ICTY—Tribunal Appoints Two Ad Litem Judges

This morning, the International Criminal Tribunal for the Former Yugoslavia (ICTY) swore in two new ad litem judges.^[1] There are now a total of 9 temporary jurists sitting at the international crimes Tribunal.^[2] In all likelihood, the reason for the appointments at this time is related to the recent innovation at the ICTY of using “reserve judges,” as permanent replacements for sitting judges. We discussed this development—which occurred by statutory amendment by the U.N.—on March 6.

It is no coincidence that the new Rule of Procedure and Evidence 15ter, creating the office of reserve judge, and the amendments to Rule 15bis, creating the permanent replacement procedure, became effective yesterday.^[3] By amendment, Article 12 of the ICTY Statute now addresses the election of reserve judges from among the ad litem group and Article 13ter(3) addresses the roles and responsibilities of reserve judges.

Each of the three sitting Trial Chambers is comprised of three permanent judges plus ad litem judges as needed. Once appointed, ad litem judges are charged with following the entirety of the trial to which they have been assigned. Ad litems may also hear pre‑trial and other matters in any case.^[4] Under the new rules, if a permanent judge suffers death or permanent disability, one of the ad litem may succeed to the vacated chair as a permanent reserve judge for the remainder of the trial.

Both of the new ad litem judges have been assigned to the case of Prlić et al., in which 6 individuals have been charged with war crimes and crimes against humanity arising from the alleged “ethnic cleansing” of Muslims and other non‑Croats in the region of Herceg‑Bosna between 1991 and 1994.^[5]

Appointment of Ad Litem Judges
In total, the Tribunal is staffed with 16 permanent judges and up to 12 ad litem judges. Under Article 13ter of the ICTY Statute, the process for the appointment of ad litem judges begins with the nomination of up to 4 judges per U.N. member state and permanent observer states.^[6] The U.N. Secretary‑General refers this list of nominees to the United Nations Security Council for the selection of a pool of at least 54 candidates.^[7] The General Assembly then elects a panel of 27 ad litem judges from this pool by a majority vote of member and permanent observer states.

When the Tribunal requires additional ad litem judges for service, the President of the Tribunal submits a request to the U.N. Secretary‑General who then makes an appointment from the panel of 27 elected judges.^[8] The President may request the appointment of a particular judge.^[9]

Ad litem judges serve for a term of four years and may be reelected for subsequent terms.^[10] Once called up by the Tribunal, an ad litem may serve on the bench for one or more trials for a period of up to 2 years and 364 days.^[11] The basic requirements for becoming an ICTY judge are described in Article 13 et seq. in the ICTY Statute and include “high moral character” and experience in criminal and international law.^[12]

By statute, the overall composition of the Tribunal must take into consideration a representative geographic distribution, a balance of jurists representing the principal legal systems of the world, and an equitable balance of men and women.^[13]

The judges who were sworn in today are Stefan Trechsel of Switzerland and Arpad Prandler of Hungary.^[14] Judge Trechsel is a law professor and past president of the European Commission on Human Rights. Judge Prandler is law professor and served on the Preparatory Commission of the International Criminal Court (ICC).

The ICTY will be closed for Easter holidays from April 14 through April 17.^[15]

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[1] Two Ad Litem Judges Sworn In, ICTY Press Release JP/MOW/1064e [hereinafter Press Release], Apr. 7, 2006.
[2] Id.
[3] Amendments to the Rules of Procedure and Evidence, Mar. 30, 2006.
[4] ICTY Statute, art. 13quater.
[5] Id. See also Indictment, Prosecutor v. Prlić et al, IT‑04‑74, Mar. 2, 2004.
[6] Id.
[7] Press Release supra note 1. See also ICTY Statute, art. 13ter(1).
[8] ICTY Statute, art. 13quater(2).
[9] Id.
[10] ICTY Statute, art. 13quater(1)(e).
[11] ICTY Statute, art. 13quater(2).
[12] ICTY Statute, art. 13.
[13] ICTY Statute, art. 13 et seq.
[14] Press Release supra note 1.
[15] ICTY Weekly Press Briefing, Apr. 4, 2006.

Genocide—US House Votes to Sanction “Implicated” Individuals

Yesterday, the United States House of Representatives passed a bill targeting individuals “implicated” in genocide, war crimes, or crimes against humanity in Sudan for economic and political sanctions.^[1] The measure was approved by a landslide 416‑3 margin.^[2]

In the sections of the bill calling for sanctions against individuals, the target is identified as “any individual who the President determines is complicit in, or responsible for, acts of genocide, war crimes, or crimes against humanity in Darfur, including the family members or any associates of such individual to whom assets or property of such individual was transferred on or after July 1, 2002.”^[3] No evidence, or even formal accusation under law, appears to be required to incur penalties under the language of this bill.

Although the measure is designed to bring pressure on a humanitarian crisis widely acknowledged to be out of control, the bill is unbounded in its scope. Designated individuals could be nationals of any country, including the United States. Likewise, the President has unfettered discretion to waive punitive measures against an individual “if the President determines that such a waiver is in the national interests of the United States.”^[4]

Without any reference to a criminal statute or a judicial process, the House appears to be using the word, “genocide” in a generic sense for a political purpose. A legislative “finding” is certainly not the equivalent of a criminal conviction.^[5] However, in light of the recent and controversial treatment of “enemy combatants,” executive reclassification of an individual’s legal status for judicial purposes has to be taken seriously. Common law crime of genocide, anyone?

The bill will also allow the U.S. President to deny entry at U.S. ports to Sudanese vessels and to cut off aid to countries violating U.N. Security Council resolutions that impose embargos on arms transfers to the Sudan. ^[6] Again, the U.S. President will be able to suspend sanctions for any purpose deemed to be in the “national interest.”^[7] The bill notes that on July 22, 2004, the joint houses of Congress declared that the events occurring in Darfur constitute genocide.^[8] It also calls on the Secretary of State to “designate the Janjaweed militia as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act.”^[9]

Speaking to the bill’s rationale, Senator Nancy Pelosi (R‑California) said yesterday that, “[t]his legislation contains critical initiatives to help make matters better: stop the violence, bring the parties to the table and get the humanitarian assistance to the people.”^[10]

Criminal Investigation
In March 2005, the United Nations Security Council passed Resolution 1593 in which it referred the situation in Darfur to the International Criminal Court (ICC) for criminal investigation.^[11] Although the United States is a voting member of the Security Council and participated in the referral, it is not a party to the Rome Statute of the ICC.

Humanitarian Mission
In a related development, Sudan announced today that it would lift the 10‑day old bar preventing United Nations Undersecretary for Humanitarian Affairs Jan Egeland from visiting the Darfur region.^[12] The Sudanese government cited security reasons as the need for the postponement. Egeland rejected this explanation, stating that “I think the main reason is that they don't want me to see the tens of thousands of people being displaced as we speak today."^[13]

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[1] Jim Abrams, House OKs Bill to Bar Sudan War Suspects, Guardian Unlimited, Apr. 5, 2006.
[2] Id.
[3] H.R. 3127, Darfur Peace and Accountability Act of 2006 [hereinafter HR3127], Sect. 5(c) [emphasis mine]. July 1, 2002 is the date the ICC’s Rome Statute went into effect and sets a temporal boundry for the Court’s jurisdiction. UN Resolution 1593 also refers to this date as the commencement of actionable international crimes in Darfur.
[4] HR3127 supra note 6 at Sect. 5(b). Prior notification to Congress is required, but no mechanism for objection is specified.
[5] 18 U.S.C. 50A § 1091. The federal genocide statute is limited to acts committed either on U.S. soil or by U.S. nationals.
[6] HR3127 supra note 6 at Sect. 6(c) and (d).
[7] HR3127 supra note 6 at Sect. 5(b).
[8] HR3127 supra note 6 at Sect. 3(1).
[9] HR3127 supra note 7 at sect. 4(2).
[10] Sudan: Pelosi: “Each Day We Wait, Hope in Darfur Disintegrates”, U.S. Congress Press Release, Apr. 6, 2006.
[11] U.N.S.C. Res. 1593, S/Res/1593 (2005).
[12] UN Official to be Allowed into Darfur Region, Chicago Tribune, Apr. 6, 2006.
[13] Egeland Accuses Sudan of Cover‑up, Aljazeera.net, Apr. 4, 2006. See also SUDAN: UN Humanitarian Envoy Criticizes Obstruction by Government, Reuters/IRIN News, Apr. 5, 2006.

War Crimes—Charles Taylor Update

Former Liberian leader Charles Taylor appeared before the Special Court of Sierra Leone on Monday to enter pleas of not guilty on all 11 counts of war crimes and crimes against humanity he faces under a recently amended indictment for alleged acts of international crimes.^[1]

Today Special Court Principal Defender Vincent O. Nmeheille signed an order declaring Mr. Taylor to be partially indigent for the purpose of assigning counsel and provisionally assigning Karim Asad Ahmad Khan, QC of London, to represent Mr. Taylor.^[2] However, Mr. Taylor’s family is reported to be in Freetown shopping for a defense team and funds.^[3]

As we discussed last week, Mr. Taylor may be tried by the Special Court outside of Sierra Leone. The Netherlands has agreed to host the trial in The Hague as soon as the United Nations Security Council passes a resolution authorizing the change of venue. The Special Court in Sierra Leone will take a judicial recess from April 10 to April 24.

The U.N. is also said to have contacted countries including Sweden to secure accommodations for Mr. Taylor in the case of a conviction and imprisonment.^[4] Article 22 of the Special Court Statute requires that terms of imprisonment resulting from the judicial process be served either in Sierra Leone or in any country having an enforcement agreement with the International Criminal Tribunal for Rwanda.^[5] Published reports indicate that there are more nations willing to imprison Mr. Taylor after his trial than there are that are willing to provide a safe haven in the event that he is acquitted on all charges.^[6]

In related matters, Charles Taylor’s son, Charles McArthur Emmanuel—aka Charles “Chuckie” Taylor”—was arrested for passport fraud this week in the United States. Today, a federal court in Florida ordered that the American‑born Taylor be held without bail.^[7]

Mr. Taylor was arrested at Miami International Airport upon his arrival from Trinidad. The charge is based on an alleged misrepresentation about his father’s identity on a recent passport application.^[8] The junior Mr. Taylor has not been charged with any international crimes.

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[1] Chief Prosecutor Welcomes the Successful Initial Appearance of Charles Taylor in Freetown, Sierra Leone, Special Court for Sierra Leone Press Release, April 3, 2006. The indictment was amended on March 15, 2006 to reduce the number of counts from 17 to 11. The amended indictment is available here.
[2] Principal Defender’s Decision to Provisionally Assign Counsel to Charles Ghankay Taylor, Case No. SCSL‑2003‑03‑I, April 5, 2006.
[3] Nico Colombant, Taylor Seeks Lawyer, Activists Want Useful Trial, VOA News [hereinafter VOA], April 5, 2006.
[4] VOA supra note 3. See also Sweden Contacted Over Prison Space for Taylor, Deutsche Presse-Agentur, April 5, 2006.
[5] Special Court for Sierra Leone Statute, art. 22.
[6] Court Trying to Find Nation to Take Taylor, Chicago Tribune, April 5, 2006.
[7] Charles Taylor’s Son Held in U.S., Associated Press, April 5, 2006.
[8] Id.

Genocide—Second Trial for Saddam Hussein

The Chief Investigating Judge for the Iraqi High Criminal Court (formerly the Iraqi Special Tribunal) Raed al‑Juhi announced today that he has referred a second set of international crimes charges against former Iraqi dictator Saddam Hussein.^[1] If approved by Court Investigative Judges, the second case could be set for trial as early as next month.^[2] Hussein and seven others have been on trial for charges of crimes against humanity since October 2005 for their alleged roles in the 1982 deaths of 143 Shi’ite citizens in the Kurdish city of Dujail.

The new charges are based on allegations of a 1980s Saddam‑led siege on the Kurdish region of Anfal, including a reported gas attack on Halabja, in which as many as 180,000 villagers are said to have died during a 3‑year period.^[3] The six co‑accused in the genocide charge include Saddam’s cousin Ali Hassan Majid, aka “Chemical Ali,” and former Defense Minister Sultan Hashim Ahmad.^[4]

Defense attorneys for Hussein, including former U.S. Attorney General Ramsey Clark, have called repeatedly for the recusal of Chief Justice Raouf Rasheed Abdel‑Rahman, alleging that his Kurdish heritage, his lifelong ties to the city of Halabja, and the alleged loss of family members in the 1988 attack render him impermissively biased.

Under the statute of the Iraqi High Court, Saddam could face execution if found guilty on the existing charges of crimes against humanity. However, President Jalal Talabani stated today that the Court may continue to indict and try him serially for additional acts of alleged international crimes and indicated that it would hold the execution of sentences until verdicts are reached on all of the charges.^[5]

Under Court rules, each indicted crime will be tried separately. Although the usual practice in other international criminal tribunals is to try multiple indicted crimes and to hear all evidence in a unified trial, the Iraqi High Court is a hybrid court, operating under a blend of international and Iraqi laws. ^[6] In the case of multiple charges, the High Court’s Rule 32(B) states that “[o]nly one crime can be indicted in case of accused [who] is alleged to have committed multiple crimes if those crimes are punishable pursuant to one article in one law [sic].”^[7] Genocide and crimes against humanity are listed in the Statute in separate articles.^[8]

Indictment Process
The Iraqi High Court was established under the guidance of U.S. occupying forces and operates under its own statute, rules of procedures and evidence, and criminal code, with reference to Iraqi laws on penalties and other matters. The process for bringing criminal charges against an individual involves the referral of a charge and a factual basis from the Chief Investigative Judge to an Investigative Judge(s).^[9] The investigative judge(s) may review physical and testimonial evidence during the course of an investigation.^[10] Finally, the investigative judge(s) will prepare an indictment upon a determination that a prima facie case exists, based on the evidence.^[11]

In the case of alleged crimes punishable by death, the Court automatically sets a date for trial without entertaining the possibility of a guilty plea. However, a guilty plea may be entertained only if it is part of a bargain in which the accused provides testimony against others to the Court.[12] By contrast, U.S. federal criminal rules allow a plea of guilty with or without cooperation.^[13]

Genocide
Article 11 of the Statute of the Iraqi High Court, has adopted the definition of genocide from the Geneva Convention on the Prevention and Punishment of the Crime of Genocide that “genocide means any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial or a religious group.”^[14] Enumerated acts include killing and forced transfer.^[15] Penalties upon conviction include a term of imprisonment of up to life or death by hanging.^[16]

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[1] Defiant Saddam to Face New Trial, Reuters [hereinafter Reuters], Apr. 4, 2006. See also Statute of the Iraqi High Criminal Court [hereinafter Statute], art. 8. See also Rules of Procedure and Evidence of the Iraqi Special Tribunal [hereinafter Rules], Rule 22.
[2] Reuters supra note 1.
[3] Reuters supra note 1.
[4] Hussein Charged With Genocide, CNN, Apr. 4, 2006.
[5] Hussein Charged with Genocide o f 180, 000 Kurds, Bloomberg News, Apr. 4, 2006, citing Agence France‑Presse.
[6] An exemplar of this unified trial practice is the recently closed case against Slobodan Milosevic at the International Criminal Tribunal for the Former Yugoslavia. Before his death, Mr. Milosevic was on trial under three indictments including charges of genocide, war crimes, and crimes against humanity based on events occurring in Kosovo, Croatia, and Bosnia in the 1990s.
[7] Rules supra note 1 at Rule 32(B).
[8] Statute supra note 1, art. 11 (Genocide) and 12 (Crimes Against Humanity)
[9] Rules supra note 1.
[10] Statute supra note 1, art. 18.
[11] Id. The standard that must be met in making a prima facie determination is not specified.
[12] Rules supra note 1 at Rule 37. See also Rule 38 invoking the exception by reference to the Iraqi Law on Criminal Proceedings, Para. 129 (“The examining magistrate may offer immunity with the agreement of the Criminal Court, for reasons recorded in the record, to any defendant accused of an offence, in order to obtain his testimony against others involved in its commission, on condition that the accused will give a full and true statement.”).
[13] Fed. R. Crim. Pro. 11.
[14] Statute supra note 1, art. 11.
[15] Id.
[16] Statute supra note 1, arts. 24 and 27 require that sentences conform to Iraqi laws. See also Iraqi Penal Code, para. 406 describing crimes of murder for which a death penalty may be imposed.

ICC—Initial Appearance, Prosecutor v. Lubanga

The initial appearance of Thomas Lubanga, the first individual accused of international crimes to be brought before the International Criminal Court (ICC) in The Hague, provides insight into some of the pre‑trial procedures set out in the Rome Statute, the Rules of Procedure and Evidence, and the Regulations of the Court.

Procedural Steps
The initial hearing process at the ICC includes three distinctive areas: Identification and Rights, Charge, and Defensive Entries. The initial hearing is conducted by a three‑judge Pre‑Trial Chamber as specified in Article 60 of the Rome Statute.^[1] With the exception of matters expressly reserved for the Appeals Chamber, the Pre‑Trial Chamber handles all judicial proceedings from initiation of an investigation to the confirmation of the charges.^[2]

Identification and Rights
The Pre‑Trial Chamber must determine that the person standing before the Court is the person identified in the arrest warrant. In the transcript of the hearing, Presiding Judge Claude Jorda of France asked Mr. Lubanga to confirm his name, date of birth, and profession.^[3] Mr. Lubanga did so, entering his profession as “politician.”^[4]

Under Article 60 of the Rome Statute, the Pre‑Trial Chamber must inform an accused of his or her Article 67 rights “upon the surrender of the person to the Court.”^[5] In the transcript of Mr. Lubanga’s hearing, Judge Jorda ascertained that Mr. Lubanga had heard these rights upon his arrival at the ICC detention center and reiterated in open court the “most important” rights, including the right to counsel, the right to be present at trial, the right to question witnesses, and the right not to testify.^[6] Judge Jorda also noted an accused’s consular and diplomatic rights under Regulations 97 to 106.^[7] Failure of the Chamber to make these statutory advisements can be grounds for appeal of a conviction later on.^[8]

Charge
Under Rule 60, after an accused has been surrendered to the Court, the Pre‑Trial Chamber must “satisfy itself that the person has been informed of the crimes which he or she is alleged to have committed.^[9] In the transcript of the hearing, Mr. Lubanga, through his attorney, waived his right to have the charges read from his arrest warrant.^[10] The Chamber accepted this waiver in satisfaction of the obligation to inform the accused of the charges.^[11]

An important distinction between the ICC and other international criminal tribunals is that the Prosecution is not required to have a formal indictment entered with the Court during the pre‑trial phase.^[12] Last week, we noted that under the Statute of the Special Court for Sierra Leone, Charles Taylor was required to enter a plea of guilty or not guilty on each charge in the indictment at his initial appearance before that Court.^[13]

Defensive Entries
Some of the issues that may be challenged in the initial appearance are the arrest warrant, the identity of the accused, the jurisdiction of the Court, and the admissibility of the case.^[14]

Mr. Lubanga did not contest any identity issues. However, through his provisional attorney Jean Flamme, Mr. Lubanga did reserve the right to challenge the arrest warrant and the admissibility of the case against him. He also challenged the legality of his detention in the Congo on state criminal charges. This last challenge may lay the groundwork for challenging the admissibility of evidence at trial, such as statements made to Congolese investigators, that may have been gathered during the one‑year detention period.

Finally, Mr. Lubanga deferred exercising his right to request interim release until the issues concerning the validity of the case can be settled.^[15] Had he made the request at his initial hearing, he might have waived his right to challenge jurisdictional issues during pre‑trial and trial proceedings.

Equality of Arms
Jean Flamme was appointed to serve as the “duty attorney” for Mr. Lubanga at the initial hearing. Mr. Flamme received notification that he would be appearing in court on the Friday that Mr. Lubanga was arrested and arrived in The Hague on the Sunday before the Monday morning hearing. He had very little time, formally, to meet his client, become acquainted with the case, and to devise a defensive strategy.

Under Article 67(1)(b), an accused has the right to “equality” in the adequacy of “time and facilities for the preparation of the defense.”^[16] In contrast, on Monday morning the Prosecutor’s table was staffed by five attorneys who, in all likelihood, have been working on this case since the matter was referred by the DRC in 2004.^[17]

A hearing to confirm the criminal charges against Mr. Lubango has been scheduled for June 27, 2006.^[18] Mr. Lubanga was surrendered to the ICC after being held on state criminal charges in Kinshasha, Congo for almost a year. He is being charged by the ICC on a yet‑to‑be‑determined number of counts of alleged war crimes.^[19]

In the next post on this topic, we will expand on procedural and substantive aspects of the defensive arguments and requests made during the initial appearance.

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[1] Rome Statute, art. 60 requires that the Pre‑Trial Chamber “satisfy itself that the person has been informed of the crimes which he or she is alleged to have committed, and of his or her rights under this Statute, including the right to apply for interim release pending trial.”
[2] Regulations of the Court 46. See also Rome Statute, art. 61(11) requiring that after the charges are confirmed, the President will constitute a Trial Chamber which “shall be responsible for all subsequent proceedings…”
[3] Transcript of Initial Appearance [hereinafter Transcript], Prosecutor v. Lubanga, ICC‑01/04‑01/06‑T‑3, Mar. 20, 2006.
[4] Id. at 3.
[5] Rome Statute, art. 60.
[6] Transcript supra note 4 at 3‑5.
[7] Transcript supra note 4 at 6
[8] Rome Statute, art. 81.
[9] Rome Statute, art. 60.
[10] Transcript supra note 4 at 7.
[11] Initial Appearance of Mr Thomas Lubanga Dyilo Before the Pre-Trial Chamber I, ICC Press Release ICC‑CPI‑20060320-128-En, Mar. 20, 2006.
[12] Rome Statute, art. 61(4) allows the Prosecutor to continue a criminal investigation and to add charges after providing the accused with a statement of charges prior to the confirmation hearing. See also art. 60(9) permitting additional charges to be added after the charges have been confirmed.
[13] SCSL Rules of Procedure and Evidence [hereinafter Rule], Rule 61.
[14] Challenges to jurisdiction and admissibility are addressed in the Rome Statute, arts. 17‑19.
[15] Transcript supra note 4 at 7‑10. See also Rome Statute, art. 60(2), “[a] person subject to a warrant of arrest may apply for interim release pending trial.”
[16] Rome Statute, art. 67(1)(b).
[17] Prosecutor Receives Referral of the Situation in the Democratic Republic of the Congo, ICC Press Release ICC-OTP-20040419-50-En, Apr. 19, 2004.
[18] Transcript supra note 4 at 8. See also Rule 121.
[19] Rome Statute, art. 61(9) permits an indictment to be amended even after the pre‑trial confirmation of the charges.

McNabb in the News (4-3-06)

C.M. Choate, an associate at McNabb Associates, has been quoted in April’s Security Management Magazine in an article on transnational money laundering.

But some experts note that the industry is trying to address these risks. Chris Choate, an associate with global criminal defense firm McNabb Associates, says he’s seen the high-profile online currency organizations taking proactive steps to prevent their services from being abused, such as conducting investigations on people opening accounts.

They have also established the Global Digital Currency Association (GDCA), which ranks member businesses “on four levels of security and trustworthiness,” Choate says. “They’re really trying for self regulation, because they don’t want governments telling them what to do,” Choate explains.
…
Choate says that concern over widespread money laundering or the abuse of online currencies by other criminals or terrorists seems to be “more hype than reality,” and that the government is concerned because it’s new, easy to use, and has the potential for anonymity. He says that apart from the few investigations mentioned in the government’s report, he’s not aware of any larger problem. “Maybe there’s some smoke but not necessarily any fire,” he says.^[1]

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[1] Peter Piazza, Technofile: Pinning Down Online Money Laundering, Security Management, Apr. 2006.