War Crimes—Denmark May Host Charles Taylor After Trial

On March 30, we noted that the international crimes trial of Charles Taylor at the UN‑backed Special Court for Sierra Leone probably will take place outside of Sierra Leone.^[1] The Netherlands has offered to provide detention for Mr. Taylor at the International Criminal Court (ICC) in The Hague from the time of his transfer until after trial proceedings are complete. However, the agreement to host the trial proceedings has been made contingent upon the issuance of a resolution from the United Nations Security Counsel and an assurance that Mr. Taylor will leave the country immediately after the trial.^[2]

So far, Sweden and Austria have both refused to provide post‑trial accommodations for Mr. Taylor.^[3] Yesterday, Denmark’s foreign minister, Per Stig Moeller, revealed that his country has received an informal request to act as host to Mr. Taylor, by providing either jail space or asylum.^[4] The Danish Parliament appears to be split with the Conservative Party, a block within the majority coalition, ready to act as host and the minority Danish People’s Party against taking on such a political and security hot potato.^[5]

Foreign Minister Moeller pointed out in his comments on Thursday that no decision can be made until Denmark receives a formal request from the United Nations.^[6] Early reports from the Associated Press cited a “European diplomat in New York” as stating that Denmark was also waiting for “a high-level request directly from the United States before it considered taking in Taylor.” ^[7] The report did not name the diplomat, saying only that he or she “spoke on condition of anonymity because the talks are secret and highly sensitive.”^[8]

The United States is leading the effort to negotiate all of the pieces needed before transfer proceedings can take place. Opposition has been entered by defense attorneys for Mr. Taylor, citing the need to locate the trial close to potential witnesses.^[9] Currently, Mr. Taylor is in the custody of the Special Court in Freetown, reportedly under the guard of a Swedish “rapid reaction force.”^[10]

Further trial proceedings are basically on hold until the criteria for transferring the matter to the Netherlands are satisfied. U.S. Ambassador to the UN John Bolton said today that “[w]e've certainly talked to the government of The Netherlands about [beginning the trial without an assurance that Mr. Taylor will leave immediately afterward]. So far, the Dutch have not been willing to do that and that's why we're continuing to search."^[11]

The precise reasons for the United States assuming such a leadership role in the international crimes trial of Charles Taylor are open to speculation. In spite of its notorious opposition to the establishment of a more broadly focused international criminal court, it may be simply that the U.S. is responding to the need to have an enforcement agreement in place before the Security Council can issue a resolution to enable the change of venue. It will be very interesting to know why Denmark was looking for a formal request from the United States before deciding whether to enter into an enforcement agreement with the Special Court.

Meanwhile, Liberia has not yet taken actions to freeze Mr. Taylor’s assets even though doing so would meet one of the conditions required before the United Nations will lift economic sanctions against the country’s timber and diamond industries.[14]

Transfer and Enforcement Agreements
After transferring the trial, the Special Court for Sierra Leone will maintain jurisdiction and will apply the law of its own hybrid statute and procedural texts to the facts in this case. Under its Statute, the Special Court follows the sentencing enforcement practices of the UN International Criminal Tribunal for Rwanda (ICTR) and Sierra Leonean national courts.^[12] Specifically, the Special Court maintains the “supervision” of a convicted individual, but may forge an enforcement agreement with any country having an existing enforcement agreement with the ICTR or the International Criminal Tribunal for the Former Yugoslavia (ICTY).^[13]

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[1] Denmark May Hold Liberia’s Taylor, Chicago Tribune, Apr. 20, 2006 (subscription).
[2] Jan M. Olsen, Denmark Asked to Take Taylor After Trial, Associated Press, Apr. 20, 2006 (updated 12:16 pm PT) [hereinafter AP].
[3] AP supra note 2.
[4] AP supra note 2.
[5] Danes Divided Over Warlord Jail Cell, Reuters, Apr. 21, 2006.
[6] AP supra note 2.
[7] Jan M. Olsen, Denmark Confirms It Has Been Asked to Accept Liberia’s Taylor, Associated Press, Apr. 20, 2006 (Released at 07:59 am, 08:09 am, 09:19 am, and 03:17 pm) [hereinafter AP early]. See also Nick Wadhams, US Keen for Denmark to House Taylor, Associated Press, Apr. 20, 2006 [hereinafter AP Wadhams].
[8] AP early supra note 7.
[9] AP supra note 2.
[10] AP supra note 2. See also AP Wadhams supra note 7.
[11] AP Wadhams supra note 7.
[12] SCSL Statute, art. 19.
[13] SCSL Statute, art. 22.
[14] George Borteh, Liberia: Govt Considers Freezing Taylor’s Assets, The Analyst, Apr. 19, 2006.

War Crimes—Serbs Arrest Mladic Allies, Press Gets Busy

According to the Belgrade daily Blic, two men alleged to have been assisting accused international crimes indictee Ratko Mladic were arrested today.^[1] The two men are identified as retired Serbia-Montenegro military admiral/pilot Stanko Ristic and his son Predrag.^[2] According to defense attorney Milomir Salic, the two have appeared in a Belgrade municipal court on charges of "suspicion of helping a perpetrator after the act.”^[3]

Former Serb commander Ratko Mladic was indicted originally in 1996 with Radovan Karadzic on 36 counts of genocide, war crimes, and crimes against humanity and has been the subject of an ever‑intensifying manhunt ever since.^[4] Recently, the European Union (EU) postponed the imposition of political and economic sanctions against Serbia‑Montenegro until April 30 in support of a new deadline for arrest and transfer set by the Chief Prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY).

Each time a deadline approaches in the search for Mladic, news agencies light up with reports, rumors, and innuendo about progress toward capture of fugitive Mladic. Notably, none of the reports mention co‑indictee/fugitive Radovan Karadzic. Here is a sample:

• Referring to possible implications from the arrests made today, Blic news quoted an unnamed but “reliable” source as saying that “"The arrest fully tightened the noose around Mladic. His arrest might also be expected soon."^[5]
• The regional news agency Focus quotes the Montenegran news service, MINA (citing the Serb tabloid Kurir) as forecasting a May 1 arrest of Mladic pursuant to collaborative search in the Balkans states by MI-6, the CIA, and Serb Information and Security Agency officials.
• The Banja Luka daily Fokus is reporting that Mladic has been located at a vacation resort along Dojran Lake near the border with Greece, purportedly staying in a hotel owned by a Greek businessman engaged in oil deals with Serbia and Republika Srpska.^[6]
• The same report in Fokus states that Serbian Prime Minister Voislav Kostunica supports immediate transfer to The Hague if an arrest is made, but is seeking have the capture take place outside Serbia.^[7]
• The B‑92 news agency reports that Jovan Simic, a Serb presidential advisor, has stated that the Serbian Government will immediately extradite Mladic once he is in state custody.^[8]
• News agency Makfax reports that the investigative team said to be searching the area consists mainly of British MI6 intelligence agents and other foreign intelligence staff.^[9]
• B‑92 also reports that Mladic carries a poison pill with him at all times for use in case he is captured.^[10]
  

Interpol Red Notice
Interpol issued a red notice for Mladic in 1995.^[11] Oddly, among the 9 red notices issued for individuals sought by the ICTY there is no public red notice for high‑profile indictee Radovan Karadzic.^[12] In the original ICTY indictments, Mladic and Karadzic were named jointly on 36 counts of international crimes.^[13] In 2000 and 2002, the indictments were amended to charge each man separately.^[14] It has long been rumored that Karadzic was given a promise of immunity from international prosecution by United States and United Nations negotiators during the Dayton Accord talks in exchange for accepting voluntary exile.^[15]

The red notice, often incorrectly referred to as an “international arrest warrant,” alerts and invokes the cooperation in locating and arresting the named suspect. The 184 cooperating nations receive the notice through their National Central Bureaus.

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[1] Mladic’s Accomplices Arrested? B‑92 [hereinafter B‑92], Apr. 20, 2006.
[2] Id.
[3] Serb Ex‑Colonel Held in Drive to Get Mladic—Report, Reuters, Apr. 20, 2006.
[4] Indictment (“Srebrenica”), Prosecutor v. Karadzic and Mladic, IT‑95‑5‑I, Nov. 14, 1995 (20 counts). See also Indictment (“Bosnia‑Herzegovina”), Prosecutor v. Karadzic and Mladic, IT‑95‑5‑I, July 1995 (16 counts) [hereinafter Indictments].
[5] Reuters supra note 3.
[6] Banjaluka’s Daily Fokus Claims Mladic Located in Macedonia [hereinafter Makfax], Makfax News, Apr. 20, 2006.
[7] Id.
[8] B-92 supra note 1.
[9] Makfax supra note 6.
[10] B-92 supra note 1.
[11] Red notice for Ratko Mladic is published on the Interpol website.
[12] Red notices for all 9 ICTY fugitives available on the Interpol website here. Some older web pages, including the Wikipedia bio on Karadzic, include broken links to an “Interpol Warrant” for Radovan Karadzic.
[13] Indictments supra note 4.
[14] Amended Indictment, Prosecutor v. Karadzic, IT‑95‑5/18‑I, Apr. 28, 2000. See also Amended Indictment, Prosecutor v. Mladic, IT‑95‑5/18‑I, Oct. 10, 2002.
[15] Nick Hawton, Karadzic Wife Denies Helping Husband, BBC, Mar. 16, 2004. See also Mladic and Karadzic Arrest Story, Bildt Comments (blog by former Swedish Prime Minister and UN Secretary‑General Special Envoy for the Balkans ), Mar. 1, 2006.

International Crimes—Right to Defense Counsel of Choice

Yesterday at the United States Supreme Court, the justices heard oral arguments on the question of whether or not the American constitutional right of criminal defendants to be represented by counsel should be read to be the right to have counsel of the defendant’s choosing.^[1] This question has already been decided in the negative for defendants appearing before the International Criminal Tribunal for the Former Yugoslavia (ICTY).^[2] It is likely that at some point, the International Criminal Court (ICC) may be asked to consider the same issue.

ICTY
There is strong legal precedent at the ICTY limiting a defendant’s right to retain counsel of his or her choosing. In the case against one of the world’s most known pro se criminal defendants, the late Slobodan Milosevic, the debate was framed as a question as to whether or not the Tribunal has the authority to impose assigned defense counsel against a defendant’s will. A corollary issue was whether or not the representation of an unwilling and uncooperative client places defense attorneys in breach of their ethical obligations.

In February 2005, after an extensive process of hearings, interlocutory appeals, and administrative orders, then‑President Theodor Meron, affirmed the Registrar’s denial of assigned defense counsel’s request to withdraw from representing the client who refused their assistance.^[3]

The assigned defense counsel, British barristers Steven Kay, QC, and Gillian Higgins, argued that under the ICTY Code of Conduct Mr. Milosevic’s unwillingness to cooperate required their withdrawal from the case.^[4] President Meron noted in his decision that the Appeals Chamber in Blagojevic had considered the question of the defendant’s refusal to cooperate with assigned defense counsel, coupled with his request to retain a different attorney of choice. In Milosevic, Meron echoed that decision in quoting that “an accused does not have the right to unilaterally destroy the trust between himself and his counsel.”^[5] Thus, assigned counsel’s “professional obligations to continue to represent the accused remain” in the face of noncooperation.^[6] The President extended the holding in Blagojevic to situations in which the defendant does not seek to replace his counsel with a different attorney of choice.

During the course of the debate, the ICTY Association of Defense Counsel submitted an advisory opinion arguing that withdrawal in the face of an uncooperative defendant was consistent with the ethical obligations of assigned counsel under the applicable Code.^[7] President Meron agreed but found that denying the request to withdraw did not place Kay and Higgins in actual breach of their ethical obligations.

ICC
The ICC has not had an occasion to examine the counsel‑of‑choosing question yet. However, looking at the Rome Statute and relevant procedural and ethical guidelines at the ICC, it is likely that the Court will be inclined to impose defense counsel on unwilling defendants “in the interests of justice.”

The language of Article 67(1)(d) of the Rome Statute is identical to Article 21(4)(d) of the ICTY Statute in stating that, “the accused shall be entitled…to conduct the defence in person or through legal assistance of the accused’s choosing…and to have legal assistance assigned by the Court in any case where the interests of justice so require…”^[8]

The choice of counsel is not absolute, but is limited by the ICC rule that require a showing of competence to be heard before the Court.^[9] By focusing on substantive qualifications—actual and substantial experience in criminal and international law—the type of “My Cousin Vinny” situation now before the U.S. Supreme Court is not likely to arise. However, from a practical aspect, it also is not clear who and how the determinations of competence will be made at the ICC.

Like the ICTY, the ICC Registrar has the authority to make decisions about assignment of defense counsel. However, there is no comparable legal document at the ICC to the ICTY Assignment of Defense Counsel. Ethical obligations of defense attorneys are prescribed in the ICC Code of Conduct for Counsel. Under Article 13, an attorney may refuse to take on a representation agreement for cause or with no cause. However, once a representation commences, termination must be granted by the Trial Chamber and only two reasons relating to client are foreseen when:

• “The client insists on pursuing an objective that counsel considers repugnant; or
• The client fails to fulfil [sic] an obligation to counsel regarding counsel’s services and has been given reasonable warning that counsel will withdraw unless the obligation is fulfilled.”^[10]

Decisions in other courts are not binding on the ICC. Moreover, Article 21 of the Rome Statue sets out a hierarchy of applicable laws that does not expressly include the case law of other international courts.^[11] However, the Court is not prohibited from considering case law from other international courts in reaching its legal conclusions.

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[1] Gina Holland, Justices Weigh Defendants’ Right to Lawyer, Associated Press, Apr. 18, 2006.
[2] Decision Affirming the Registrar’s Denial of Assigned Counsel’s Application to Withdraw [hereinafter Decision], Prosecutor v. Milosevic, IT‑02‑54‑T, Feb. 7, 2005. See also Assigned Counsel’s Motion for Withdrawal With Annex A, Nov. 8, 2004 (not available online at the time of this post).
[3] Id. See also Decision of the Registrar, Prosecutor v. Milosevic, IT‑02‑54‑T, Dec. 14, 2004 (not available online at the time of this post). Directive of Assignment of Defense Counsel, art. 19, requires that issue of assignment of counsel be allowed to run its course as an administrative matter before the Trial Chamber may take up the question as an independent judicial matter.
[4] Code of Professional Conduct for Defence Counsel Appearing Before the International Tribunal, July 12, 2002. Decision supra note 2 at para. 8.
[5] Decision supra note 2 at para. 9. See also Decision on Appeal by Vidoje Blagojevic to Replace his Defence Team [hereinafter Blagojevic], Prosecutor v. Blagojevic, IT‑02‑60‑AR73.4, Sept. 15, 2003, at para 53.
[6] Decision supra note 2 at para 9. See also Blagojevic supra note 5 at para. 54.
[7] Advisory Opinion, ICTY Association of Defence Counsel, Nov. 10, 2004 (not available online at the time of this post).
[8] Rome Statute, art. 67(1)(d). See also ICTY Statute, art. 21(4)(d).
[9] ICC Rules of Procedure and Evidence 22.
[10] ICC Code of Conduct for Counsel, art. 18.
[11] Rome Statute, art. 21.

ICC—Mutual Assistance Agreement Signed with EU

On April 10, the International Criminal Court (ICC) in The Hague signed a new cooperative agreement with the European Union (EU).^[1] The agreement covers many areas of mutual relations including mutual assistance and cooperation, protections for EU staff testifying before the ICC, and reciprocal representation at meetings. Upon its entry into effect on May 1, 2006, a new European Union Focal Point for the Court will also be established to monitor and implement the Agreement.^[2]

This is the third mutual assistance agreement signed between the ICC and an international organization. The first agreements were negotiated with the United Nations and with Interpol. The Court is also said to be negotiating a similar agreement with the African Union.^[3] Although bilateral or multilateral cooperation agreements typically are negotiated between sovereign states, it is possible for non-sovereign entities to enter into mutually binding agreements by establishing—usually through enactment of law or consensus, or both—and asserting their legal personalities.

The legal personality of the ICC was created by consensus‑based operation of law when the Rome Statute entered into effect in 2002.^[4] Specific forms of mutual cooperation between the ICC and its states parties are detailed in Article 93.^[5] Participation as a state party to the Rome Statute is implicitly limited to sovereign states only in Article 125(3).^[6]

Although built as an entity by the will of sovereign states, it is interesting that the ICC is now expanding its independence through a structure of interdependence with non‑sovereign entities. In part, this is a simple practicality based on the fact that sovereign nations may become obligated to cooperate with the ICC by becoming a party to the Rome Statute while non‑sovereign nations may not. In part, it reflects the globalization and centralization of international criminal law.

ICC Cooperative Agreements
European Union (2006)
The newest bilateral agreement is styled after the agreement with the UN and covers areas of mutual assistance and representation, exchange of information, security issues, and general relations.^[7]

Interpol (2005)
The Co-operation Agreement between the Office of the Prosecutor of the International Criminal Court and the International Criminal Police Organization—Interpol entered into force in 2005. It specifies the terms of mutual assistance, cooperation with criminal investigations, and shared information.

United Nations (2004)
The Relationship Agreement between the ICC and the UN was approved in 2004 by the states party to the Rome Statutes as a step in the creation of the Court as an independent international entity.^[8] It specifies the relationship between the two entities including mutual assistance and representation, exchange of information, and administrative cooperation.

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[1] The International Criminal Court and European Union Sign an Agreement on Cooperation and Assistance, ICC Press Release ICC-CPI-20060410-132-En, Apr. 10, 2006.
[2] Id.
[3] Id.
[4] Rome Statute, art. 4. (“The Court shall have international legal personality.”)
[5] Rome Statute, art. 93.
[6] Rome Statute, art. 125(3). (“This Statute shall be open to accession by all States.”)
[7] A draft of the ICC‑EU Agreement was not available online at the time of this post.
[8] Rome Statute, art. 2.

McNabb in the News (4-17-06)

Senior Principal Douglas McNabb has been quoted in a Las Vegas Review-Journal article about Clark County Commissioner Erin Kenny, who is facing less than four years in prison for taking bribes.

Douglas McNabb, a (n)... attorney who specializes in white-collar federal cases, explained that targets of federal criminal investigations such as Kenny sometimes offer to "proffer" information about other illegal acts to the government when they are considering cooperating with authorities against other targets. In exchange, the government agrees not to prosecute them for giving up this information.

"It's basically, 'Anything I tell you that you don't know about, you can't use directly against me,'" McNabb said. "But they can use it to go after others."

Although Kenny has not been charged for accepting an illegal payment from Davidson, the developer was indicted last year on charges related to bribing Kenny.

"If she disclosed that information to the government under a proffer letter, then they don't charge her and it can't be used at sentencing to increase her sentence," McNabb said. "They could've also worked out a deal not to go after her assets."

…

McNabb, the ... legal expert, said it is more likely Kenny will receive a fine between $100,000 and $150,000.

"This lady got in fairly early in the process and has provided a substantial amount of information and assistance to the government," McNabb said.

…

But it does not appear government tax collectors intend to pursue civil action against Kenny. The statute of limitations for IRS auditors to go after Kenny is three years.

McNabb said the clock started ticking under that statute of limitations when Kenny signed her plea agreement in May 2003, meaning only weeks remain for authorities to pursue a civil case.^[1]

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[1] Mike Kalil, Political Corruption Trial: Plea Deal’s Message Criticized, Las Vegas Review-Journal, Apr. 16, 2006.

War Crimes—Kovacevic Found Unfit for ICTY Trial

In the first ruling of its kind, the Trial Chamber I of the International Criminal Tribunal for the Former Yugoslavia (ICTY), Judge Alfons Orie presiding, has found an international criminal defendant unfit to stand trial.^[1]

Vladimir Kovacevic, also known as "Rambo," is the first individual to be found lacking the legal capacity to enter a plea and to stand trial before the ICTY. In making its determination, the Trial Chamber endorsed the standard first applied in 2004 by the Trial Chamber II, Judge Kevin Parker presiding, in Prosecutor v. Strugar. However, in that case Strugar, a former co‑defendant with Kovacevic and three others, was pronounced fit to stand trial.

Details of the medical condition affecting Mr. Kovacevic’s legal capacity have been kept confidential. However, Mr. Kovacevic’s mental health was evaluated initially by order of the Belgrade Central Prison before his transfer to the ICTY and subsequently by psychologists and neuropsychiatrists.^[2]

Legal Test
The Trial Chamber applied the criteria in Strugar to the requirement found in Article 20(3) of the ICTY Statute that the Trial Chamber “shall…confirm that the accused understands the indictment.”^[3]

In Strugar, the Trial Chamber held that the Tribunal holds the competence to decide whether or not a defendant is fit to stand trial by meeting six requirements that inclusively demonstrate “a capacity to:

• Understand the purpose, including the consequences of the proceedings,
• Understand the course of the proceedings, including the nature and significance of pleading to the charges,
• Understand the evidence, and
• Testify (should the accused so choose).”^[4]

The threshold is not a high­‑level capacity to understand and participate, but merely the capacity to plead, understand the charges, understand the proceedings, understand details of the evidence, instruct counsel, understand the consequences of the proceedings, and testify “at such a level that it is possible for the accused to participate in the proceedings (in some cases with assistance) and sufficiently exercise the identified rights, in other words make his or her defence.”^[5]

The Trial Chamber found support for this rule through a comparison of similar practices in national courts including the United States, United Kingdom, Australia, the Netherlands, and Belgium.^[6] No mention was made of the criteria for fitness to stand trial in criminal courts, past or present, in the former Yugoslavia.

Procedure
Under the Rules of Procedure and Evidence, the defense may raise the issue of mental or physical capacity at the initial appearance before the Tribunal (Rule 47) and at pre‑trial status conferences (Rule 65bis).^[7]

Although the procedure for making a fitness determination is not expressly described in the ICTY Rules of Procedure and Evidence, in this case the Trial Chamber held evidentiary hearings at which medical experts presented findings of their examinations of Mr. Kovacevic. The hearings were held before and after a Chamber‑ordered 6‑month treatment period.^[8]

The Trial Chamber answered all six capacity questions in the negative, minor discrepancies between individual expert reports notwithstanding, and declared Mr. Kovacevic unfit to enter a plea or to stand trial “without prejudice to any future criminal proceedings against him should his mental health condition change.”^[9]

Background
Vladimir Kovacevic, a former Commander of the Third Battalion of the Yugoslav National Army Motorised Brigade, was originally indicted in February 2001 on 16 counts of war crimes related to a 1991 attack on Dubrovnik.^[10]

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[1] Vladimir Kovacevic Declared Unfit to Stand Trial, ICTY Press Release OK/MOW/1069e, April 12, 2006.
[2] Prosecutor v. Kovacevic, Public Version of the Decision on Accused’s Fitness to Enter a Plea and Stand Trial [hereinafter Kovacevic], IT‑01‑42/2‑I, Apr. 12, 2006. All specific references to the diagnosis have been redacted from the public version of this decision.
[3] ICTY Statute, art. 20(3). See also Prosecutor v. Strugar, Decision re the Defence Motion to Terminate Proceedings, IT‑01‑42‑T, May 26, 2004.
[4] Kovacevic supra note 2.
[5] Kovacevic supra note 2 at paras. 27 and 29.
[6] Kovacevic supra note 2 at para. 28 and ftnt. 27.
[7] ICTY Rules of Procedure and Evidence.
[8] Kovacevic supra note 2 at paras. 4-20.
[9] Kovacevic supra note 2 at Disposition.
[10] Prosecutor v. Kovacevic, Indictment, IT‑01‑42, Feb. 23, 2001. See also Prosecutor v. Kovacevic, Second Amended Indictment, IT‑01‑42, Oct. 17, 2003. The amended indictment reduced the charges to 6 counts of war crimes. See also the Trial Chamber’s order to sever the case against Kovacevic in Prosecutor v. Strugar and Kovacevic, Decision on the Prosecutor’s Motion for Separate Trial and Order to Schedule a Pre‑Trial Conference and the Start of the Trial Against Pavle Strugar, IT‑01‑42‑PT, Nov. 26, 2003.