to the Security Council that the Tribunal expects to extend that deadline.
[6] Swedish Government Accepts Tribunal Request to Audit the Detention Unit, ICTY Press Release AM/MO/1060e, Mar. 31, 2006.
[7] See for example United Nations Security Council Resolution 827 (1993) of 25 May 1993, ICTY Rule of Procedure and Evidence 24(v), and ICTY Rule of Detention 6.
[8] Appointment of Inspection Authority for the Detention Unit, Letter from ICTY President Antonio Cassesse to ICRC President Cornelio Sommaruga, April 28, 1995.
[9] Id. at Letter from ICRC President Cornelio Sommaruga to ICTY President Antonio Cassesse, May 5, 1995.

Charles Taylor—Change of Venue

Yesterday we noted the surrender and transfer of former Liberian President Charles Taylor to the Special Court for Sierra Leone. Today, it looks like Mr. Taylor may be headed toward The Hague, either before he enters an initial appearance, or just after, for his trial on charges of war crimes.^[1]

It is important to note that this is only a change of venue and not a change of jurisdiction. Mr. Taylor has been indicted by the Special Court only. In fact, none of the alleged acts in question are subject to the jurisdiction of any other international criminal courts.

• Jurisdiction under the Rome Statute of the International Criminal Court (ICC) excludes conduct prior to July 1, 2002. Mr. Taylor has been indicted for conduct that allegedly occurred between November 30, 1996 and 2000.
• Jurisdiction under the statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY) is exclusive to conduct committed in the territory of the former Yugoslavia. Mr. Taylor has never been tied to conduct in the Balkans.
• Jurisdiction under the statute of the International Criminal Tribunal for Rwanda (ICTR) is exclusive to conduct committed in Rwanda. There are no allegations that Mr. Taylor committed prohibited acts in Rwanda.

Although most parties involved—from American President George Bush to the defendant himself—seem to be in agreement that the war crimes trial of Charles Taylor should take place outside of Freetown, seat of the Special Court of Sierra Leone, Dutch officials have stipulated that their agreement is contingent on the issuance of a special resolution from the United Nations Security Council. The Statute of the Special Court for Sierra Leone is silent on the issue of location for trial.^[2] However, in a recent press release, the Special Court cited Procedural Rule 4 as a basis for permitting the Trial Chamber to conduct its work away from Freetown.^[3]

The concern most often cited by the parties pushing for a change of venue in this case is less the risk of an unfair trial than the threat of violence and instability in the region. Mr. Taylor’s own National Patriotic Party is alleged to be in favor of a trial outside Sierra Leone and Liberia.^[4] Reportedly, concerns about a backlash of violence upon the arrest of Mr. Taylor prompted Sierra Leone Chief Prosecutor Desmond de Silva to bring up the possibility of trying Mr. Taylor in The Hague as early as last year.^[5]

A lone voice of dissent comes from Yasmin Jusu-Sheriff, former executive-secretary of the Sierra Leone Truth and Reconciliation Commission who believes that the proceedings should remain in Sierra Leone because “it is necessary for ordinary people to be part of the trial and for the trial to be accessible to them, the ordinary people who suffered during the war, to be able to also know that justice can also be done as well as atrocities can be done in the Mano River sub-region.”^[6]

The idea of physically relocating the trial—without changing jurisdictions—seems to be unopposed by Mr. Taylor himself. In addition, the President of Liberia, Ellen Johnson Sirleaf, stated to reporters today that her “government was interested in maintaining the dignity of Mr. Taylor as a person. She said this was in line with the international Geneva conventions that a person is innocent until proven guilty by a court.”^[7]

This development brings up several interesting, hypothetical issues.

• Is venue important in proceedings before international criminal tribunals?
• Although international criminal tribunals with jurisdiction over a matter have a superior claim over state courts with concurrent jurisdiction, as between two international criminal tribunals with jurisdiction, which has primacy? Is consensus an acceptable basis for venue? When is consensus not an acceptable basis for venue decisions?^[8]
• In cases of concurrent or co‑extensive jurisdiction between two international criminal courts, to what extent may the customary international law doctrine of non bis in idem (roughly equivalent to the doctrine of double jeopardy in American criminal law) bar consecutive prosecution?^[9]

So far, international crimes trials have taken place in the home court of the charging jurisdiction. Until the trial in the case of the bombing of Pan Am flight 103 over Lockerbie, Scotland, the idea of moving the physical location of even a transnational crimes trial was unheard of in international law. In 2000, the High Court of Scotland agreed to hear the case in its entirety under Scottish law at a converted former camp and one‑time U.S. air base in the Netherlands.^[10] The change of venue was accomplished outside of international law by agreement (treaty) between all parties (Libya, Scotland, UK, US) as a condition of extradition from Libya.^[11] The common concern was that a neutral location was necessary to obtain a fair trial, given the nature of the case. In 2001, one of the two Libyan defendants was convicted in the 1988 bombing deaths of 270 civilian air passengers over Scotland.^[12]

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[1] Carl Timberg, Liberian President Urges Moving Taylor Trial to The Hague, Washington Post, Mar. 30, 2006.
[2] Statute of the Special Court of Sierra Leone. Article 22 states only that sentences of imprisonment “shall be served” in Sierra Leone but may be served outside of Sierra Leone pursuant to an ICTY/ICTR-type agreement.
[3] Special Court for Sierra Leone Rules of Procedure and Evidence, Rule 4. See also President of Special Court Requests that Charles Taylor Be Tried in The Hague, SCSL Press Release, Mar. 30, 2006.
[4] Frank Sanworla and Joe Da Capua, Liberian President Says Charles Taylor Should be Tried at Hague, Voice of America, Mar. 30, 2006.
[5] Joseph Winter, Taylor Trial May Be Out of Africa, BBC News, Mar. 30, 2006.
[6] Joe Da Capua, Former Sierra Leone TRC Official Favors Charles Taylor Trial in Freetown, Voice of America, Mar. 30, 2006.
[7] Id.
[8] It must be noted that because none of the other international criminal courts have jurisdiction over Mr. Taylor or his alleged misdeeds, he cannot be charged under the statutes of the International Criminal Court or any of the U.N.‑backed ad hoc courts. Under Article 8 of the Statute of the Special Court of Sierra Leone, the Court has concurrent jurisdiction with the national courts of Sierra Leone.
[9] Article 9 of the Statute of the Special Court states that an individual shall not be tried twice for the same offence in the Special Court or in both the Special Court and a national court.
[10] Ian Black, Lockerbie: At Last The Trial Begins, Guardian Unlimited, May 3, 2000.
[11] The website related to the Lockerbie trial is still online and provides a great deal of background, including legal documents relating to the trial and appeal.
[12] Timeline: A Chronology of Events Since the Lockerbie Crash, Guardian Unlimited, Jan. 23, 2002.

Charles Taylor—Surrender to the Special Court for Sierra Leone

Last Monday, we reported the willingness of Nigeria to make Charles Taylor available to the Liberian government for surrender to the UN‑backed Special Court for Sierra Leone. We also noted the possibility that this relatively passive posture opened the door for Taylor, a multi‑millionaire still enjoying support from loyal followers, to make a run. Not surprisingly, yesterday Mr. Taylor was reported as missing somewhere in Nigeria.

In a dramatic turn of events, Mr. Taylor appears to be on his way to the Sierra Leone court in the custody of U.N. peacekeeping forces after being apprehended by Nigerian border guards near Cameroon.^[1] The story is that Mr. Taylor was seized at dawn this morning approximately 930 miles (1,500 km) from his home in Calabar. According to local officials, he was traveling in a jeep with diplomatic plates with a woman and boy, and a large amount of money in dollars in a trunk.^[2]

From Nigeria, Mr. Taylor was “repatriated” or “deported” to Liberia, allegedly on board a Nigerian presidential jet.^[3] There, peacekeeping troops installed as part of the United Nations Mission in Liberia (UNMIL) took custody of Mr. Taylor at Roberts International Airport in the capital city of Monrovia, handcuffed him, and prepared to transport him to Sierra Leone for detention and trial.^[4] At the time of Mr. Taylor’s arrest and transport, Nigerian President Olusegun Obasanjo was in the United States meeting with President Bush.^[5]

Authority to take custody of Mr. Taylor and transfer him to the Court at Sierra Leone was specifically conferred on UNMIL by the U.N. Security Council under its Chapter VII powers in Resolution 1638 (2005).^[6]

Mr. Taylor will be housed in the Special Court detention unit in Freetown, under the watch of U.N. security guards.^[7] Under the Special Court’s Rule 61, Mr. Taylor will make an initial appearance in court where he will be informed of the charges contained in the indictment against him, and will have a chance to enter a plea of guilty or not guilty on each count.^[8] The court will also make a determination about whether or not defense counsel should be appointed.^[9] In the case of a plea of not guilty, the Court will set a date for trial.^[10]

In a sense, Mr. Taylor has already made an appearance before the Special Court. In 2003, he filed a motion to quash his indictment on 17 counts of crimes against humanity and set aside the arrest warrant. ^[11] Taylor argued that the Court lacked jurisdiction over him by virtue of his position as head of state. The motion, made under protest and without waiving immunity, was heard by the Court under a sovereign immunity exception to the usual rule that a defendant may not petition the Court before his initial appearance. The motion was denied by the Appeal Chamber in 2004.^[12]

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[1] Ibrahim Mshelizza, Nigeria Deports Ex‑Liberian Warlord Taylor, Reuters, Mar. 29, 2006.
[2] Id.
[3] Id. See also Liberia’s Taylor Taken to War Crimes Trial, Reuters, Mar. 29, 2006.
[4] Id. An overview of UNMIL can be found on the UN website here or the UNMIL website here.
[5] Id.
[6] U.N.S.C. Res. 1638 (2005), stating that “the mandate of the United Nations Mission in Liberia (UNMIL) shall include the following additional element: to apprehend and detain former President Charles Taylor in the event of a return to Liberia and to transfer him or facilitate his transfer to Sierra Leone for prosecution before the Special Court for Sierra Leone and to keep the Liberian Government, the Sierra Leonean Government and the Council fully informed.” See also Security Council Includes Former President's Apprehension, Transfer to Special Court in Mandate of the United Nations Mission in Liberia, UNMIL Press Release, Nov. 11, 2005.
[7] Id.
[8] SCSL Rules of Procedure and Evidence, Rule 61. In contrast, the International Criminal Court does not require that an indictment be in place prior to initial appearance, only that the Court be satisfied that the accused is informed of the charges to be brought against him.
[9] Id.
[10] Id.
[11] Decision on Immunity from Jurisdiction, Prosecutor v. Taylor, No. Appeal Chamber, May 31, 2004.
[12] Id.

ICC—Initial Appearance Overview

Last week, we discussed the first arrest, detention, and public hearing at the International Criminal Court (ICC) in The Hague. The published transcripts and decisions in the situation of the Democratic Republic of the Congo (DRC), Mr. Thomas Lubanga Dyilo, reveal how the criminal trial procedures envisioned in the Rome Statute and related legal documents are coming to life in this unique judicial arena. This post takes a broad look at the proceedings so far. Subsequent posts will look more closely at each phase of the proceedings.

Arrest
Mr. Lubanga was arrested in the Congo and was held on state criminal charges for a year, first under house arrest and then in a Kinshasha jail until March 17. On that day, Mr. Lubanga was “surrendered” to the ICC by the Congolese government pursuant to an ICC arrest warrant issued on February 10, 2006, and effected by the duty of the DRC, as a member state, to provide cooperation.^[1]

According to Article 58 of the Rome Statute, the ICC Pre‑Trial Chamber will issue an arrest warrant upon an adequate showing by the Prosecutor that there are reasonable grounds to believe that an individual has committed a crime within the Court’s jurisdiction and that the arrest is necessary.^[2]

The warrant remained sealed until Mr. Lubanga was aboard a French military plane and out of Congolese airspace.^[3]

Detention
At the moment, Mr. Lubanga is the only guest at the temporary ICC detention facility in The Hague. The center is housed in a 12‑cell leased unit while construction of a new, dedicated prison wing at Scheveningen, near The Hague, is underway. The new center is scheduled to be operational in 2007 or 2008.^[4]

Initial Appearance
Mr. Lubanga entered an initial appearance on March 20, represented by a “duty counsel,” or provisional defense attorney appointed by the ICC Bureau of Defense Counsel. Minimum qualifications for defense counsel at the ICC are explained in Rule 22(1) and Regulation 67. Qualifications include at least 10 years of practice in the area of criminal defense and competence in one of the working languages of the Court (French or English).^[5] The Court maintains a list of eligible counsel from which it makes appointments for both duty and regular counsel. Defendants also have access to this list of available counsel.

In this case, Mr. Lubanga had the good fortune to be represented by Belgian defense attorney Jean Flamme. Mr. Flamme raised several important points at the initial appearance that will preserve Mr. Lubanga’s rights to appeal or raise other defensive issues at trial. Contested issues included jurisdiction, admissibility of the case, the validity of the ICC arrest warrant, and the validity of the state custody in Kinshasha prior to Mr. Labanga’s transfer to The Hague.

Mr. Flamme was summoned to The Hague as duty counsel after the arrest warrant for Mr. Lubanga was unsealed. He had less than 24 hours to meet his client, become familiar with the case, and prepare for the hearing. On the other side of the courtroom were 5 members of the Prosecution team including a Senior Trial Attorney, 3 Associate Trial Lawyers, a Deputy Prosecutor, and a Case Manager.^[6]

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In the next post on this topic, we will examine the basic procedural aspects of an initial hearing at the ICC.

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[1] Rome Statute Preamble and Part 9: International Cooperation and Judicial Assistance.
[2] Rome Statute Art. 58: Issuance by the Pre‑Trial Chamber of a Warrant of Arrest or a Summons To Appear. See also Art. 59 and Rules of Procedure and Evidence 117.
[3] First Arrest for the International Criminal Court, ICC Press Release ICC-CPI-20060302-125-En, Mar. 17, 2006.
[4] See for example information published by the Coalition for the International Criminal Court, available here.
[5] Rules of Procedure and Evidence 22(1) and Regulations of the Court 67.
[6] Transcript of the First Appearance Hearing, Prosecutor v. Lubanga, Case No. ICC‑01//04‑01/06, Mar. 20, 2006.

Crimes Against Humanity—Charles Taylor

This morning we reported Nigeria’s agreement to turn over ex‑Liberian President Charles Taylor to the Special Court at Sierra Leone (SCSL) for trial on international crimes
charges. Mr. Taylor has reportedly been in exile in Nigeria for the past three years and is alleged to own a waterfront mansion in the south-eastern Nigerian town of Calabar.^[1] This afternoon, it is reported that Nigeria will not so much turn Mr. Taylor over as it will make him available for collection by Liberian authorities.

Desmond de Silva, Chief Prosecutor for the Sierra Leone court, stated that “it’s a matter for the Liberian authorities to work out with Nigeria what the modalities should be.”^[2] De Silva also endorsed the idea that Nigeria has only provided temporary asylum to Mr. Taylor, coupled with the willingness to turn him over upon request by the Liberian government.^[3]

However, in a press release from the Office of The Prosecutor dated March 26, de Silva also uses strong rhetorical language in urging Nigerian President Olusegun Obasanjo not to give Taylor any kind of a head start that would permit him to elude Liberian authorities, finally asking that Obasanjo execute the arrest warrant issued by the Special Court for Taylor in 2003.^[4] de Silva notes that “the watching world will wish to see Taylor held in Nigerian detention to avoid the possibility of him using his wealth and associates to slip away, with grave consequences to the stability of the region.”^[5]

Charles Taylor could be the first head of state to be tried for international crimes at the U.N‑backed Special Court. Taylor was indicted on March 7, 2003 on 17 counts of war crimes, and crimes against humanity under the Sierra Leone Statute for events alleged to have taken place within the territory of Sierra Leone since November 30, 1996.^[6] Along with Johnny Paul Koroma, Mr. Taylor is one of the last two remaining SCSL indictees still at large.

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[1] LIBERIA—NIGERIA—SIERRA LEONE: What Next for Taylor? IRIN News, Mar. 27, 2006.
[2] Joe De Capua, Chief Prosecutor Rejects Attempts at Intimidation By Charles Taylor Supporters, Voice of America [hereinafter VOA], Mar. 27, 2006.
[3] Id.
[4] Urgent Statement by the Prosecutor of the Special Court, Desmond de Silva, QC, On His Request to Nigeria to Execute a Warrant of Arrest on Former President of Liberia Charles Taylor, Press Release from the Special Court for Sierra Leone, Mar. 26, 2006.
[5] Id.
[6] Prosecutor v. Charles Taylor, Indictment, No. SCSL 03‑01‑I‑001, March, 7, 2003.