Inciting Genocide—ICTR Sentences Serugendo to 6 Years

Former radio station director Joseph Serugendo was sentenced to six years in prison today by the United Nations‑backed International Criminal Tribunal for Rwanda (ICTR).^[1] Mr. Serugendo is the sixth person to have accepted responsibility for genocide before the Tribunal.^[2]

Mr. Serugendo was originally indicted by the ICTR on July 22, 2005 on five counts of genocide and crimes against humanity and was arrested in Gabon on September 16, 2005.^[3] On March 15, 2006, he pled guilty to two counts of direct and public incitement of genocide under Article 2(3)(c) of the ICTR Statute and persecution as a crime against humanity under Article 3(h).^[4]

Mr. Serugendo was a former board member of the Radio Television Libre des Mille Collines (RTLM).^[5] In his allocution, Mr. Serugendo admitted to using his influence with broadcasting agencies to spread incendiary propaganda during the 1994 massacres in Rwanda.

Mr. Serugendo will be transferred to a prison facility in a cooperating host country to begin serving his sentence. In imposing the sentence, the Trial Chamber I, comprised of Judge Erik Møse, presiding. Judge Jai Ram Reddy, and Judge Sergei Alekseevich Egorov, recognized Mr. Serugendo’s serious health conditions and instructed the Registry that he receive appropriate medical treatment during his incarceration.^[6]

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[1] 6 Years for Man Who Urged Tutsi Killings on Radio, Reuters, June 2, 2006. NOTE: The ICTR final judgment in this case was not publicly available at the time of this post.
[2] Genocide Suspect Pleads Guilty to UN Court, Xinhua, June 2, 2006.
[3] Initial Appearance, Prosecutor v. Serugendo, ICTR‑05‑84‑I, September 30, 2006.
[4] Joseph Serugendo Sentenced to Six Years Imprisonment, ICTR Press Release ICTR/INFO-9-2-478.EN, June 2, 2006 [hereinafter ICTR Press Release].
[5] Rwandan War Crimes Suspect Sentenced to 6 Years Imprisonment by UN Court, UN News Centre, June 2, 2006.
[6] ICTR Press Release supra note 3.

ICC—Lubanga Pre‑Trial Delays Tied to Safety Concerns

Last week we reported that the confirmation hearing in the International Criminal Court (ICC) case against Thomas Dyilo Lubanga has been continued from June 27 to September 28, 2006. This week, the ICC Chief Prosecutor Luis Moreno Ocampo stated that the delay is attributable to the need for increased security measures for victims and witnesses in the case.^[1] In a press briefing yesterday, he stated that "I have requested this postponement because of the resurgence of violence in Ituri which poses the problem of the protection of witnesses.”^[2]

The technical reasons for the delay lie in the Court’s web of procedural rules, the Pre‑Trial Chamber’s interpretation of how the system of disclosure for evidence to be used in a confirmation hearing will work, and a need to provide both sides with adequate time adjust and prepare for the hearing.^[3] Mr. Moreno Ocampo has left the door open for additional delays in the timetable set for this phase of the case.

System of Disclosure
In its Decision on the Final System of Disclosure, the Pre‑Trial Chamber held that the prosecution must include the identities and unredacted statements of witnesses on which it intends to rely at the confirmation hearing.

Rules
Under Rule 121(3), the Prosecution must submit a Prosecution Charging Document and List of Evidence 30 days before the hearing date.^[4] However, the Pre‑Trial Chamber has agreed that the list could not include the identities of all witnesses until adequate protective measures are in place.^[5] At an ex parte hearing on May 24, the Victims and Witnesses Unit (VWU) testified that those measures could not be in place before the end of August 2006.^[6]

Under Articles 61 and 67 of the ICC Statute, the defense must have adequate time to prepare to challenge the evidence offered by the prosecution at the confirmation hearing.^[7] The Pre‑Trial Chamber has noted that Mr. Lubanga is represented by a two‑person defense team.^[8] The prosecution team consists officially of the Chief Prosecutor, a Deputy Prosecutor, and a Senior Trial Attorney. Since Mr. Lubanga’s case is the only international crimes trial before the Court at this time, it has little competition for the use of the extensive OTP resources.

Timetable

• By August 28, 2006, the OTP must provide the following information to the defense:
  
  --All potentially exculpatory evidence;
  --Names of witnesses, plus any redacted statements; and
  --Prosecution’s Charging Document and List of Evidence, linking each piece of evidence to a fact and each fact to an element of a crime or a mode of liability.
  
  This date could be affected by how quickly the VWU is able to put witness protection measures into place.
  

• The defense must have access to evidence that it is entitled to inspect (as opposed to evidence that must be disclosed) by August 31. It may inspect all tangible evidence until September 18, 2006. These dates could be affected by how quickly the VWU is able to put sufficient witness protection measures into place.
  

• The defense must file its list of evidence and requests for exceptions to disclosure by September 12, 2006.
  

• The parties will hold status conferences on June 23, July 14, August 17, September 4, and September 19, 2006.^[9]
  

• The confirmation hearing will be held on September 28, 2006.

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[1] DRC‑Sudan‑Uganda: ICC Defers Militia Leader’s Hearing, IRIN, June 1, 2006. At the time of this post, the Chief Prosecutor’s statement was not available from the ICC website.
[2] Id.
[3] The confirmation hearing is the mechanism for finalizing the charges against a defendant. If the Pre-Trial Chamber accepts the charges, a Trial Chamber will be constituted to proceed with the trial phase of the case.
[4] ICC Rules of Procedure and Evidence 121(3).
[5] Decision on the Postponement of the Confirmation Hearing and the Adjustment of the Timetable Set in the Decision on the Final System of Disclosure, May 24, 2006 [hereinafter Decision].
[6] Decision, supra note 4 at pg. 4, citing ICC Realtime Transcript, ICC-01/04-01/06-T-7-EXPNODEF-EN, May 23, 2006.
[7] Rome Statute, arts. 61(3) and 61(6) and 67.
[8] Decision supra note 4 at pg. 5.
[9] Decision supra note 4 at pg. 6-9.

Slobodan Milošević—In‑House Inquest Complete

The International Criminal Tribunal for the Former Yugoslavia (ICTY) today released a 42‑page report in which it states unequivocally and for the record that there was no foul play surrounding the recent death of accused war criminal Slobodan Milošević.^[1] Mr. Milošević died, according to the report, of natural causes while sleeping in his cell at the United Nations Detention Unit (UNDU) in The Hague on Saturday, March 11, 2006.^[2]

The report, prepared by ICTY Judge Kevin Parker, summarized his examination of forensic evidence, an extensive review of Mr. Milošević’s medical files, and a review of the security procedures within the Detention Unit. Not surprisingly, he did report finding some breaches in the security. However, his conclusions regarding the likely sources and remedies should not be taken as conclusive.

As evidence of those breaches, Judge Parker cited instances in which it could be shown that Mr. Milošević had been able to either shun his prescribed medications, alter his dosages, or self‑medicate. Judge Parker concluded that “[i]n these circumstances it cannot be concluded that there was a failure to provide proper care."^[3]

However, Judge Parker arguably overreached in his assessment by impugning the rights of the accused before the Tribunal when he stated that “[t]he unique arrangements established at UNDU to enable Mr. Milošević to conduct his own defence compromised the security at UNDU.”^[4] He advised that “[s]pecific training should also be given to enable staff to be clear of the effects on their normal powers and duties of any such arrangements.”

In spite of the soft‑peddled rejoinder, it would be easy for the Tribunal to use the disappointment of Mr. Milošević’s death to further restrict a defendant’s statutory right to counsel of his choice. To use security concerns to undermine the fairness of the judicial process in matters of such overriding international concern could only cheapen the work of the Tribunal.

Milošević’s brother, Borislav Milošević, today disputed the report, charging that the ICTY was to blame for denying the opportunity for adequate and appropriate treatment.^[5] He alleged that officials were willfully ignorant of serious underlying conditions and charged that lapses in the security of the Detention Unit caused a preventable death in the case of his brother.^[6]

The findings today confirm the conclusions of a Swedish team earlier this month that audited the Detention Unit generally.^[7] The team reported that during its “unbridled access” to the Unit, it heard no complaints from any of the guests.^[8] However, that report focused more on managerial and administrative processes than on security issues.

Judge Parker concluded by recommending that emergency procedures be “clarified” in order to streamline the Unit’s ability to respond to medical situations and that the Unit’s policies regarding the confidentiality of medical records be reviewed.^[9]

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[1] Release of Internal Report into Slobodan Milosevic’s Death, ICTY Press Release, LM/MOW/1081e, May 31, 2006.
[2] Report to the President: Death of Slobodan Milošević, May 30, 2006 [hereinafter Report].
[3] Report supra note 2 at para. 10
[4] Report supra note 2 at para 11.
[5] Arthur Max, Tribunal: Milosevic Defied Docs' Orders, Associated Press, May 31, 2006.
[6] Id.
[7] Tribunal Welcomes Independent Audit of its Detention Unit, ICTY Press Release LM/MOW/1078e, May 15, 2006.
[8] Id.
[9] Report supra note 2 at paras. 12-14.

Crimes Against Humanity—Saddam Defense Shortchanged

Now that the defense case is underway at the Iraqi High Criminal Court in Baghdad, defense attorneys for Saddam Hussein and his co‑defendants are finding out what an uphill battle really looks like.^[1]

Chief Judge Raouf Abdel-Rahman is continuing to give indications that he may be conducting the trial from two different play books. Today the Court refused to allow the defense to enter video footage allegedly showing Iraqi Chief Prosecutor Jaafar al-Moussawi at a 2004 ceremony in Dujail with several individuals who later became witnesses for the State. The footage, offered in support of the defense theory that the Chief Prosecutor knew of the witnesses’ role in the Dujail killings and failed to present it during testimony, was refused pending a written request. By contrast, earlier in the case the Court allowed the prosecution to introduce video evidence on the fly.^[2]

Defense attorneys also protested today that the Court’s failure to offer adequate security to witnesses and defense team member had resulted in the murder of another witness. Although the claim has not yet been substantiated, the trial has already been well‑spattered with the blood of both defense attorneys and witnesses. The argument that the Court’s lack of security is putting a deep chill on the ability of the defense to present its case fully cannot be dismissed.

However, Abdel‑Rahman did agree to provide extended protective custody for one witness long enough to investigate the testimony given in open court today that several of the alleged Dujail victims are still alive.^[3]

The value of this testimony, should it prove to be true, is that it could serve to undermine the credibility of the Court’s case against the defendants—a tactic that would play much better in front of a jury. However, it will be difficult to use the fact that some of the alleged victims were not killed to attack the prosecutor’s case on the elements of the alleged crime itself.

Crimes against humanity, like genocide, are primarily crimes of intent. They are characterized by the requirement that a specific malefic intent be connected to the awareness of a larger and more systematic assault on some grouping of a population. It is not necessary that all members of the population be targeted, or that all victims be subjected to the same treatment, or even that there is any particular number of victims.

Under Article 12 of the statute of the Iraqi High Criminal Court, an individual may be found guilty of crimes against humanity for “any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”^[4] The enumerated acts include willful murder, enslavement, forced transfer or disappearance, rape, torture, and “other inhumane acts of similar character.”^[5]

Finally, the Chief Judge attacked defense requests to expand its list of witnesses by stating that “[t]he key is not the number of witnesses, but the quality of their testimony. If you come with 100 witnesses but they aren't effective for your defense ... the court won't take it." It remains to be seen whether the Court intends to use this reasoning exclude testimonial evidence en masse or whether it simply indicates that the Court is growing impatient with having to sift through lists of potential witnesses submitted on an ad hoc basis or without an apparent connection to the events in question.^[6]

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[1] Sinan Salaheddin, Saddam Defense Claims Unfair Treatment, Associated Press, May 30, 2006.
[2] Sinan Salaheddin, Defense: Witness in Saddam Trial Killed, Associated Press, May 30, 2006.
[3] AP supra note 1.
[4] Iraqi Higher Criminal Court Statute, art. 12(1).
[5] Id. at art. 12(1)(j).
[6] AP supra note 1.

McNabb in the News (5-28-06)

Senior Principal Douglas McNabb was quoted in The Sunday Independent regarding Frederick Russell and his extradition battle in Ireland.

Justice Peart gave the American 15 days to make arrangements for his return and ordered him to spend the intervening period in jail. These 'arrangements' will be a lot more serious than packing bags and booking flights, according to international extradition lawyer Douglas McNabb.

McNabb said: "he will be handcuffed at the waist, wrists and ankles before being flown home and held in a maximum lockdown prison environment until his trial. "Russell fled to Ireland after the car crash near his hometown in Pullman, in the east of Washington states. He was due to stand trial for 'vehicular homicide'—similar to death by dangerous driving—after the high-speed collision in June 2001.^[1]

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[1] Larissa Nolan, Fugitive Russell Set to Fight Extradition in Highest Court, Sunday Independent (Ireland), May 28, 2006.